Esposito v. Schille

• Decision Date: 21 December 1944
• Citation: 40 A.2d 745,131 Conn. 449
• Court: Connecticut Supreme Court
• Parties: ESPOSITO v. SCHILLE et al.

131 Conn. 449

40 A.2d 745

ESPOSITO v. SCHILLE et al.

Supreme Court of Errors of Connecticut.

Dec. 21, 1944.

Appeal from Court of Common Pleas, New Haven County; Borden, Judge.

Action of replevin by Antonio Esposito against Elizabeth Schille and others. Motions for a stay of proceedings and for continuance were denied and trial of the issues to the court resulted in judgment for plaintiff, from which defendants appeal.

Error, judgment set aside, and case remanded with directions.

Charles Albom and David E. FitzGerald, Jr., both of New Haven, for appellants.

Louis Feinmark and John A. Mele, both of New Haven, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

The defendant Raymond Esposito, whom we shall hereafter refer to as the defendant, was in the armed forces of the United States when this action of replevin was instituted. He was serving overseas when the trial court denied motions for a stay and a continuance, proceeded with the trial and rendered judgment against the defendants. The claim made in the appeal taken in his behalf is that he has been deprived of rights given him by the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix § 501 et seq.

The Congress declared the purpose of the act to be to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the nation, and said that ‘to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified.’ 54 Stat. 1179, § 100, 50 U.S.C.Appendix, § 510, 50 U.S.C.A.Appendix § 510. A later section of this act deals with conditions under which a stay of proceedings will be allowed and provides, in so far as it affects the facts of the instant case, that ‘At any stage thereof any action or proceeding in any court in which a person in military service is involved * * * shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of * * * the defendant to conduct his defense is not materially affected by reason of his military service.’ 54 Stat. 1181, § 201, 50 U.S.C.Appendix, § 521, 50 U.S.C.A.Appendix § 521. The Supreme Court of the United States has decided: (1) The act cannot be construed to require continuance on mere showing that the defendant is in the military service; (2) judicial discretion conferred on the trial court instead of rigid and undiscriminating suspension of civil proceedings is the very heart of the policy of the act; (3) this discretion includes a discretion as to whom the court may ask to come forward with facts needful to a fair judgment; (4) the act does not expressly require findings; it requires only that the court be of opinion that ability to defend is not materially affected by military service. Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587.

At this point we digress to consider whether subdivision (4) above means that if the court is of that opinion, it is conclusive, regardless of the reasons for it. This is not the real meaning, for the court immediately goes on to say (319 U.S. at page 572, 63 S.Ct. at page 1229, 87 L.Ed. 1587): ‘The final question is whether the evidence sufficiently supports the opinion or whether the order constitutes an abuse of discretion.’

The opinion closes with this final statement (319 U.S. at page 575, 63 S.Ct. at page 1231, 87 L.Ed. 1587): ‘The Soldiers' and Sailors' Civil Relief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation. The discretion that is vested in trial courts to that end is not to be withheld on nice calculations as to whether prejudice may result from absence, or absence result from the service. Absence when one's rights or liabilities are being adjudged is usually prima facie prejudicial. But in some few cases absence may be a policy, instead of the result of military service, and discretion is vested in the courts to see that the immunities of the Act are not put to such unworthy use.’

We proceed to apply these principles of law to the circumstances of the present case. The facts, in so far as they appear in the record, are these: The complaint alleges that the plaintiff is the owner and entitled to the possession of specified household articles of the value of $1,000 which the defendants took from his possession and are wrongfully detaining. The writ commands the sheriff to cause the goods to be replevied forthwith. The officer made return that he had replevied certain articles but could not find the others. No appearance was entered for the defendant and, after the return day, upon motion by the plaintiff representing that the defendant was serving in the armed forces of the United States and that storage charges were running against the goods, an attorney was appointed to represent him. The attorney filed various pleadings which finally resulted in a general denial and a closing of the pleadings onOctober 8, 1943. On January 18, 1944, he filed a motion for a stay of the proceedings, representing that the defendant had a good defense and that his presence was necessary to establish it, that he could not be located and was probably overseas, that the plaintiff was pressing the case for trial, and that justice required a stay of proceedings. On February 1, he represented in writing that he had received a letter from the defendant showing he was overseas, in England, and was interested in contesting the case. On February 4, the court denied the motion without assigning any reason therefor. On February 15, the attorney filed a motion for continuance in which he recited the history...