Richardson v. First Nat. Bank of Columbus, Ga.

• Decision Date: 26 August 1970
• Docket Number: 5 Div. 15
• Parties: Billy R. RICHARDSON and Peggy Joyce Craven Richardson v. The FIRST NATIONAL BANK OF COLUMBUS, GEORGIA, a Corporation.
• Court: Alabama Court of Civil Appeals

Page 676

242 So.2d 676

46 Ala.App. 366

Billy R. RICHARDSON and Peggy Joyce Craven Richardson v. The FIRST NATIONAL BANK OF COLUMBUS, GEORGIA, a Corporation.

5 Div. 15.

Court of Civil Appeals of Alabama.

Aug. 26, 1970.

Rehearing Denied Sept. 16, 1970.

Paul J. Hooton, Roanoke, for appellants.

Lewis H. Hammer, Jr., Roanoke, for appellee.

WRIGHT, Judge.

A statutory detinue action was brought by appellee, The First National Bank of Columbus, Georgia, against appellants Billy R. Richardson and wife, Peggy Joyce Craven Richardson, in the Circuit Court of Randolph County, Alabama, on the 4th of October 1967.

Affidavit and bond was filed by appellee as required by Title 7, Section 918, Code of Alabama 1940. The property sued for was a house trailer. Under the endorsement of the clerk on the summons, the sheriff seized the trailer. When appellants failed to make bond to retain possession, appellees executed a replevin bond in the amount of $6,000 and were given possession of the trailer.

Appellant, Peggy Richardson, was served with the summons and complaint on October 10, 1967, but appellant, Billy R. Richardson, was not served until March 11, 1968. The replevin bond was filed and possession given to appellee on the 16th of October, 1967.

On March 18, 1968 and March 23, 1968, respectively, sworn pleas were filed by Billy and Peggy Richardson. These pleas asserted the fact that Billy Richardson was a member of the armed services and thus both defendants were under the protection of the Soldiers and Sailors Civil Relief Act. The pleas demanded an abatement of the suit. The pleas were never requested to be set for hearing, nor any order of stay requested of the court.

The court's bench notes as to the proceedings in the case were as follows:

'BENCH NOTES

'1/19/68--Continued not at issue. To be disposed of by the next term of this court.

/s/ Albert Hooton, Judge

'7/22/68--Continued, defendant in military service.

/s/ Albert Hooton, Judge

'1/21/69--Continued, defendant still in military service.

/s/ Dan Boyd, Judge

'7/14/69--The court noted from the file that this case has been on the docket since 10/4/67. Defendant, Billy R. Richardson, is now in the military service of the U.S. and has been since March 27, 1967. Mr. Richardson's attorney, Hon. Paul J. Hooton, advised the Court that the defendant, Mr. Richardson, would be out of the service in about three (3) months. Case continued.

/s/ L. J. Tyner, Judge

'1/20/70--Defendants file written plea of general issue in short by consent with leave, etc.

/s/ Dan Boyd, Judge

'1/20/70--Set for trial Wednesday 2/11/70.

/s/ Dan Boyd, Judge

'2/11/70--In open court trial and upon consideration of the evidence and testimony, judgment for the plaintiff against the defendants for the property sued for to-wit: one 1966 Fleetwood 52 12 trailer, Serial Number S--5771 and costs.

/s/ Dan Boyd, Judge'

The bench notes disclose that the trial was continued four times, covering a period of one and one-half years, because of appellant's absence in military service. Issue was not joined by appellants for more than two years. Upon the case becoming at issue on the filing of a plea in short by consent, the case was continued for another two months for trial.

It thus appears that appellants did not prosecute what they termed a plea in abatement, but joined issue on the complaint.

It is apparently appellants' contention in brief that by filing the plea in short by consent, that they were entitled to offer evidence in support of their plea in abatement and treat it as a defense in bar.

In the beginning of this opinion we will state that appellants aver in brief that 'There are 19 assignments of error in this cause,' and then proceed to argue them in bulk without specifying them individually or collectively. Such procedure in a brief is clearly subject to the rule that if one is without merit the others will not be considered. Supreme Court Rule 1, Thornton v. Tutt, 283 Ala. 72, 214 So.2d 425. However, we do not choose to invoke this rule since most of the errors assigned relate to the application of the Federal Civil Relief Act of 1940, as amended, or what is commonly called the Soldiers and Sailors Civil Relief Act, 54 Stat. 1178, 50 U.S.C.App. Sections 501--590. We consider the majority of assignments sufficiently related to support bulk argument. In addition, there is a dearth of cases in this jurisdiction which have in any way considered the Soldiers and Sailors Civil Relief Act, and this case raises questions thereon which should be clarified.

It is the apparent impression of counsel for appellants that it is the purpose of the act to bar or abate any action brought by a plaintiff against a defendant who is a member of the armed services. This impression is entirely wrong. 50 U.S.C.A. App. Section 521, reads as follows:

'At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act (sections 501--548 and 560--590 of this Appendix), unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.'

The purpose of the Civil Relief Act of 1940 is stated in 50 U.S.C.A App. Sec. 510. That purpose has been interpreted in numerous cases and in various ways, but we think most clearly in the case of Bowsman v. Peterson, D.C.Neb.1942, 45 F.Supp. 741, from which we quote:

'The Soldiers and Sailors Civil Relief Act of 1940 (in like manner with all similar previous acts in our history) was prompted by at least wo considerations, first, the maintenance in the armed forces of a reasonable measure of that unbothered serenity and security in respect of personal responsibilities which effectively promotes military efficiency and the national defense; and secondly, the assurance that in the field of individual justice no advantage in judicial proceedings by or against a soldier or sailor will result from his absorption in his country's defense.'

It can readily be seen that provisions are made by Section 521 for the stay of proceedings, if it appears to the court a defendant's ability to conduct his defense in an action is materially affected by reason of his military service. Relief against a default judgment is provided in Section 520. Stay of execution of judgments and vacation, or stay of attachments and garnishments, are provided for in Sections 523 and 524. Sections 531 and 532 prohibit repossession or seizure of real or personal property under a mortgage, purchase contract, or installment contract with a person in military service, except by proceedings in court. If such court proceedings are instituted, they are subject to the provisions of subsection (3) of Section 531:

'(3) Upon the hearing of such action the court may order the repayment of prior installments or deposits or any part thereof, as a condition of terminating the contract and resuming possession of the property, or may, in its discretion, on its own motion, and shall, on application to it by such person in military service or some person on his behalf, order a stay or proceedings as provided in this Act (sections 501--548 and 560--590 of this Appendix) unless, in the opinion of the court, the ability of the defendant to comply with the terms of the contract is not materially affected by reason of such service; or it may make such other disposition of the case as may be equitable to conserve the interests of all parties.'

The Congress of the United States has by the enactment of the Civil Relief Act of 1940, supra, very carefully provided for the protection of those serving in the armed forces of this country. However, it is clear that if an action is begun and service is had and notice is given of such action to the serviceman, it is incumbent upon him or his agent to bring to the attention of the court the fact of his service connection. It is further clear that the court may, of its own motion, or upon application to it by such serviceman, stay such action, unless in the opinion of the court, the ability of the defendant to conduct his...