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CIVIL RELIEF OF SOLDIERS.
Protection of debtors, 2064.
civil relief act, 2069. Attorneys of soldiers, 2070. Afidavits
Filed after entry of judgment, 2072. Judgment on default :
Protection of soldiers, 2073.
Breach of contract, 2076.
2077. Continuance, 2078. Period of military service not included
in time of statutes of limitations,
2079. Codefendants proceeded against, 2080. Evidence of military service, 2081.
Proof of death, 2082.
Protection of owner, 2085.
Rent not paid by dependents of soldiers :
Protection of tenants, 2089.
Compulsory allotment of pay, 2091, Installments on purchase of real property
un paid, 2092. Mortgage obligations :
Stay of proceedings, 2093.
Sale of property restricted, 2094, Life insurance : Definitions of policy, premium, insured,
insurer, 2095. Protection of policies, 2096.
Application for, 2097.
Voidable policies rejected, 2101.
Reserves maintained by, 2105.
2107. Unpaid premiumsDeducted from proceeds of policy in
case of death, 2108. Lapse of policy after discharge from
military service, 2109. Income tax, 2110. Tax on assessments, 2111. Not levied if proceeds inure to benefit of
2064. Protection of debtors.--No enlisted man shall, during his term of service, be arrested on mesne process, or taken or charged in execution for any debt, unless it was contracted before his enlistment, and amounted to twenty dollars when first contracted. R. S. 1237.
2065. Suspension of legal proceedings.—That for the purpose of enabling the United States the more successfully to prosecute and carry on the war in which it is at present engaged, protection is hereby extended to persons in military service of the United States in order to prevent prejudice or injury to their civil rights during their term of service and to enable them to devote their entire energy to the military needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the continuance of the present war. Sec. 100, act of March 8, 1918 (40 Stat. 410).
Sec. 604, act of Mar. 8, 1918 (40 Stat. 449), provides “ That this Act may be cited as the Soldiers' and Sailors' Civil Relief Act."
2066. Period during which Soldiers' and Sailors' Civil Relief Act will be in force.-That this Act shall remain in force until the termination of the war, and for six months thereafter: Provided, That wherever under any section or provision of this Act a proceeding, remedy, privilege, stay, limitation, accounting, or other transaction has been authorized or provided, the due exercise or enjoyment of which may extend beyond the period herein fixed for the termination of this Act, such section or provision shall be deemed to continue in full force and effect so long as may be necessary to the exercise or enjoyment of the proceeding, remedy, privilege, stay, limitation, accounting, or transaction aforesaid. Sec, 603, act of March 8, 1918 (40 Stat. 449).
For joint resolution providing that certain statutes the operation of which is contingent upon the existence of a state of war shall be construed as if the World War had ended on March 3, 1921, see 2835, post,
Notes of Decisions,
Foreclosure of mortgage.-- Where a bond was signed by a chief yeoman in the Naval Reserve, and was secured by a mortgage on the real estate of another
person, the mortgage may be foreclosed in regular course, in the absence of proof that injury would result to the sailor by reason of his being in the service, and that he is thereby
unable to protect his interest. A stay in entering personal judgment against the sailor for any deficiency over the amount realized from the real estate was properly granted by the trial court until six months after the termination of the war with Germany. Dietz v. Treupel (1918) 170 N. Y. Supp. 108.
2067. Relief of sureties, etc., of soldiers.--Whenever pursuant to any of the provisions of this Act the enforcement of any obligation or liability, the prosecution of any suit or proceeding, the entry or enforcement of any order, writ, judgment, or decree, or the performance of any other act, may be stayed, postponed, or suspended, such stay, postponement, or suspension may, in the discretion of the court, likewise be granted to sureties, guarantors, indorsers, and others subject to the obligation or liability, the performance or enforcement of which is stayed, postponed, or suspended.
When a judgment or decree is vacated or set aside in whole or in part, as provided in this Act, the same may, in the discretion of the court, likewise be set aside and vacated as to any surety, guarantor, indorser, or other person liable upon the contract or liability for the enforcement of which the judgment or decree was entered. Scc. 103, act of Mar. 8, 1918 (10 stat. 441).
2068. Definition of terms used in the Soldiers' and Sailors' Civil Relief Act. (1) That the term “persons in military service," as used in this Act, shall include the following persons and no others: All officers and enlisted men of the Regular Army, the Regular Army Reserve, the Officers' Reserve Corps, and the Enlisted Reserve Corps; all officers and enlisted men of the National Guard and National Guard Reserve recognized by the Militia Bureau of the War Department; all forces raised under the Act entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States," approved May eighteenth, nineteen hundred and seventeen; all officers and enlisted men of the Navy, the Marine Corps, and the Coast Guard; all officers and enlisted men of the Naval Militia, Naval Reserve force, Marine Corps Reserve, and National Naval Volunteers recognized by the Navy Department; all officers of the Public Health Service detailed by the Secretary of the Treasury for duty either with the Army or the Navy; any of the personnel of the Lightnouse Service and of the Coast and Geodetic Survey transferred by the President to the service and jurisdiction of the War Department or of the Navy Department; members of the Nurse Corps; Army field clerks; field clerks, Quartermaster Corps; civilian clerks and employees on duty with the military forces detailed for service abroad in accordance with provisions of existing law; and members of any other body who have heretofore or may hereafter become a part of the military or naval forces of the United States. The term “military service," as used in this definition, shall signify active service in any branch of service heretofore mentioned or referred to, but reserves and persons on the retired list shall not be included in the term persons in military service" until ordered to active service. The term “active service" shall include the period during which a person in military service is absent from duty on account of sickness. wounds, leave, or other lawful cause.
(2) The term “period of military service,” as used in this Act, shall include the time between the following dates: For persons in active service at the date of the approval of this Act it shall begin with the date of approval of this Act; for persons entering active service after the date of this Act, with the date of entering active service. It shall terminate with the date of discharge from active service or death while in active service, but in no case later than the date when this Act ceases to be in force.
(3) The term “person,” as used in this Act, with reference to the holder of any right alleged to exist against a person in military service or against a person secondarily liable under such right, shall include individuals, partnerships, corporations, and any other forms of business association.
(4) The term court as used in this Act shall include any court of competent jurisdiction of the United States or of any State, whether or not a court of record.
(5) The term “ termination of the war” as used in this Act shall mean the termination of the present war by the treaty of peace as proclaimed by the President. Sec. 101, act of Mar. 8, 1918 (40 Stat. 440).
For joint resolution providing that certain statutes the operation of which is contingent upon a state of war shall be construed as if the World War bad ended on March 3, 1921, see 2835, post.
2069. Enforcement of the Soldiers' and Sailors' Civil Relief Act.-(1) That the provisions of this Act shall 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, and to proceedings commenced in any court therein, and shall be enforced through the usual forms of procedure obtaining in such courts or under such regulations as may be by them prescribed.
(2) When under this Act any application is required to be made to a court in which no proceeding has already been comnienced with respect to the matter, such application may be made to any court. Sec. 102, act March 8, 1918 (40 Stat. 441).
2070. Attorneys to represent persons in military service.--In any action or proceeding in which a person in military service is a party if such party does not personally appear therein, or is not represented by an authorized attorney, the court may appoint an attorney to represent him; and in such case a like bond may be required and an order made to protect the rights of such person. But no attorney appointed under this Act to protect a person in military service shall have power to waive any right of the person for whom he is appointed or bind him by his acts. Sec. 200(3), act of March 8, 1918 (40 Stat. 442).
A “ like bond" refers to a bond such as described in 2073, post.
2071. Penalty for false affidavit.-Any person who shall make or use affidavit required under this section knowing it to be false shall be guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by fine not to exceed $1,000, or both. Sec 200(2), act of March 8, 1918 (40 Stat. 441).
2072. Affidavit as to military service filed after entry of judgment.— That where any judgment has been entered since March 8, 1918, in any action or proceeding commenced in any court where there was a failure to file in such action the affidavits required by section 200 of article 2 of the Act approved March 8, 1918, entitled "An Act to extend protection to the civil rights of members of the Military and Naval Establishments of the United States engaged in the present war" (Fortieth Statutes at Large, page 440), the plaintiff, after such notice as the court may prescribe, may file an affidavit stating that the defendant, or defendants, in default in such judgments, are not at the time of such filing, and were not at the time of the entry of such judgment, in the paval or military service of the United States, and upon the filing of such affidavit the court may enter an order that such judgment, if otherwise legal, shall stand and be effective as of the date of the entry of such judgment as if such affidavit had been duly filed. Any person who shall make or use such an affidavit as aforesaid, knowing it to be false, shall be punishable by imprisonment not to exceed two years or by fine not to exceed $5,000, or both, in the discretion of the court. Act of Sept. 3, 1919 (41 Stat. 282).
2073. Protection against judgment on default.-That in any action or proceeding commenced in any court if there shall be a default of an appearance by the defendant the plaintiff before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judg. ment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require as a condition before judgment is entered that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, it in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court inay make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act. Sec. 200 (1), act of March 8, 1918 (40 Stat. 441).
Notes of Decisions.
Benefit of section.-Failure to file the affidavit required by this section does not entitle defendants who were not, in fact, in the military service, to have set aside a
default judgment against them. Howie Minivg Co. v. McGary (D. C. 1919), 256 Fed. 38.
2074. Judgment reopened after discharge from military service.-If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, inade by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this Act shall not impair any right or title acquired by any bona fide purchaser for value under such judgment. Sec. 200 (4), act of March 8, 1918 (40 Stat. 412).
2075. Stay of proceedings.--That at any stage thereof any action or proceeding commenced in any court by or against a person in military service 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, 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. Sec. 201, act of March 8, 1918 (40 Stat. 442).
Notes of Decisions.
Furlongh.--A member of the National Guard who was in the Federal service was granted a furlough to return to attend to some of his private business. While on his way to the train to return to his regiment within the time specified by his furlough he was
served with summons and plaint. He bad only balf an hour in which
to employ an attorney and advise him of the situation. The guardsman's testimony was necesssary to explain books of account required for his defense. Held, That the trial court abused its discretion in refusing to grant a continuance of the case. Elliott 1. Lawson (1918), 170 Pac. 925, Supreme Court of Oregon.
2076. Stay of action for breach of contract.—That when an action for compliance with the terms of any contract is stayed pursuant to this Act no fine or penalty shall accrue by reason of failure to comply with the terms of such contract during the period of such stay, and in any case where a person fails to perform any obligation and a fine or penalty for such nonperformance is incurred a court may, on such terms as may be just, relieve against the enforcement of such fine or penalty if it shall appear that the person who would suffer by such fine or penalty was in the military service when the penalty was incurred and that by reason of such service the ability of such person to pay or perform was thereby materially impaired. Sec. 202, act of March 8, 1918 (10 Stat. 412).
2077. Stay of execution, and vacation or stay of attachment or garnishment.-That in any action or proceeding commenced in any court against a person in military service, before or during the period of such service, or within sixty days thereafter, the court may, in its discretion, on its own motion, or on application to it by such person or some person on his behalf shall, unless in the opinion of the court the ability of the defendant to comply with the judgment or order entered or sought is not materially affected by reason of his military service:
(1) Stay the execution of any judgment or order entered against such person, as provided in this Act, and