27 Del. 542 | Del. Super. Ct. | 1914
delivering the opinion of the court:
Section 7, Chapter 221, Page 622, Volume 24, Laws of Delaware, provides that “the proceedings for divorce, or to have a marriage annulled, shall be by petition filed with the prothonotary of the Superior Court in the county of the petitioner’s residence, stating the true cause of the complaint and verified by the affidavit of the petitioner that the facts stated are true and that the complaint is not made out of levity or by collusion.” Every essential fact necessary to be stated in the petition for the annulment of the marriage between the parties to this action, duly verified, as required by the statute, is fully stated, and if established by proofs, cause would be shown for the annulment of the marriage under said Act of Assembly. But the act has been amended (Sections 1 and 3, Chapter 213, page 496, Volume 25, Laws of Delaware), making the matter complained of a cause for divorce from the bonds of matrimony and not a cause for the annulment of the marriage.
The petition, under the statute as amended, is suitable and sufficient for a cause in divorce, but the prayer in the petition is for annulment of the marriage and not for divorce. In other words, the petitioner has mistaken her form of action.
It is a rule of this court never to allow amendments to affidavits.
In Sindowski v. Sindowski, 2 Boyce, 547, 84 Atl. 805, the court said: “Leave will not be granted to amend petitions in divorce cases.” The verification required by the statute goes to the facts stated in the petition and not to the prayer thereof and this fact distinguishes this case from the Sindowski case to which we have referred.
Section 15, Chapter 112, page 850, Revised Code, provides that “Whenever a plaintiff in an action shall have mistaken the form of action suited to his claim, the court, on motion, may permit
We think the motion to amend should be granted. Eby v. Concord Heights Co., ante 90 Atl. 40.
The amendment is allowed.