A decision of profound importance to members of the armed forces has recently been handed down by the Supreme Court of the United States, in the case of Boone v. Lightner 63 S. Ct. 1223. This case relates to the right of a person in military service to a stay of court proceedings where he is either plaintiff or defendant (in accordance with Section 201) Soldiers’ and Sailors’ Civil Relief Act of 1940.
The defendant, Major Daniel F. Boone, was at the time the case came up for trial stationed in Washington, D. C., assigned to the International Division, Headquarters Services of Supply, U. S. Army. His attorney invoked the provisions of the Soldiers’ and Sailors’ Civil Relief Act by appearing before the trial court in North Carolina and moving for a continuance. The affidavit submitted by the defendant in support of his motion for a continuance, after reciting the Division to which he was assigned, stated:
The work in said Division is very heavy, and full time and some extra time are required of all officers in said Division, including the defendant. 1’rior to the declaration of War on December 8, 1941, the work in this Division was very heavy, but since the declaration of War the volume of work has been greatly increased. No leaves whatever have been granted, except in cases of serious emergency.
The section principally invoked reads:
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, 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.
Counsel for Major Boone argued that the defendant’s military service rendered a continuance mandatory, or, if not mandatory, that the court in its discretion should grant a continuance until such time as the defendant could properly conduct his defense.
The trial court, however, denied the motion, whereupon Major Boone’s attorney withdrew from the case. The court then ordered the trial of the case to proceed against the absent defendant, and the jury thereupon (on the ex parle trial) returned a verdict in the amount of $11,000 against the defendant. Judgment in this amount was affirmed against the defendant by the high court of North Carolina and an appeal was perfected to the Supreme Court of the United States.
The Supreme Court of the United States, in affirming judgment against Major Boone, held that the Act cannot be construed to require a continuance on the mere showing that the defendant was in Washington in the military service. In reading the defendant’s affidavit for continuance, it will be noted that it does not state that the defendant in fact had applied to his Commanding Officer for leave to attend the trial or that, if he did so apply, his request for leave had been denied. The failure of the defendant’s affidavit to set forth these facts was regarded by the Court as significant. The Court cited the rule that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.”1
It will be noted that the Act makes no express provision as to who must carry the burden of showing that a party will or will not be prejudiced. The Supreme Court stated, “We, too, refrain from declaring any rigid doctrine of burden of proof in this matter, believing that courts called upon to use discretion will usually have enough sound sense to know from what direction their information shall be expected to come.”
Justice Black, in dissenting from the controlling majority opinion, observed:
The sole possible ground for the Court’s action, therefore, is that the defendant could have been present and, willfully taking advantage of the Act, chose instead to absent himself. In reaching this result the Court engages in precisely the speculation which I think the Act prohibits. The Court does not know, and the state court did not try to find out, whether Boone applied for a leave or “disclosed its urgency” to his superiors; it concludes that he did neither. . . . The Court does not know whether the petitioner truly owes the amount of the judgment against him; it must assume that he docs because of a proceeding conducted against him in his absence.
In conclusion, Justice Black comments:
I fear that today’s decision seriously limits the benefits Congress intended to provide in the Soldiers’ and Sailors’ Civil Relief Act. It apparently gives the Act a liberal construction for the benefit of creditors rather than for the benefit of soldiers. It places in trial judges an enormous discretion to determine from a distance whether a person in military service has exercised proper diligence to secure a leave, or whether it is best for the national defense that he make no application at all. These are questions on which the judiciary has no competence, since only the military authorities can know the answers.
It would appear from the import of the majority opinion in this decision that the safe procedure for any member of the armed services, who is a necessary party to a civil suit and whose interests are likely to be prejudiced because of inability to attend the trial because of military duties and who, after having applied for leave to attend the trial, has had the request for leave denied by his commanding officer, is to prepare and file with the Court an affidavit stating:
- His name, rank, and station
- His relationship to the suit
- The extent of his interests in the suit
- The harm or prejudice which might result to him in the event the suit is not continued in accordance with the provisions of the Soldiers’ and Sailors’ Civil Relief Act
- That he has disclosed the urgency of the case to his Commanding Officer
- That he has requested of his Commanding Officer that he be granted leave in order to enable him to attend the trial of the case
- That the Commanding Officer has refused to grant his request for leave to attend the trial.