Ernest W. Hinderer, d. b. a., vs. John J. Jones, M. D, p. b. r.

Ernest W. Hinderer, d. b. a., vs. John J. Jones, M. D, p. b. r. Pleading—Motion for Judgment—Want of Replication. Where defendant pleaded non assumpsit, plaintiff would not be benefited by having the plea drawn out, and failure to reply thereto entitled defendant to judgment for want of replication. (May 15, 1918.) Judges Rice and Heisel sitting. Robert Adair for defendant below. Herbert H. Ward, Jr., for plaintiff below. Superior Court, New Castle County, May Term, 1918. Appeal from a Justice of the Peace, No. 190, September Term, 1917. Action of assumpsit by John J. Jones against Ernest W. Hinderer, commenced before a justice of the peace. Judgment for plaintiff, and defendant appeals. On defendant’s motion for judgment for want of replication to plea. Judgment granted. The facts and questions presented appear in the opinion of the court. • [MAJORITY — Heisel, J.,] Heisel, J., delivering the opinion of the court: The defendant below pleaded non assumpsit, payment, former recovery, set-off and statute of limitations. On March fourth the plaintiff below declined to reply to any of said pleas until each óf such pleas is drawn out. On May fourth counsel for defendant below withdrew all his pleas excepting the plea of non assumpsit and moved for judgment against the plaintiff below for his failure to file a replication to that plea. It is contended by counsel for defendant below that the plea of non assumpsit is the general issue, that it would be of no assistance- to the plaintiff below to have it drawn out, and that therefore the plaintiff having failed to file a replication to that plea, as required by the rule, the defendant below is entitled to judgment for want of such replication to that plea. We think judgment should be so entered. This question is treated fully in Woolley on Delaware Practice Sections 480 and 481. We quote one paragraph: “When the plaintiff is ruled to file his replications to the defendant's pleas, even though they are all memoranda, he cannot ignore them, for then judgment would be taken against him for want of a replication, but he should plead to those which for his information need not be drawn out, and order the others drawn out before he pleads.” Let judgment in favor of defendant below for want of a plea be entered.