Philadelphia, Baltimore & Washington Railroad v. Gatta

Citations

• 27 Del. 38
• 4 Boyce 38
• 85 A. 721
• 1913 Del. LEXIS 9

Syllabus

<p>1. Appeal and Error—Motion for New Trial—Discretionary Ruling.</p> <p>A motion for a new trial being addressed to the court’s discretion, a writ of error will not lie to review the court’s decision upon it, in the absence of an abuse of discretion.</p> <p>2. Appeal and Error—Exception—Necessity—Denial of New Trial.</p> <p>In the absence of an exception to the denial of a new trial, such denial could not be reviewed to determine whether it was an abuse of discretion.</p> <p>3. Limitation of Actions—Operation of Statute—Amended Complaint.</p> <p>Where an action for wrongful death was instituted against a railroad company within the one-year limitation period prescribed by 20 Del. Laws, c. 594, by filing a praecipe, and the declaration filed alleged that deceased was an employee of the defendant company, the cause of action stated by an amended declaration, filed after the expiration of the year, alleging that he was an employee of the Pullman Company, and charging the defendant company with the duties owed to a stranger, was not barred by such statute; an action at law being commenced in this state, so as to stop the running of limitations, by prascipe, and not by the plaintiff’s declaration, as in many states.</p> <p>4. Pleading—Declaration—Counts.</p> <p>A declaration may contain any number of counts, providing it does not violate the rule against vexatious pleading, and each count presents a separate and distinct cause of action, which is appropriate to the form of action pleaded.</p> <p>5. Pleading—Answer—Sufficiency.</p> <p>The defendant must make separate answer to each count, where the declaration contains several proper counts.</p> <p>6. Pleading—Amendment.</p> <p>Under Const. 1897, art. 4, § 24, and JRev. Code 1852, c. 112, § 11, authorizing the Superior Court to allow amendments, the court in its discretion may allow an amendment at any time before judgment, whether limitations would have run against the cause stated in the amendment, if made the subject