Luckes v. Luckes, 36580

• Decision Date: 17 June 1955
• Docket Number: No. 36580,36580
• Citation: 54 A.L.R.2d 384,245 Minn. 141,71 N.W.2d 850
• Parties: , 54 A.L.R.2d 384 Anna P. LUCKES, Respondent, v. Clinton E. LUCKES, Appellant.
• Court: Minnesota Supreme Court

Page 850

71 N.W.2d 850

245 Minn. 141, 54 A.L.R.2d 384

Anna P. LUCKES, Respondent, v. Clinton E. LUCKES, Appellant.

No. 36580.

Supreme Court of Minnesota.

June 17, 1955.

Syllabus by the Court.

1. Absent prejudice to the soldier or sailor, there is no justification or requirement under the Soldiers' and Sailors' Civil Relief Act for a stay of legal proceedings.

2. Whether prejudice exists to a material degree which justifies a granting of a motion for a stay of proceedings under the act is to be determined by the court as a matter of judicial discretion.

3. The serviceman who applies to the court for a stay of legal proceedings under the act must assert bona fide rights and exercise good faith.

4. The discretion vested in the court by the act includes a discretion to determine, according to the peculiar facts of each case, which party, upon any issue or phase of the case, ought to bear the burden of proof of coming forward with the facts needful to a fair judgment.

5. In ascertaining whether defendant's military service would materially affect his ability to conduct his defense, the court could consider not only the supporting and opposing affidavits of the parties but also their conduct in the light of all the surrounding circumstances.

6. Once defendant submitted affidavits in support of his motion for a stay of proceedings, the court could attach significance not only to what the affiants said but also as to what they failed to say as to facts within their knowledge.

Howard H. Gelb and Robert Weiner, Springfield, Ill., for appellant.

Charles H. Weyl, St. Paul (Londrigan & Londrigan, Springfield, Ill., of counsel), for respondent.

MATSON, Justice.

Defendant husband appeals from a judgment granting a divorce to the plaintiff and awarding her custody of the minor child, monthly support money of $62.50, and attorney's fees and costs.

This action for divorce on the grounds of desertion was commenced by plaintiff on February 25, 1954, in Ramsey county, Minnesota, against the defendant, who at that time, and during the entire course of the litigation involved herein, was on active duty as a captain in the United States Army stationed at Springfield, Illinois. On March 26, 1954, defendant filed his answer to plaintiff's complaint, and the case was set to be heard on May 31, 1954. Subsequently, on May 22, 1954, defendant filed a motion under the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A.ppendix, § 501 et seq., To stay all proceedings therein on the grounds that he was then in the military service, that his duties precluded him from appearing at the trial on May 31, 1954, and that he would be prejudiced by his inability to appear and testify in his own behalf. Defendant's supporting affidavit stated:

'That this affiant is presently assigned and has been made a member of a Board of Officers who are presently engaged in giving attention to confidential matters which will of necessity require his presence at the convenience of the President of said Board, * * *.

'That this affiant is also on special orders assigning him to the investigation of facts and circumstances surrounding the injury of certain enlisted men involved in accidents in this area which requires his presence until said investigations have been completed.'

An affidavit of defendant's immediate superior officer was also filed in support of the motion to corroborate defendant's statement of inability to be present in Minnesota for the trial on May 31, 1954.

A hearing was not held on this motion, apparently on the assumption that a settlement would be consumated between the parties. But on June 7, 1954, on application of the plaintiff, the court issued an order to show cause (returnable on June 11) why the above case should not be heard on or before June 29, 1954. Plaintiff's motion was supported by an affidavit of plaintiff's attorney which set forth the following facts which are undisputed by the defendant: That on March 3, 1954, immediately after the commencement of suit by the plaintiff in the present action in Minnesota, defendant commenced an independent action for divorce in the circuit court of Sangamon county, Illinois, in which he was named as plaintiff and the plaintiff herein was named as defendant; that on March 31, 1954, plaintiff herein served and filed an answer in the Illinois action alleging the pendency of the prior action in Minnesota; that it was agreed that both actions would be held in abeyance and an effort would be made to effect a property settlement agreement; that on June 5, 1954, plaintiff's attorney was notified by defendant's attorney that the Illinois case would come on for trial in Springfield, Illinois, on June 29, 1954, and that defendant husband herein would be available in the Illinois action on that date; that no property settlement had been agreed upon; and that the negotiations therefore had not been broken off prior to said notification.

On June 11, 1954, the order to show cause was heard, and there being no appearance by the defendant, the Minnesota district court ordered the trial of this case to be set for June 21, 1954. On June 17, 1954, defendant filed a second motion for a stay of proceedings under the Soldiers' and Sailors' Civil Relief Act with supporting affidavits stating that he had been notified of the ruling of our district court setting the date of trial as June 21, 1954, and setting out substantially the same reasons for his inability to appear and defend that were listed in the affidavits supporting his earlier motion for a stay of proceedings.

Our trial court on June 21, 1954, After having informed counsel for defendant three days earlier that the motion would be denied, decided that the ability of the defendant to conduct his defense was not materially affected by reason of his military service. Defendant's motion to stay the proceedings was therefore denied. No appearance being made by defendant, judgment was entered against him awarding plaintiff the custody of the parties' minor child, maintenance, and attorney's fees.

On this appeal, defendant seeks reversal of the order of June 21, 1954, and reversal and vacation of the judgment and decree of June 21, 1954.

1--2. Did the trial court err in denying defendant's motion for a stay of proceedings under § 521 of the Soldiers' and Sailors' Civil Relief Act? ¹ The act is to be construed in the light of the purpose for which it was enacted and the entirety of its language, subject to the controlling decisions of the United States Supreme Court. Declaratory of the act's purpose is § 510 ² which provides that the enforcement of civil liabilities, Which may prejudice the civil rights of persons in the service, shall be suspended In order to enable such persons to devote their entire energy to the defense needs of the nation. Pursuant to such purpose it is evident that the act was not intended to provide for the suspension of the enforcement of any civil liabilities unless such enforcement would Prejudice the soldier or sailor. It follows that, Absent prejudice to the soldier or sailor, there is no justification or requirement for a stay of legal proceedings. This purpose finds expression in § 521 which provides that the action or proceeding shall be stayed Unless the court in its opinion finds that the soldier or sailor's ability to defend or prosecute the action Is not materially affected by reason of his military service. Clearly, the element of Prejudice, which is essential to the granting of a stay, finds expression in the words Not materially affected. Whether such prejudice exists to a Material extent which justifies granting a motion for a stay of proceedings is to be determined by the court as a matter of judicial discretion. ³

In Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 1231, 87 L.Ed. 1587, 1596, rehearing denied, 320 U.S. 809, 64 S.Ct. 26, 88 L.Ed. 489, the United States Supreme Court established certain guideposts for the exercise of that discretion when it said:

'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...