4. Territorial Jurisdiction

The provisions of the act apply to the United States, the several States and Territories, the District of Columbia, and all territory subject to the jurisdiction of the United States, including the Philippine Islands while under the sovereignty of the United States, and to proceedings commenced in any court therein whether or not a court of record (sec. 101 (4), 102 (1)).

5. Persons Covered

The act covers all "persons in military service" of the United States, which includes all members of the Army, the Navy, the Marine Corps, the Coast Guard, and all officers of the Public Health Service detailed by proper authority for duty with either the Army or the Navy (sec. 101 (1)).

The term "military service" signifies Federal service on active duty with any of the above branches of service as well as training or education under the supervision of the United States preliminary to induction into the military service and includes the period during which a person is absent from duty on account of sickness, wounds, leave, or other lawful cause (sec. 101 (1)).

The "period of military service" includes the time between the following dates: For persons in active service on October 17, 1940, it took effect immediately; for persons entering active service it takes effect with the date of such entrance; and these periods shall terminate with the date of discharge from active service or death but in no case later than the date when this act ceases to be in force (sec. 101 (2)).

A certificate testifying to the military service will be furnished by the Adjutant General of the Army, the Chief of the Bureau of Navigation of the Navy, or the Major General Commandant of the United States Marine Corps, upon application; which certificate when produced is prima facie evidence of the following facts (sec. 601):

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1. That the person named has not been, or is, or has been, in military service.

2. The date when, the place where, such person entered into military service and his residence at that time.

3. The rank, branch, and unit of service entered.

4. The period of military service.

5. The monthly pay received at the date of issuing the certificate. 6. The date and place of death or discharge from such service; and 7. The authority of the signer of the certificate to issue the same.

6. Presumption of Death

Persons in military service who have been reported missing are presumed to continue in service until accounted for. Under the act, any

It is understood that the Navy Department will designate commanding officers of ships and stations to furnish such certificates.

Except in the case of an application by a member or former member of any one of the services for his own certificate, a certified copy of an order of the court wherein the proceedings are pending must accompany the application.

"Application to the court for an order to accompany the request for a certificate, and for any stay pending its receipt will be conformed to the usual practice of the court; but it should be noted that the certificate is not indispensable and that other evidence, such as an affidavit reciting the fact of military service, may suffice. Consideration should be given to the effect of the act upon the rights of men in service who appear as plaintiff's or cross-complainants and upon any application for a default judgment in any kind of action or proceeding.

computation of time which begins or ends with the death of a person shall not begin or end until the death of such person is established by the Department of War or Navy, or by a court of competent jurisdiction, but this provision cannot be given effect beyond six months after the time when the act ceases to be in force (sec. 601 (3)).

B. REMEDIES

1. Statutes of Limitation

The statutes of limitation are tolled during the period of military service in any action by or against any person in military service, his heir, executor, or assigns, whether such cause of action accrued prior to or during such service (sec. 205).

2. Judgments by Default

The act provides protection for those in military service from any prejudice to their interests by the entry of default judgments. In any action or proceeding in any court wherein the defendant does not appear, the plaintiff before entering judgment must file an affidavit setting forth facts showing that the defendant is not in the military service. If the plaintiff is unable to file such affidavit, he must file in lieu thereof an affidavit to the effect that the defendant is in military service or that the plaintiff is unable to determine whether or not the defendant is in service. Where the affidavit discloses the military service, the court on application must appoint an attorney to represent the defendant and thereafter judgment may be entered only by court order. Unless it definitely appears by affidavit that the defendant is not in service, no judgment shall be entered without securing a court order authorizing such entry and the court may require as a condition that plaintiff file a bond to indemnify defendant, if in the military service, against loss by the entry of a judgment should such judgment thereafter be set aside in whole or in part. The court has discretion to make such order or enter such judgment as it deems necessary to protect the rights of the defendant under the act (sec. 200 (1)).

A judgment rendered under this section during the period of defendant's military service or within 30 days thereafter may, upon application, be reopened with leave to defend not later than 90 days after the termination of service, provided it appears that the defendant was prejudiced by reason of his service in making his defense and has a meritorious or legal defense to the action or some part thereof; but the vacating, setting aside, or reversing any judgment because of the provisions of the act does not impair any right or title acquired by a bona fide purchaser for value under such judgment (sec. 200 (4)).

Where the court is empowered to appoint an attorney to represent an absent defendant, it may require the filing of a bond to indemnify the defendant by reason of any damage caused by the entry of a judgment which should thereafter be set aside and it may enter any order to protect the defendant's rights, but no attorney so appointed has power to waive the rights of the person in military service or bind him by his acts (sec. 200 (3)).

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The execution or use of an affidavit required for the entry of judgment with knowlege of its falsity is a misdemeanor punishable by 1 year's imprisonment or by fine not to exceed $1,000 or both (sec. 200 (2)).

8. Stay of Proceedings

The power to grant a stay of proceedings wherein a person in military service is involved is largely within the discretion of the court (sec. 201, 203). There is no automatic moratorium as to civil obligations during military service. The court may, on its own motion, and shall, on an application by a person in military service or his representative during the period of service or 60 days thereafter, grant a stay of proceedings unless in the opinion of the court the ability of the plaintiff to prosecute the action or of the defendant to conduct his defense is not materially affected by his military service (sec. 201). The stay is limited to "the period of military service and 3 months thereafter or any part of such periods" and is subject to such terms as the court in its discretion may impose (sec. 204).

Where the person in military service is a codefendant, the plaintiff may by leave of court proceed against the others (sec. 204).

The court may likewise stay the execution of any judgment or order entered against a person in military service and may vacate or stay any attachment or garnishment of property, money, or debts in the hands of another, whether before or after judgment (sec. 203).

Where a stay is obtained, no fine or penalty will accrue for noncompliance with the terms of a contract during the period of the stay. In any case where a fine or penalty is incurred for nonperformance, the court may relieve against the enforcement thereof where it appears that the person who would be liable was in the military service when the penalty was incurred, and that his ability to pay or perform was materially impaired by reason of his military service (sec. 202).

4. Sureties, Guarantors, Endorsers

Whenever the enforcement of any civil obligation, the prosecution of any suit or proceeding, the entry of a judgment or the performance of any act, is stayed or postponed or suspended, the court in its discretion may likewise grant such stay, postponement, or suspension to parties secondarily liable. When a judgment or decree is set aside in whole or in part, the court can likewise set aside or vacate such adjudication against the parties secondarily liable (sec. 103).

5. Evasive Transfers of Interests

The courts are given power to enter judgments or orders, the provisions of this act notwithstanding, where it appears to the court's satisfaction that any interest, property, or contract has been transferred with intent to delay the just enforcement of such right by taking advantage of this act (sec. 600).

C. REAL PROPERTY

1. Eviction and Distress

The remedy of eviction and distress has been substantially limited so as to save the dependents of soldiers and sailors from summary eviction. Any premises, occupied chiefly for dwelling purposes by a wife, children, or other dependents, for which the agreed rent does not exceed $80 per month, fall within the terms of the act. No eviction or distress may be had during the period of military service except upon leave of the court. Here again the protection is extended if the ability of the tenant to pay the rent is materially affected by reason of the military service. The court has the power to stay the proceedings of eviction or distress for not longer than 3 months and may make such other order as may be just (sec. 300).

Subject to regulations prescribed by the respective members of the Cabinet allotments of the pay of a person in military service may be ordered in reasonable proportion to discharge the rent of premises occupied for dwelling purposes by the wife, children, or other dependents (sec. 300 (4)).

Any person who shall knowingly take part in any eviction or distress otherwise than as provided in the act is guilty of a misdemeanor and subject to imprisonment not to exceed 1 year or fine not to exceed $1,000 or both (sec. 300 (3)).

2. Taxes and Assessments

If a person owns and occupies at the commencement of his military service real property for dwelling, agricultural, or business purposes which property is still occupied by his dependents or employees, and if an affidavit is filed with the collector of taxes showing:

(a) That a tax or assessment has been assessed upon such property, (b) That such tax or assessment is unpaid, and

(c) That by reason of such military service the ability to pay such tax or assessment is materially affected,

such person is entitled to the following relief: No sale, action, or proceeding to enforce the collection of a tax or assessment may be commenced except with the court's permission upon application by the collector of the tax, and the court may stay such proceeding or sale for not more than 6 months after the termination of the period of military service. The unpaid tax or assessment shall bear interest at 6 percent per annum but no other interest or penalty shall be incurred (sec. 500).

In the cases of sale or forfeiture for nonpayment of taxes the person in military service has the right to redeem or commence an action to redeem within 6 months after the military service. This time limitation, however, does not shorten any period for redemption now or hereafter provided by the laws of any State or Territory (sec. 500 (3)).

3. Mortgages

The mortgage protection applies to obligations originating prior to October 17, 1940, secured by mortgage, trust deed, or other secu

rity in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of military service and still so owned by him (sec. 302 (1)).

The courts are given the power, in proceedings to enforce such obligations commenced during the period of military service, on their own motion or on application by interested persons, to stay the proceeding or make such other disposition as may be equitable to conserve the interests of all parties; but the courts will not act if the ability of the defendant to comply with the terms of his obligation is not materially affected by reason of his military service (sec. 302 (2)).

No sale under a power of sale or under a judgment entered upon warrant of attorney to confess judgment contained in any such application shall be valid if made during the period of military service or within three months thereafter, unless upon an order of sale previously granted by the court and a return thereto made and approved by the court (sec. 302 (3)).

4. Installment Contracts

See comment under "Personal property" page 18 of this Manual.

5. Public Lands

The general law as to homesteads and public lands is relaxed for the benefit of persons in military service, including citizens of the United States serving with forces of any country with which it may be allied in the prosecution of a war (sec. 512), and persons under 21 are given the same rights as those over that age (sec. 511). No rights to the public lands of the United States initiated or acquired prior to entrance into military service are prejudiced or forfeited by reason of absence from the land, or failure to perform any work or do any act required (sec. 501 (1)).

Various provisions of the act require a claimant, lessee, or permittee to give notice of entrance into military service and to claim the benefits of the act (sec. 504 (3), 505 (2), 506 (2), 510 (1)). The Secretary of the Interior has been given extensive powers to effectuate all these provisions and has issued regulations to carry out the purposes of the act (secs. 507, 508).

(a) Grazing fees

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The permittee or licensee of grazing privileges may elect to suspend his permit or license for his period of service and 6 months thereafter and may obtain a reduction or refund of his grazing fees (sec. 501 (2)).

(b) Homesteads

If a person in the service has a homestead entry or has made an application therefor, his service constitutes the equivalent of cultivation and residence upon the homestead. In the event that he is discharged for wounds received or disability incurred while in service,

Application should be made to the proper district land office or to the Department of the Interior, Washington, D. C., for the appropriate regulations, including the amendments of Sections 6 and 8 of the Federal Range Code, approved December 5, 1940.