Hyperlawhypertext legal databasebeta Mayor of Wilmington v. Addicks 8 Del. Ch. 147

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Mayor of Wilmington v. Addicks

8 Del. Ch. 147 Court Del. Ch. English

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p. 147
The Mayor and Council of Wilmington, a Municipal Corporation of the State of Delaware, at the instance of Joseph L. Carpenter, Jr., J. Newlin Gawthrop and Samuel Chambers, the Board of Directors of the Street and Sewer Department for the City of Wilmington, vs. John Edward Addicks, John G. Baker, Fredrick P. Addicks, Simon B. Conde and Samuel Austin.
New Castle,
Sept. T. 1697.

Headnote

Where prior to the adoption ot the Constitution of 1897 a cause in equity had been referred to a Chancellor ad litem, it was held that hi^ jurisdiction was terminated by the provisions of Sec. 7 of the Schedule of the new Constitution,and after the appointment and qualification of a Chancellor thereunder, the cause was reinstated upon the regular calender of the Court of Chancery.
Motion to re-instate a cause pending before a Chancellor ad htem upon the regular docket of the Court. The bill in this cause was filed April 2, 1891, and a preliminary injunction issued against the defendants to restrain them from opening or excavating the streets of the City of Wilmington for the purpose of laying gas pipes.
In May, 1891, a rule to show cause why the bill should not be dismissed was discharged and the injunction continued. In June, 1893, a demurrer was filed and argument thereon was heard by Henry R. Johnson, Chancellor ad litem, who had been appointed upon the certificate of the then Chancellor Wolcott. The demurrer was over-ruled, and the defendants permitted to plead or answer. 7 Del. Ch. 56 .
On June 30, 1894, a plea and answer in support thereof were filed and, thereafter, replications and rejoinders were entered and a commission issued to take testimony, which was
p. 148
returned in September, 1894. Argument in the cause was heard before the Chancellor ad litem, who had rendered no decision. On August 5th, 1897, the case being still pending before the Chancellor ad litem, a rule was issued to show cause why the cause should not be put upon the regular docket. The ground of this application was that a constitutional ■ convention had been held and a new constitution adopted, which went into effect June 10, 1897. In Section 9 of the Schedule of the Constitution it was provided as follows:
“All the courts of justice now existing shall continue with their present jurisdiction, and the Chancellor and judges shall continue in office until the tenth day of June in the year one thousand eight hundred and ninety-seven; upon which day the said courts shall be abolished, and the offices of the said Chancellor and judges shall expire.” And further, that, “All suits, proceedings and matters which, on the said tenth day of June in the year one thousand eight hundred and ninety-seven, shall be depending in the Court of Chancery, or in the Orphan’s Court, and all records, books and papers of said Courts respectively, shall be transferred to the Court of Chancery or Orphans’ Court respectively established by this amended Constitution; and the suits, proceedings and matters, shall be proceeded in to final decree, order or other determination.”
On June 10, 1897, the present Chancellor, who had been previously Chancellor under the Constitution of 1831—since November 25, 1895, was appointed under the new Constitution, and thereafter the defendants filed their petition praying for re-instatement of the cause upon the regular docket, upon the ground that the office and duties of the said Chancellor ad htem had been abolished by the Constitution of the State of Delaware recently adopted, and that there was no legal or equitable reason why the present Chancellor should not take cognizance of the case. On this petition a rule was granted returnable September 13, 1897, at which time it was argued by counsel for the respective parties, service of the rule having been duly made upon the complainant and the
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then members of the Street and Sewer Department and the Chancellor ad litem.
H. H. Ward, Austin Harrington and C. Berkeley Taylor, for rule.
Lewis C. Vandegrift, contra.

after hearing the argument of counsej. for the respective parties, was of opinion that the jurisdiction and functions of the Chancellor ad litem, as such, were terminated by the provisions of section 9 of the schedule of the new Constitution, on the tenth day of June, 1897. Being a judicial officer appointed under the - Constitution and laws made in pursuance thereof, his tenure was terminated at the date prescribed for the expiration of the offices of the Chancellor and Judges.

He also considered that the cause in question was included in the terms “all suits, proceedings and matters which” on the said tenth day of June were “depending in the Court of Chancery,” and, under the further provisions of said section 9 of the schedule it was “transferred to the Court of Chancery * * * * established by this amended Constitution,” and is now pending in this Court.

There being no legal exception to prevent the present Chancellor from sitting in said cause, it should properly be placed upon the regular docket of the Court.

Accordingly, on the eleventh day of October, 1897, it was ordered that the case be put upon the regular calendar to be there proceeded with according to the usual course of proceedings in the Court.

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