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COURT OF COMMON PLEAS

The Court of Common Pleas is the name common to two different courts existing at different times in Delaware history. The first Courts functioned from the early colonial period until 1831 and heard only civil cases. (See RG 2815, 3815, and 4815 for the agency history and series descriptions for this earlier court.)

The second Court of Common Pleas, created to relieve the Superior Court and the Court of General Sessions of their heavy workloads, began in New Castle County in 1917, in Kent County in 1931, and in Sussex County in 1953. It was given original jurisdiction in civil and criminal cases.1

In 1973 an effort “to provide speedier, more efficient, and better administration of justice” resulted in the three county Courts of Common Pleas being combined into the single Court of Common Pleas for the State of Delaware functioning today. While the Court is administered from a central office, the court records themselves are still generated at the county level. When first established, this Statewide court consisted of four judges: two from New Castle County, one from Kent County, and one from Sussex County.2 In 1976 an additional judge for New Castle County was added, and the judge with service seniority was designated chief judge to act as administrative head of the court. Court is held throughout the year in Wilmington, Dover, and Georgetown. Judges continue to be appointed by the Governor, with the consent of the Senate, for twelve-year terms. One judge constitutes a quorum.3

The clerks of the court are appointed by the judges of the Court of Common Pleas and assigned responsibility for the care of court records for both criminal and civil cases. The clerks, who held office during the pleasure of the court, received all court fees, fines, and costs; administer oaths; enter judgements; and issue commitments, executions, processes, and warrants. The fees, fines, and court costs collected, which were in the past paid to the county treasurer, are paid to the State Treasurer. All books, records, and papers previously kept by the clerks of the county courts have been transferred to the Statewide court.4 Court expenses, including salaries of judges and other officials, previously paid by each county’s Levy Court, are now paid by the Statewide court. In 1976 the chief judge was authorized to appoint a chief clerk of the entire court to be responsible for the administration of all non-judicial activity.5 Other court officials have included deputy clerk, court reporter, “and such other officers and employees in each county as is deemed necessary.”6

When the Court of Common Pleas was established in New Castle County in 1917, it was given concurrent jurisdiction with the Superior Court in all civil actions where the amount is dispute was less than $500.7 By the time the Courts of Common Pleas were established in Kent and Sussex Counties in 1931 and 1953, the amount had been raised to $1,000, and it has been raised several times since.8 As of 1982, the Statewide court has civil jurisdiction in cases involving $15,000 or less.9

The old county courts also received cases transferred or assigned to them by the Superior Court and the Court of General Sessions (abolished in 1951). Parties involved with these cases agreed to waive their right to a jury trial unless one party gave security to pay for the expense of a jury. Even then, juries were limited to five or fewer members chosen by the judge.10 In 1962 trial by jury was instituted for all civil and criminal cases.11 However, since the 1973 reorganization, civil cases are again tried without a jury; when a defendant in such a case desires a jury trial, the case is transferred to Superior Court. Defendants in criminal cases retain the right to trial by petit jury.12

Civil actions are initiated by the plaintiff filing a statement of claim. The court then issues a summons requiring the defendant to file and answer to the complaint. Once the answer is filed, the case is considered to be at issue unless the defendant brings up new arguments, in which case the plaintiff has to reply to the new issues. The judge then arranges for a trial.13

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COURT OF COMMON PLEAS

All civil judgments are entered in judgement dockets that are required to be properly indexed. Judgments are not considered liens on real estate until a transcript has been filed in the prothonotary’s office. Writs of execution can be issued in Common Pleas as they are in Superior Court.14 In the early New Castle County Court of Common Pleas, writs, rules, and processes of the court were served by sheriffs, deputies, and Wilmington Police officers. In today’s Statewide court, these papers may also be served by constables and State police. Appeals of civil judgments are sent to Superior Court.15

With the 1973 reorganization of the court system, the Statewide court retained original jurisdiction over all misdemeanors except where the Superior, family, Justice of the Peace, or the Wilmington Municipal Courts have concurrent or original jurisdiction.16 For descriptions of the court’s authority in criminal cases, see subgroup descriptions for each county.

Record Group: 1220 .0100

Court of Common Pleas - New Castle County

When the Court of Common Pleas was established in New Castle County in 1917, it was at first presided over by a judge of the Superior Court who was “assigned from time to time by the Superior Court, to hold said court.”17 In 1935, a Common Pleas judge was appointed by the Governor for a twelve-year term. If the judge at any time was unable to serve, the Chief Judge appointed a Superior Court judge, or the Governor appointed a substitute to hear cases.18 In 1968 another judge, also appointed by the Governor to serve a twelve-year term, was added to the court. This judge was not to be of the same political party as the other judge.19 New Castle County retained these two judgeships in the newly consolidated court of 1973 and gained a third judgeship in 1976.20

The clerk of the court was first appointed by the Superior Court and held office during the pleasure of that court. Although the clerk was responsible for the care of the records of the Court of Common Pleas, the duties of the office were described only as being similar to those performed by the prothonotary. The Clerk of the Peace acted as court clerk when criminal cases came before the court.21 Since 1973 the clerks of the Statewide court have been appointed by the judges of the court and are responsible for both civil and criminal cases.22

For criminal cases the court had the same authority as the Court of General Sessions to receive quality pleas “from persons charged with crimes and misdemeanors” and “to impose sentence or parole.” The court was also given “concurrent jurisdiction in actions of forcible entry, detainer and holding over of tenants, and in cases where children or grandchildren neglect or refuse to support their parents or grandparents and vice versa.”23

In 1925 the court was authorized to place persons convicted of non-capital crimes on probation. If the person successfully completed the probation, the guilty plea or verdict was struck from the record.24

In 1935 the court’s criminal jurisdiction was limited to misdemeanors committed in New Castle County but outside of Wilmington. It was also stated that the court had the same powers in criminal matters as the justice of the peace. Persons accused of crimes before the justice of the peace could elect to be tried in Common Pleas.25

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Record Group: 1220 .0200

Court of Common Pleas - Kent County

When the Court of Common Pleas was established in Kent County in 1931, it was presided over by one judge appointed by the Governor for a four-year term.26 In 1933 this judge was given additional jurisdiction over the newly created Juvenile Court of Kent and Sussex Counties, and the clerk of the Court of Common Pleas was given responsibility for the records of the Juvenile Court when it met in Kent County.27 In 1953 the term of office of the judge was extended to twelve years. If at any time the judge was unable to serve, the Chief Justice would assign a Superior Court judge as substitute.28

For criminal cases the Court was given the same authority as the justice of the peace, and persons accused of crimes could elect to be tried in Common Pleas rather than before the justice of the peace.29 In 1937 the court was given the added responsibility of concurrent jurisdiction with the Court of General Session in cases relating to desertion and nonsupport and, in 1962, its responsibility was extended to cover all misdemeanors except those for which the justice of the peace or Juvenile court had concurrent or original jurisdiction.30

Record Group: 1220 .0300

Court of Common Pleas - Sussex County

When the Court of Common Pleas of Sussex County was established in 1953, it was presided over by one judge appointed by the Governor for a twelve-year term. If the judge was unable to serve for any reason, the president judge of Superior Court was authorized to assign a Superior Court judge as substitute.31

For criminal cases the court was given the same authority as the Superior Court to receive guilty pleas and to impose sentence or probation. For cases involving forcible entry, detainer, and holding over tenants, the court was given the same jurisdiction and power as justices of the peace. It had original jurisdiction to hear, try, and determine all misdemeanors, except when other courts had previous jurisdiction. In 1962 these other courts were named as the Justice of the Peace and Juvenile Courts. Defendants could elect to be tried in Common Pleas rather than before a justice of the peace.32

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1 Work Projects Administrator, Inventory of the County Archives of Delaware: No. 1, New Castle County (Dover, DE: Public Archives Commission, 1941), p. 157. 29 D.L., ch. 250. 37 D.L., ch. 262. 49 D.L., ch. 291.

2 59 D.L., ch. 133.

3 Ibid. 60 D.L., Ch. 559.

4 59 D.L., Ch. 133.

5 60 D.L., Ch. 629.

6 59 D.L., Ch. 133. 29 D.L., Ch. 250. 40 D.L., Ch. 236. 56 D.L., Ch. 240.

7 29 D.L., Ch. 250.

8 30 D.L., Ch. 219. 56 D.L., Ch. 240. 59 D.L., Ch. 133. 60 D.L., Ch. 197.

9 63 D.L., Ch. 230.

10 29 D.L., Ch. 250.

11 37 D.L., Ch. 262. 53 D.L., Ch. 288. 59 D.L., Ch. 133.

12 59 D.L., Ch. 133.

13 29 D.L., Ch. 250.

14 Ibid.

15 Ibid. 43 D.L., Ch. 267. 59 D.L., Ch. 133.

16 59 D.L., Ch. 133.

17 29 D.L., Ch. 250.

18 40 D.L., Ch. 236. 44 D.L., Ch. 133.

19 56 D.L., Ch. 240.

20 60 D.L., Ch. 559.

21 29 D.L., Ch. 250.

22 59 D.L., Ch. 133.

23 29 D.L., Ch. 250.

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24 34 D.L., Ch. 240.

25 40 D.L., Ch. 236.

26 37 D.L., Ch. 262.

27 38 D.L., Ch. 197.

28 37 D.L., Ch. Ch. 262. 49 37 D.L., Ch. 289.

29 37 D.L., Ch. 262.

30 41 D.L., Ch. 240. 53 D.L., Ch. 289.

31 49 D.L., Ch. 291.

32 Ibid. 53 D.L., Ch. 291.

???/last date edited, December 30, 1988;

rewritten by editor

February 8, 1990