1217 1 of 6
The 1831 Constitution established the Superior Court to replace and assume the duties of the Court of Common Pleas and the Supreme Court. Although the new court was originally given responsibility for civil cases, many other duties have been added in the ensuing years. One of the greatest changes occurred when Delaware’s judicial system was reorganized in 1951 and the Superior Court was given the powers formerly exercised by the Court of General Sessions and the Court of Oyer and Terminer, so that it had criminal jurisdiction as well.
Under the 1831 Constitution the Superior Court consisted of a chief justice and two associate justices. Associate justices were not permitted to sit in the county where they resided, and two justices were required for quorum.1 Under the 1897 Constitution a chief justice and four associate justices held Superior Court with no more than three justices sitting together.2 In 1951 the title of the presiding justice was changed from Chief Justice to President Justice. One justice is a quorum except when the court tries capital felony cases, in which case three justices are needed.3 Over the years a number of justices have been added to the court; so that there are now eight associate justices in addition to those specified in the Constitution.4 Justices are appointed for twelve year terms by the Governor with the consent of the Senate.5 In addition to hearing cases, justices set rules for the court.6
The Clerk of the Superior Court is the prothonotary, who, until 1989, was an elected official. In that year, a constitutional amendment was passed that made the prothonotary a State employee, appointed by and serving at the pleasure of the Superior Court7; there is one in each county. The prothonotary issues processes, takes recognizances of bail, and enters judgements8; he keeps the court’s dockets, indices, and other records; certifies the issuance of writs; takes affidavits; keeps jury records; enters satisfactions on judgements; and submits to the auditor of accounts and state treasurer reports of fines collected.9 After the 1951 judicial reorganization, the prothonotary assumed the duties formerly exercised by the Clerk of the Peace in the Court of General Sessions and Court of Oyer and Terminer.10
The 1831 and 1897 Constitutions established the court’s jurisdiction as “all causes of a civil nature, real, personal, and mixed, at common law,” which was the jurisdiction previously exercised by the Supreme Court and the Court of Common Pleas.11 The Superior Court has the power to examine and punish misdeeds of justices of the peace, sheriffs, coroners, clerks, and other officers; take recognizances and obligations to the State; and issue writs and other processes necessary for bringing actions to trial and for executing judgements and hearing mandamus proceedings.12 Cases are tried before juries, although the right to a jury may be waived by the litigants.13 When the Court of Common Pleas was reestablished in each county (1917 in New Castle County, 1931 in Kent County, and 1953 in Sussex County), it was given concurrent jurisdiction in cases involving lesser amounts of money.14
The court is required to acknowledge and approve bonds of the coroner, recorder of deeds, prothonotary, clerk of the peace, and register of wills. Recorder’s bonds are filed with the Superior Court and recorded in the judgement dockets;15 previously sheriff’s and coroners’ bonds also were filed with the court.16
The Superior Court hears appeals from courts and various other governmental agencies. The 1831 Constitution specified that the court hears appeals from the Register’s Court, while Orphans’ Court appeals were added by the 1897 Constitution.17 With the re-establishment of the Court of Common Pleas, defendants in common pleas cases were permitted to file motions to remove their cases from that court to Superior Court.18 Appeals from Family Court, justices of the peace, and the Wilmington Municipal Court are directed to Superior Court.19 The Superior Court also hears many non-court appeals. Any person whose driver’s license or title has been denied or revoked by the Division of Motor Vehicles can appeal to the Superior Court.20 Appeals of decisions by the State Tax Board (now the State Tax Appeal Board) and the State Tax Commissioner,21 voter registration officials,22 Board of Assessment,23 and Unemployment Compensation Commission24 can all be heard by the court. Superior Court also hears appeals from the State Board of Health regarding regulations or control of communicable diseases;25 from landowners whose lands the State forester has recommended be no longer classified as forest lands and placed back on the assessment lists;26 and from persons refused a license or persons protesting the granting of a license or the revocation of a license or certification.27-32
1217 2 of 6
The Superior Court is also involved with delinquent tax cases. Executions on judgements for taxes are to proceed as executions on other court judgements. In New Castle County, starting in 1915, proceedings for collection of delinquent taxes in Wilmington were to be held in the County’s Superior Court if the debt exceeded two hundred dollars.33 After 1927 the mayor and council of Wilmington were permitted to file with the court a praecipe that contained the name of the tax delinquent and a copy of bills due and the prothonotary was required to make record of this in the judgement records. A monition was then issued to the sheriff, who posted a copy on the property on which the assessment was in arrears. If the taxes were not paid, a writ of vendition exponas was issued by the prothonotary commanding the sheriff to sell the property. Upon the return of the sale by the sheriff, the court approved or set aside the sale.34 Similar laws dealing with delinquent taxpayers in Newark, Elsmere, Bellefonte, New Castle County, and the town of New Castle were also passed and are in current use.35 The New Castle County Department of Finance (formerly the Treasurer) is permitted to file an affidavit with the prothonotary against a delinquent taxpayer so that a writ of attachment is issued to the sheriff to attach the defendant’s property.38 The State Tax Board (now the State Tax Appeal Board) is also permitted to file with the prothonotary, in the county of the taxable, a certificate of assessment, which the prothonotary enters as a judgement in favor of the State.39
In order to collect delinquent taxes in Kent and Sussex counties, the treasurer or county director of finance files a certificate stating the facts of the case with the prothonotary. This information is recorded in the “Tax Sale Record.” Any sale by the treasurer or director of finance for payment of taxes requires that a return be made to the Superior Court, which approves or disapproves the sale.36 Whenever the Kent County Treasurer or Sussex County Department of Finance places a lien upon property for delinquent taxes, a certificate must be filed with the prothonotary listing the name of the taxable and taxes due. The prothonotary in turn files the certificate and enters an abstract in the “Tax Lien Record.” The lien remains in force until five years after the tax year, and then, if unpaid, a writ of levari facias is issued by the court at the direction of the treasurer or the Department of Finance.37
The Superior Court sits as a board of canvass to verify election results. In cases of fraud or mistakes, the court has the power to issue summary process to election officials and to correct election certificates. After the outcome of the election is determined, the court certifies the results, and a copy of the results is filed with the prothonotary.40
As part of its civil jurisdiction, the Superior Court had sole responsibility for granting divorces until 1975 when the Family Court took over this responsibility.41 The court could change the names of the wife and children, entering the new names on the divorce decree.42 In 1974 name change responsibilities moved to the Court of Common Pleas. From 1935 to 1943 the prothonotary was required to report divorce decrees to the Board of Health43 and after 1943 to the State Registrar of Vital Statistics.44 Another responsibility relating to families involved cases in which relatives neglected to provide for a family member. In such cases the court could order that support be paid.45
An important early responsibility of the court regarded ditches. Landowners applied to the Superior Court for an order permitting them to ditch and drain swamps. The justices appointed three freeholders, called commissioners, to view the land, lay out ditches sufficient to drain the swamp, estimate the cost and damages to adjoining lands, and prepare a report that was returned to the court with a plot or map of the area attached. After the report findings were confirmed by the court, the three commissioners would call a meeting to set up the ditch organization.46 [Minute books of several ditch companies are located in the Small Manuscripts Collection (RG 9200).] The prothonotary was required to keep a “Drainage Record” in which “every petition, motion, order, report, judgment or finding of the resident justice in every drainage transaction” was to be recorded.
1217 3 of 6
Among the responsibilities assumed by the Superior Court from the Court of General Sessions in 1951 was the authority to vacate or abandon public roads and bridges. Upon petition of five or more residents, the Superior Court conducts a hearing in which all interested parties, including the Department of Transportation, present evidence on the need for abandonment. If the Court rules in favor of the petition, it appoints five right-of-way jurors to view the road and assess damages. The usual procedure for abandoning roads is by administrative action of the Department of Transportation, but any order of the Department must be entered in the road books or records of the county is which the public road is located. Appeals of Department decisions are made to the Superior Court.48
In addition to appointing ditch commissioners and right of way jurors, the Superior Court was given other appointive powers. The court could appoint viewers to value property condemned for sewer, railroad, mill, and airport construction.49 The court also appointed seven members of the Delaware Commission for the Blind50 the New Castle County chief probation officer on recommendation of the Juvenile Court,51 five commissioners to investigate the child labor laws,52 five members of the Board of Managers of the New Castle County Farm for Women,53 the clerk of the New Castle County Court of Common Pleas,54 the Wilmington Board of Police Commissioners,55 and Jury Commissioners.56
The Superior Court had responsibilities relating to corporations and businesses. Beginning in 1875 applications for incorporation were filed with the Superior Court, and if approved by the court, a charter of incorporation was delivered to the Secretary of State to be filed. Before the corporation could transact business, it was required to file with the prothonotary a certificate of capital paid into the company. Petitions for dissolution or surrender of any power contained in the charter were made to Superior Court. In the case of dissolution, accounts were settled and approved by the court.57 The Secretary of State is now responsible for these duties.
Until 1967 corporations from outside the State were required to file certificates with the prothonotary of each county before transacting business in any county in the State. Each prothonotary was required to keep a book called the “Record of Agents of Foreign Corporations” so that processes issued against the corporation could be served on their agents in the State.58 In cases where stock certificates were lost or destroyed and the corporation refused to issue a new one, application was made to the Superior Court for an order requiring the corporation to show cause why it should not issue a new one.59 This duty is now a function of the Court of Chancery.60
A current responsibility relating to businesses involves those using trade names. Any such business that does not disclose the Christian and surname of every person in the firm is then required to file a certificate with the prothonotary of the county in which it does business. The prothonotary is then required to keep a record of this action in a “Partnership and Association Docket.”61
In addition to the responsibilities already mentioned, the Superior Court was also required by law to keep various types of records such as mechanics’ lien dockets and hospital lien dockets as well.62 After the 1951 reorganization, all records of the Courts of General Sessions and Oyer and Terminer were transferred to the care of Superior Court.63 Justices of the peace have been required since 1931 to deliver to the prothonotary all of their records that are ten years old or older; the prothonotary is to maintain them.64 Other early record keeping responsibilities include fining any governmental officer found using record books not meeting lawful standards.65 Since 1951 the court has had jurisdiction “over all crimes except where jurisdiction is exclusively vested in another court.”66 For example, jurisdiction over juvenile drug offenders who are eighteen or older was given to Superior Court in 1972.67
1217 4 of 6
1 1831 Constitution, Art. VI.
2 1897 Constitution, Art. IV.
3 48 D.L., ch. 109.
4 1897 Constitution, Art. IV; 53 D.L., ch. 5; 58 D.L., ch. 449; 65 D.L., ch. 51.
5 1897 Constitution, Art. IV.
6 10 Del Code, Section 561.
7 66 D.L., ch. 342; 67 D.L., ch. 96.
8 1831 Constitution, Art. VI; 1897 Constitution, Art. IV.
9 10 Del. Code, Sections 2303, 2304, 2307-2312, 2315, 2317-2321.
10 48 D.L., ch. 109.
11 1831 Constitution, Art. VI.
12 10 Del Code, Section 542, 544, 562, 564.
13 1897 Constitution; Art. IV.
14 29 D.L., ch. 250; 63 D.L., ch. 230.
15 9 Del. Code, Section 9114.
16 8 D.L., ch. 106.
17 1831 Constitution, Art. VI; 1897 Constitution, Art. IV.
18 33 D.L., ch. 224.
19 35 D.L., ch. 90, 222; 58 D.L., ch. 114.
20 36 D.L., ch. 10; 21 Del. Code, Section 2314.
21 36 D.L., ch. 8; 30 Del. Code, Section 331.
22 1897 Constitution, Art. V.
23 50 D.L., ch. 181; 9 Del. Code, Section 8207.
24 41 D.L., ch. 258; 19 Del. Code, Section 3323.
25 37 D.L., ch. 60.
26 37 D.L., ch. 72; Del Code, Section 3508.
1217 5 of 6
27 38 D.L., ch. 19.
28 38 D.L., ch. 62; 45 D.L., ch. 303.
29 40 D.L., ch. 122; 24 Del Code, Section 625.
30 40 D.L., ch. 120.
31 43 D.L., ch. 212.
32 43 D.L., ch. 286; 24 Del. Code, Section 625.
33 28 D.L., ch. 119.
34 35 D.L., ch. 93.
35 36 D.L., ch. 179; 41 D.L., ch. 142, 143; 46 D.L., ch. 133; 63 D.L., ch. 116; 9 Del. Code, Section 8722.
36 37 D.L., ch. 105; 9 Del. Code, Section 8757, 8771-8773.
37 38 D.L., ch. 78; 9 Del. Code, Section 8706.
38 40 D.L., ch. 135; 9 Del. Code, Section 8742.
39 36 D.L., ch. 8; 30 Del. Code, Section 361.
40 1897 Constitution, Art. V.; 44 D.L., ch. 119; 15 Del. Code, Section 5701.
41 8 D.L., ch. 144; 60 D.L., ch. 297.
42 21 D.L., ch. 290.
43 40 D.L., ch. 210.
44 44 D.L., ch. 69.
45 26 D.L., ch. 137.
46 8 D.L., ch. 145, 173; 9 D.L., ch. 429, 72, 248.
47 28 D.L., ch. 105.
48 1852 Rev. Code, Ch. 61; 17 D.L., ch. 166; 22 D.L., ch. 166; 35 D.L., ch. 69; 37 D.L., ch. 134.
49 65 D.L., ch. 209.
50 25 D.L., ch. 73.
51 26 D.L., ch. 262.
52 26 D.L., ch. 284.
1217 6 of 6
53 33 D.L., ch. 222.
54 35 D.L., ch. 220.
55 19 D.L., ch. 731.
56 24 D.L., ch. 244.
57 15 D.L., ch. 119.
58 20 D.L., ch. 513; 56 D.L., ch. 50.
59 37 D.L., ch. 129.
60 8 Del. Code, Section 168.
61 25 D.L., ch. 146; 10 Del. Code, Section 2309.
62 12 D.L., ch. 117; 13 D.L., ch. 448; 14 D.L., ch. 95-96; 10 Del. Code, Section 2308; 37 D.L., ch. 179; 25 Del. Code, Section 4305.
63 48 D.L., ch. 109.
64 37 D.L., ch. 263.
65 8 D.L., ch. 145.
66 11 Del. Code, Section 2702.
67 58 D.L., ch. 478.
rlg/March 21, 1988; April 28, 1988; January 4, 1989; August 22, 1989; August 27, 1991 (eds. rev)