Etta C. Whitaker vs. William P. Whitaker

Etta C. Whitaker vs. William P. Whitaker. Divorce — Defendant Held Not Entitled to Continuance for Purpose of Piling Answer. In a wife’s action for divorce, an application by defendant for a continuance to file an answer to a charge of adultery, based on a statement alleged to have been made by defendant’s brother-in-law to .defendant that such a change would not be pressed at the trial, held not to show cause entitling defendant to a continuance, where it appeared that the cause was set down for hearing on a day certain during the early part of the term and that the application had not been made until the day set for hearing. (December 6, 1920.) Boyce and Rice, J. J., sitting. Benjamin T. Biggs and Philip L. Garrett for plaintiff. J. Rankin Davis and James H. Hughes, Jr., for defendant. Superior Court for New Castle County, November Term, 1920. Divorce, No. 69, November Term, 1920. Action for divorce by Etta C. Whitaker against William P. Whitaker. Motion for continuance denied. Cause heard and decree nisi granted on the ground of extreme cruelty. The causes alleged in the petition for divorce were extreme cruelty and adultery. On the day set down for the hearing in the cause, counsel for defendant moved for a continuance on the ground of the -absence of a material witness. Counsel for plaintiff opposed the application and insisted on the filing of the usual affidavit, required by the rules of Court. Later, counsel for the defendant withdrew the application, but asked leave to file an answer to the cffarge of adultery and that for this purpose the case be continued. Bancroft v. Bancroft, 4 Boyce, 9, 85 Atl. 561. This request was based upon a statement alleged to have been made by the brother-in-law of the plaintiff to the defendant to the effect that the charge of adultery would not be pressed at the trial. Counsel for plaintiff opposed this application, and insisted that neither the plaintiff nor her counsel are bound by the alleged statement. It was pointed out that the cause was set down for hearing on a day certain during the early part of the term, and it w;as urged that because the application had not been made until the day set for the hearing it comes too late. [MAJORITY — Per Curiam:] Per Curiam: The defendant has not brought himself within the rules and practice entitling him to a continuance. The Court will proceed with the hearing. If a decree nisi shall be granted, the defendant may, upon cause shown, within one year from the entry thereof have proceedings for review. Decree nisi granted on the ground of extreme cruelty.