Mac Farlane v. Garrett , 19 Del. 36 ( 1900 )

Counsel for defendant asked leave to file special demurrers to the plaintiff’s declaration ;. the defendant having first pleaded to the action and obtained leave to amend and withdraw his pleas.

Chandler, for plaintiff, objected; contending that the defendant could not be allowed to demur specially after pleas to the action, joinder of issue thereon, leave to amend and withdrawal of ■ pleas.

Robinson and Ponder vs. Holland, 2 Harr., 445; Stephens on Pleading, 151; Chitty on Pleading, 672.

Spruance, J.:

The provision of Section 2I¡. of Article I¡, of the Constitution of 1897 relating to amendments is as follows

“ In civil causes, when pending, the Superior Court shall have power, before judgment, of directing, upon such terms as it shall deem reasonable, amendments impleadings and legal proceedings, so that by error in any of them, the determination of causes according to their real merits, shall not be hindered.”

A similar provision is found in the Constitution of 1792, Art. 6, Sec. 7, and in the Constitution of 1831, Art. 6, Sec. 16.

A very restricted interpretation of this power was given by the Court as early as 1838.

In that year, in Waples vs. McGee et. al., 2 Harr., leave to amend for the purpose of pleading the act of limitation, or any plea not going to the merits was refused, and in Robinson, et al., vs. Holland, 2 Harr., 445, the Court refused, after issue joined, to permit the defendant to withdraw his pleadings for the purpose of demurring specially.

By Chapter 112 of the Revised Code of1852, relating to “Defects in pleading and the amendment thereof,” which is the same as Chapter 112 of the Revised Code of1893, a distinct advance was made toward “the determination of causes according to their real merits.”

The following is Section 11 of said Chapter: “In any civil cause pending before the Superior Court, the said Court shall have power, at any time before judgment, to allow amendments either in form or substance, of any process, pleading or proceeding, in such action on such terms as shall be just and reasonable.” The purpose of the statute appears to have been to enlarge the power of amendment.

While this section is not expressly mandatory as to the allowance of amendments either as to form or substance, it clearly indicates that the exercise of the power is not to be limited to matters of substance merely, but is to be extended as well to matters of form in any proper case.

If this section had been in force at the time, it is highly improbable that the Court would have refused the amendments asked in the two cases above cited.

Since the Code of 1852 the Court has been very liberal in the allowance of amendments, and the power to impose terms—usually the payment of costs—has generally been found sufficient to check frivolous applications.

After issue joined it is usual to allow the pleas to be withdrawn for the purpose of demurring, and we know of no good reason, or of any practice in recent years, which would warrant us in restricting the privilege to a general demurrer.

The proposed special demurrer appears to be proper and necessary to secure accurate and definite allegations as to the nature and character of the plaintiff’s cause of action, without which the defendant would be embarrassed in his pleading and in his preparation for trial.

A majority of the Court are of the opinion that the application of the defendant for leave to withdraw his pleas for the purpose of demurring specially should be allowed, and it is so ordered.