34 Del. Ch. 509 | New York Court of Chancery | 1954
This is the decision on defendant’s (Resources) objection to plaintiff’s application to amend its complaint.
Plaintiff’s original complaint sought to rescind an alleged fraudulent conveyance by the defendant Resources. Plaintiff’s then status was that of an incipient judgment creditor on the basis of an action in the Delaware U.S. District Court. 114 F.Supp. 843. An unsuccessful attack was made on the original process in this action. See E. M. Fleischmann Lumber Corp. v. Resources Corporation International, 33 Del.Ch. 587, 98 A.2d 506.
Plaintiff says that the contentions of defendant should not be considered in connection with an application to amend.
The rules of this court require me to follow a liberal policy concerning amendments. In considering objections to the filing thereof, the court, absent an unusual, showing, -looks only to objections involving questions of form, time, or harassment. I recognize that some courts pass on substantial questions in connection with the decision on the application to amend. However, as a general practice, I prefer to allow the filing of amendments without prejudice. The opposing party is then free to raise any question by appropriate . motion or other pleading. See Copeland Motor Co. v. General Motors Corp., (5 Cir.) 199 F.2d 566; Naamloze Vennootschap Suikerfabriek “Wono-Aseh” v. Chase National Bank, (D.C.) 12 F.R.D. 261. In this way the court will have before it an orderly set of pleadings.
The ultimate result may often be the same no matter which practice is adopted, but for the reason stated I prefer the course outlined above ' • •
Plaintiff will therefore be granted leave to file the proposed amendment. But leave is granted without prejudice to Resources’ right to attack its sufficiency including the question as to whether or not the amendment will relate back under Chancery Court Rule 15 (c), Del.C.Ann.
It appears that the Superior Court did , consider matter's of substance in connection with an application for" leave to amend'in Rogers
Since defendant Resources may want to reconsider its motions to dismiss and for summary judgment in the light of my decision, I have not ruled on them.
Order on notice.