No. 125, 2000.Supreme Court of Delaware.
Decided: June 2, 2000.
Superior Court of the State of Delaware in and for New Castle County; C.A. No. 99C-09-262.
AFFIRMED IN PART AND REMANDED.
Unpublished Opinion is below.
W. BRYCE BENNETT and DEBORAH A. BENNETT, H/W 0.1368 ACRES OF LAND (5,959.01 square feet), more or less, as a Permanent Taking; 1.1368 ACRES OF LAND (52,019 square feet), more less as a Permanent Easement, situate in New Castle County, State of Delaware, Defendants Below, Appellants, v. STATE OF DELAWARE, upon the Relation of the Secretary of the Department of Transportation, Plaintiff Below, Appellee. No. 125, 2000. In the Supreme Court of the State of Delaware. Submitted: May 23, 2000. Decided: June 2, 2000.
Superior Court of the State of Delaware in and for New Castle County; C.A. No. 99C-09-262.
Before WALSH, HOLLAND, and HARTNETT, Justices.
ORDER
This 2nd day of June 2000, upon consideration of the briefs of the parties and the bench ruling of the Superior Court on February 25, 2000, it appears to the Court that:
1. This is an interlocutory appeal from two rulings of the Superior Court.
2. The first ruling was the denial by the Superior Court of appellants’ motion to vacate an Order of Possession entered in this land condemnation action on October 22, 1999.
3. The appellants have not shown that the Superior Court abused its discretion in denying the motion to vacate the Order of Possession. The Order of Possession was not void, it was not the result of a mistake, and the Bennetts had sufficient notice of the hearing on the motion for an Order of Possession, but chose not to appear and oppose it. Nor has there been any showing of any extraordinary circumstances. Superior Court Rule 60(b).
4. It is clear from the Superior Court’s decision that the motion to deny without prejudice Bennetts’ motion to dismiss the complaint is an interlocutory order. It is also clear that none of the criteria set forth in Superior Court Rule 42 are present and there is no exceptional circumstance that would justify a ruling by us on that issue at this stage of the proceedings.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED IN PART and REMANDED. Jurisdiction is not retained.
BY THE COURT: s/Maurice A. Hartnett, III Justice