Draine v. Draine — 35 Del. 59

Majority

p. 59

William E. Draine v. Nora D. Draine.

(July 6, 1931.)

Harrington and Richards, J. J., sitting.

James M. Tunnell for plaintiff.

Andrew J. Lynch for defendant.

Superior Court for Sussex County,

No. 20,

June Term, 1931.

delivering the opinion of the Court:

This case is controlled by Naudain v. Naudain, 1 Boyce 248 , 75 A. 609 . It differs from Ross v. Ross, 4 W. W. Harr. (34 Del.) 7, 130 A. 677 , in that there is nothing to indicate that the facts upon which the charge is based were personally known to the petitioner, while in that case the

p. 60

charge was extreme cruelty by the respondent toward the petitioner.

From certain statements of the Court in Ross v. Ross, it is contended that in an affidavit based on information and belief the sources of the information upon which it is based should be set out; but such statements were . not necessary to the decision of that case and appear to be inconsistent with the decision of the Court in the earlier case of Naudain v. Naudain, 1 Boyce 248 , 75 A. 609 , supra.

Perhaps we might also add that the Naudain Case was not called to the attention of the Court in the Ross Case.

For the reasons above given, the defendant’s motion is refused.

Cases cited

Naudain v. Naudain 1 Boyce 248 Del. Super. Ct. 1910-03-15 p. 59, p. 60
Ross v. Ross 34 Del.) 7 Del. Super. Ct. 1925-10-05 p. 59