2006 Delaware Code - Subchapter III — Trespass Actions

§ 9611. Statement of injury; affidavit denying agency; counterclaims, cross-claims and third-party actions.

(a) In trespass actions under § 9301 of this title, before the summons is issued, the plaintiff shall file a written statement under hand describing the injury of which the plaintiff complains. Service of a summons in an action under this subchapter shall be the same as with service of a summons in an action under subchapter II of this chapter.

(b) When the statement of injury alleges the operation of a vehicle by a servant, agent or employee of defendant, it shall not be necessary for the plaintiff at the trial to prove that the person operating the vehicle was a servant, agent or employee of the defendant or that the servant, agent or employee of the defendant was at the time of the occurrence for which the action is brought operating the vehicle in and about the course of his or her duties as a servant, agent or employee of defendant. These facts shall be taken to be admitted as alleged in the statement of injury unless the defendant, or when there is more than one defendant, some one of the defendants, shall have filed, at the latest upon the second day before the time fixed for trial, an affidavit denying that the operator of the vehicle was operating it as a servant, agent or employee of defendant, or that the operator of the vehicle was operating it in and about the course of his or her duties as a servant, agent or employee of defendant.

(c) Counterclaims, cross-claims and third-party actions shall be permitted in all civil actions in accordance with the Civil Rules of the Justice of the Peace Courts. (Code 1852, § 2196; Code 1915, § 4064; Code 1935, §§ 4545, 4545A; 44 Del. Laws, c. 174; 10 Del. C. 1953, § 9611; 58 Del. Laws, c. 211; 65 Del. Laws, c. 31, § 1; 70 Del. Laws, c. 186, § 1.)

§ 9612. Form of summons.

The summons under this subchapter shall be in the following form:

"........... . County, ss. The State of Delaware,

To any constable, greeting:

We command you to summon A. B. (the defendant) to appear before C. D., one

of our justices of the peace, at said justice's office in........... . (place)

on........... . (day) the........... . day of (month) at,..... . (hour)

o'clock in the morning (or afternoon) to answer to E. F. (the plaintiff) in an

action of trespass for (describe the injury as in the statement filed)

whereupon damages to the sum of........... . are claimed; and have you then

there this warrant.

* * * *

* * Witness the hand and seal of the said justice the

* L. S. * . day of ............................... A.D. 19... ."

* *

* * * *

(Code 1852, § 2197; Code 1915, § 4064; Code 1935, § 4545; 10 Del. C. 1953, § 9612; 55 Del. Laws, c. 20, § 23; 70 Del. Laws, c. 186, § 1.)

§ 9613. Reversal for lack of jurisdiction.

If, in any case under this subchapter, the judgment is reversed on certiorari for want of jurisdiction in the justice of the matter complained of in the plaintiff's statement of injury, the justice shall pay all the costs and the court shall by order compel such payment. (Code 1852, § 2196; Code 1915, § 4064; Code 1935, § 4545; 10 Del. C. 1953, § 9614.)

§ 9614. Right to appeal.

In all cases of trespass, upon the land of persons other than the owners, of animals, fowl or chattels, there shall be the same right of appeal to the Court of Common Pleas as in other civil actions. (Code 1915, § 4004A; 29 Del. Laws, c. 255; Code 1935, § 4543; 41 Del. Laws, c. 209; 10 Del. C. 1953, § 9615; 69 Del. Laws, c. 423, § 12.)

§ 9615. Certification of record to Superior Court.

(a) If, in an action of trespass under this subchapter for an injury to real property, the defendants says that the place, wherein the trespass is alleged, is the defendant's freehold, or the freehold of anyone under whom the defendant claims, and gives sufficient security for costs and damages, not exceeding $15,000 in amount, the justice shall forthwith, certify the record of the action to the Court of Common Pleas, which shall try the action, as other causes in that Court.

(b) The entry of the record in Court shall imply an appearance of the parties.

(c) The entries before the justice may be as follows:

On the ............ day of ..., 19 ..., the defendant says that the place

wherein the trespass is alleged in the defendant's freehold (or the freehold

of A. B., under whom the defendant claims) and prays that this cause may be

tried in the Court of Common Pleas; and thereupon C. D. becomes bound to the

plaintiff in the sum of ............... that the damages and costs which he

or she may recover in said Court shall be satisfied.

(d) The entry shall be signed by the surety, or it shall be void. (Code 1852, §§ 2198, 2199; Code 1915, § 4065; 34 Del. Laws, c. 224, § 2; Code 1935, § 4546; 10 Del. C. 1953, § 9616; 55 Del. Laws, c. 297, § 9; 57 Del. Laws, c. 192, § 9; 65 Del. Laws, c. 30, § 4; 67 Del. Laws, c. 426, § 7; 69 Del. Laws, c. 423, § 13; 69 Del. Laws, c. 425, § 7; 70 Del. Laws, c. 186, § 1.)