Slove v. Strohm

• Decision Date: 08 April 1968
• Docket Number: Gen. No. 51910
• Citation: 236 N.E.2d 326,94 Ill.App.2d 129
• Parties: Cherie A. SLOVE, Plaintiff-Appellee, v. John STROHM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 326

236 N.E.2d 326

94 Ill.App.2d 129

Cherie A. SLOVE, Plaintiff-Appellee, v. John STROHM, Defendant-Appellant.

Gen. No. 51910.

Appellate Court of Illinois, First District, First Division.

April 8, 1968.

Block, Levy & Becker and Lawrence K. Posner, Chicago, for appellant.

Samuel Alfassa, Chicago, Myles A. Grill, Chicago, of counsel, for appellee.

ADESKO, Justice.

A complaint based on the Paternity Act (Ill.Rev.Stat.1965, Ch. 106 3/4, Sec. 51 et seq.) was filed against the defendant on April 19, 1966. On April 29, 1966, defendant filed his appearance, jury demand and a motion for a stay under the Soldiers' and Sailors' Civil Relief Act (50 U.S.C. Sec. 501 et seq.). The petition for a stay was renewed on four subsequent occasions but was consistently denied by the trial court. In his post trial motion, defendant raised as the sole ground for vacating and setting aside the jury verdict which had been rendered against him, the fact that his petition for a stay of the proceedings had been denied. He now prosecutes this appeal on that same issue.

Section 521 of the Soliders' and Sailors' Civil Relief Act provides 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 three copies of defendant's motion for a stay that are contained in the record on this appeal are substantially identical. The first motion, filed April 29, 1966, has attached to it a copy of Marine Corps orders directing defendant to report to the base at Quantico, Virginia. The second motion, filed September 29, 1966, has attached to it as an exhibit, a certificate from the personnel department of the U.S. Marine Corps indicating that defendant was a Marine and stationed at Camp LeJeune, North Carolina. The third petition, filed October 25, 1966, incorporated by reference, the certificate of record of military service attached to the September 29th motion.

In Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587 (1943), the Supreme Court considered a case in which a petition for a stay under the Soliders' and Sailors' Civil Relief Act had been denied. In Boone, as here, the defendant contended that the Act rendered a continuance mandatory. In response to that argument, Mr. Justice Jackson stated:

'The Act cannot be construed to require continuance on mere showing that the defendant was in Washington in the military service. Canons of statutory construction admonish us that we should not needlessly render as meaningless the language which, after authorizing stays, says '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." (p. 565, 63 S.Ct. p. 1226)

The above language from Boone is clearly applicable in the instant case. We do not feel that because defendant was in the military service, he was automatically entitled to a stay of the proceedings. Thus, the only issue for us to determine is whether the trial judge abused his discretion in denying the requested stay of proceedings.

In Boone, the Supreme Court refrained from declaring any rigid doctrine with respect to who had the burden of proof to sustain a petition for a stay of proceedings. However, it is clear from the Boone opinion that the petitioner must allege something more than his mere being in the military service. Not one of the petitions filed by the defendant in the instant cause indicated when he would be available and present in Chicago to defend the instant action. He was given an opportunity to set a date at some time in the reasonable future, but declined to do so. There was no indication of when ...