State ex rel. Stenstrom v. Wilson

Decision Date08 June 1951
Docket NumberNo. 35602,35602
Citation234 Minn. 570,48 N.W.2d 513
CourtMinnesota Supreme Court
PartiesSTATE ex rel. STENSTROM et al. v. WILSON.

Dell, Rosengren & Rufer, Fergus Falls, for relators.

Field, Field & Arvesen, Fergus Falls, for respondent.

PER CURIAM.

During the month of March 1950, Carl Lyngstad, by his guardian, commenced an action against relators herein for damages for personal injuries alleged to have been sustained when he was struck by an automobile owned by relator Clifford Stenstrom and driven by relator Eugene Stenstrom. The case was on the November 1950 general term calendar and was continued over the term without opposition, on motion of defendants, on the ground that Eugene Stenstrom was in the armed services and unable to be present at the trial. The case was again called for trial at the April 1951 general term of court, and defendants again moved for a continuance on the ground that Eugene Stenstrom was still in the service. In motion was based on the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 521. Affidavits were submitted by both parties, and it appears therefrom that plaintiff is 65 years of age and in poor health. Plaintiff contends that it will materially prejudice his case to further delay the trial over another term. Defendants contend that it is essential that Eugene Stenstrom be present at the trial. His deposition has now been taken. An effort was made to procure his release on a temporary leave so that he could attend the trial, but he was denied a leave and was promised that he could return sometime during the month of June.

On May 4, 1951, the trial judge wrote counsel for the respective parties a letter informing them that the case, subject to defendants' motion for a continuance, would stand for trial on May 28, 1951, at 2 p.m. On May 14, the trial court issued a formal order setting the motion for continuance for hearing on May 28 at 10 a.m. and setting the case for trial at 2 p.m. on the same day, subject to the motion. In the same order, the jury was recalled for May 28 at 2 p.m. On May 18, after receiving letters from counsel for both parties, the trial judge again wrote counsel for defendants, a copy of which was sent to opposing counsel, informing them that he would rule on the motion for continuance by noon of May 28 and that if the motion was denied the case would be called for trial at two o'clock of the same day.

In addition to Eugene Stenstrom, one of defendants' witnesses is now resident in Louisiana and another in Montana. Efforts were made by defendants to have the court pass on the motion for a continuance in advance of the trial, but to no avail.

We issued our order to show cause why a writ of prohibition should not issue prohibiting the trial court from proceeding under its order of May 14 and temporarily stayed further proceedings until said matter could be heard.

50 U.S.C.A.Appendix, § 521, provides in part 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 * * * 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 plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.'

The 1918 and 1940 Soldiers' and Sailors' Civil Relief Acts are substantially the same. In Taylor v. McGregor State Bank, 144 Minn. 249, 251, 174 N.W. 893, 894, we held that the 1918 act was applicable to federal and state courts alike, and said: '* * * It provides generally for restraining judicial proceedings against those in the...

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15 cases
  • Ginsberg v. Williams
    • United States
    • Minnesota Supreme Court
    • 26 Marzo 1965
    ...Minn. Sess.Law Serv. 1958, No. 1, p. 21.9 Ibid.10 State ex rel. Byram v. Johnson, 173 Minn. 271, 217 N.W. 351; State ex rel. Stenstrom v. Wilson, 234 Minn. 570, 48 N.W.2d 513; State ex rel. Hierl v. District Court, 237 Minn. 456, 54 N.W.2d 5. See, also, Riesenfeld, Bauman & Maxwell, Judicia......
  • Fazio v. Fazio
    • United States
    • Appeals Court of Massachusetts
    • 24 Febrero 2017
    ...so as to protect the civil rights of those serving in our armed forces during the tenure of their service." State v. Wilson, 234 Minn. 570, 572, 48 N.W.2d 513 (1951).The husband sought a stay of the October 7, 2010, hearing by sending a letter by facsimile to the Probate and Family Court on......
  • Wood v. Woeste
    • United States
    • Kentucky Court of Appeals
    • 1 Mayo 2015
    ...1960) ; Cadieux v. Cadieux, 75 So.2d 700 (Fla.1954) ; Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952) ; State ex rel. Stenstrom v. Wilson, 234 Minn. 570, 48 N.W.2d 513 (1951) ; Huckaby v. Oklahoma Office Bldg. Co., 201 Okla. 141, 202 P.2d 996 (1949) ; Rauer's Law & Collection Co. v. H......
  • Shacter v. Richter
    • United States
    • Minnesota Supreme Court
    • 23 Abril 1965
    ...the power of the court, but an abuse of discretion which leaves them with no other adequate remedy at law. State ex rel. Stenstrom v. Wilson, 234 Minn. 570, 48 N.W.2d 513; State ex rel. Hierl v. District Court, 237 Minn. 456, 54 N.W.2d 5; Weidel v. Plummer, 243 Minn. 476, 68 N.W.2d 1. In su......
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