BOONE v. LIGHTNER ET AL.
No. 698
Supreme Court of the United States
Argued May 3, 4, 1943. - Decided June 7, 1943.
319 U.S. 561
Mr. M. R. McCown for respondents.
MR. JUSTICE JACKSON delivered the opinion of the Court.
The federal question in this case is whether a stay of proceedings against a defendant in military service has been refused under circumstances which denied rights given by the Soldiers’ and Sailors’ Civil Relief Act of 1940. The controversy in which he was engaged is for state courts to settle, and we deal with the facts only as they relate to this federal question.
The petitioner Boone was summoned into a state court in North Carolina in an action to require him to account as trustee of a fund for his minor daughter, to remove him as trustee, to surcharge his accounts for losses caused by
Boone‘s mother-in-law, by will of which he was executor and trustee, created a trust fund for the education of her grandchildren, including one child of Boone‘s. Shortly after her death, and in September, 1938, another child was born to him. Since this child was unprovided for in the will, the father-in-law made arrangements which upon his death put into Boone‘s hands a fund of about $15,000. It is conceded that the fund was a trust for the benefit of the daughter. There was controversy whether it was governed, as Boone claimed, by a letter signed by the father-in-law which placed no restriction on his discretion; or, as Mrs. Boone, who has been sustained by the courts of North Carolina, claimed, by the same conditions as the testamentary trust set up by her mother. For our purposes it is enough that it was admittedly a trust and that grounds were alleged sufficient to move the state court to require an accounting.
The summons and complaint were served on Boone personally in North Carolina on June 23, 1941. He was then in military service of the United States as a Captain stationed in the office of the Under Secretary of War in Washington.
Boone filed a verified answer denying the jurisdiction of the court, claiming that on June 23, 1941, the same day the summons was served, he changed his “domicile and legal residence” to Washington, D. C., and his daughter‘s as well. He admitted receipt of the fund in trust, asserted the trust was governed by the letter referred to, and pleaded that he “is not bound to report to any Court.” He denied all charges of misconduct of the fund, denied that there were grounds for apprehension that the funds were unsafe, and asserted that “he has exercised at all times good faith in caring for this fund.” He also stated
On February 2, 1942, the cause came on for hearing. Boone moved for a continuance to the 25th of May, 1942, his counsel, Roy L. Deal, stating that he expected soon to be called into service and would be unable to try the case, and asking the continuance in order to give defendant ample time to employ other counsel. The request was granted, and that date peremptorily set for the trial. The court forbade transfer of securities constituting the trust and required that on the trial date they and any funds of the trust be turned over to the Clerk of the Court to abide further orders. Its order admonished that the court would at the earliest practical date ascertain the status of the trust fund and that the presence of Boone himself at the trial “is highly desirable,” but left to the discretion of Boone and his counsel whether it was necessary. In order, however, to advise defendant Boone and his superior officers of the importance of the litigation, the court directed that a certified copy of the order be sent to The Adjutant General of the United States Army at Washington.
When the trial day came, Boone invoked the Soldiers’ and Sailors’ Civil Relief Act of 1940, and demanded that the trial be continued until after the termination of his service in the Army or until “such time as he can properly conduct his defense.” At this time there were before the trial court not only the pleadings and the affidavits submitted by Boone and his counsel but also certain depo
Boone then appealed to the Supreme Court of North Carolina, on the merits as well as on denial of the continuance, and that court affirmed. 222 N. C. 205, 22 S. E. 2d 426. As the decision below presented an important question of construction of the Act, we granted certiorari.
The section of the Soldiers’ and Sailors’ Civil Relief Act of 1940 principally invoked is § 201,1 which 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 prose-
cute the action or the defendant to conduct his defense is not materially affected by reason of his military service.”
The positions urged by petitioner come to these: first, that defendant‘s military service in Washington rendered a continuance mandatory; second, if not mandatory, that the burden of showing that he could attend or would not be prejudiced by his absence was not on him, but on those who would force the proceedings; third, that the court did not make the finding required by the Act for denial of a stay; and last, that in any view of the law the trial judge abused his discretion in this case. The petition raises other questions, including the constitutional one as to whether he has been denied due process of law, which we do not discuss because in the light of the facts of the case they are frivolous.
1. 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.”
The Act of 1940 was a substantial reënactment of that of 1918. The legislative history of its antecedent shows that this clause was deliberately chosen and that judicial discretion thereby conferred on the trial court instead of rigid and undiscriminating suspension of civil proceedings was the very heart of the policy of the Act.2 While this Court
Reënacted against this background without reconsider-ation of the question beyond a statement in the Senate Committee Report that “There are adequate safeguards incorporated in the bill to prevent any person from taking undue advantage” of its provisions,4 we are unable to ig-nore or sterilize the clause which plainly vests judicial dis-cretion in the trial court.
2. The Act makes no express provision as to who must carry the burden of showing that a party will or will not be prejudiced, in pursuance no doubt of its policy of mak-ing the law flexible to meet the great variety of situations no legislator and no court is wise enough to foresee. 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 should be ex-pected to come. One case may turn on an issue of fact as to which the party is an important witness, where it only appears that he is in service at a remote place or at a place unknown. The next may involve an accident caused by one of his family using his car with his permission, which he did not witness, and as to which he is fully covered by insurance. Such a nominal defendant‘s absence in mili-tary service in Washington might be urged by the insurance company, the real defendant, as ground for deferring trial until after the war. To say that the mere fact of a party‘s military service has the same significance on burden of per-
In the present case, whoever might have had the burden originally, the continuance was finally denied upon a record which disclosed the facts so far as either party saw fit to do so. The defendant and his counsel submitted affidavits and the depositions and accounts before the court revealed facts relevant to the issue.
Whether, if the court knew only the existence of this complicated controversy and that the defendant was ab-sent in military service, it could have cast upon the de-fendant the burden of showing that the litigation could not go ahead without prejudice to him, is not before us. The court made no such ruling. The defendant appeared, he pleaded his defense, he took depositions showing fully what had happened to the fund, and he supplied his own affidavit showing where he was and what he was doing. Regardless of whether defendant was under a duty to make a disclosure of his situation, once he undertook to do so, the significance alike of what his affidavit said and of what it omitted was to be judged by ordinary tests. One of these is that “all evidence is to be weighed according to the proof which it was in the power of one side to have pro-duced and in the power of the other side to have contra-dicted.” Cooper v. Dasher, 290 U.S. 106, 109. The trial court and the Supreme Court of North Carolina did just this. They did not deny his stay because he failed to meet their ideas of burden; they weighed the evidence he offered and found its conclusions discredited by its avoidance of supporting facts within his knowledge and not within that
3. Some question is raised as to whether the findings of the trial court meet the requirements of the Act. In the order denying the continuance it found as a fact that “the defendant in this cause is deliberately and wilfully at-tempting to evade an ultimate determination of the issues involved in the litigation entitled as above, and is exercis-ing his assumed right under the Act referred to above to avoid such determination.” It also found the defendant “is not upon the motion for continuance acting in good faith.” In the final judgment the court found as a fact “that the defendant has had ample time and opportunity to properly prepare his defense in this case and that his military service has not prevented him from doing this.” It found that “defendant had full opportunity to prepare and put in his defense if he had one,” and that “It is apparent that he has only sought to use the provisions of the Soldiers’ and Sailors’ Civil Relief Act as a shield for his wrong doing, and this Court, who once wore a U. S. uni-form with pride, does not intend for this to be done.”
Of course this is not a finding in the words of the statute that the ability of the defendant “to conduct his defense is not materially affected by reason of his military service,” but there is no doubt that it was intended to be in sub-stance the equivalent. It was so treated by the Supreme Court of North Carolina and to send the case back for further findings seems unwarranted. The Act does not expressly require findings. It is one intended to apply to courts not of record as well as those of record, and it re-quires only that the court be of opinion that ability to defend is not materially affected by military service. We
4. The final question is whether the evidence sufficiently supports the opinion or whether the order constitutes an abuse of discretion.
We think the opinion of the court that Boone‘s mili-tary service did not prevent him from being present and doing whatever could have been done by way of defense finds ample support in the evidence. Boone had been able to get away from Washington to go to New York for the taking of depositions on two separate occasions. He had long notice of the trial date and the court had placed in the files of his Department its order showing the desirability of his presence at that time. Boone, be-ing a lawyer and presumably knowing the gravity of the accusations against him, might be expected to make some move to get leave to be present. If it were denied, he might be expected to expose every circumstance of his effort to the court in his plea for continuance. Boone‘s affidavit, after reciting that he was assigned to the Inter-national Division, Headquarters, Services of Supply, Washington, D. C., says “The work in said Division is very heavy, and full time and some extra time are re-quired of all officers in said Division, including the defend-ant. Prior to the declaration of War on Dec. 8, 1941 the work in this Division was very heavy, but since the decla-ration of War the volume of work has been greatly in-creased. No leaves whatever have been granted, except in cases of serious emergency.”
Most lawyers trained in the equity tradition of trus-tee fidelity would regard a trial of this kind as a serious emergency. Did he apply for a leave at all? The affi-davit pretty clearly implied that he had not. We think the court had ample grounds for the opinion that Boone
There was likewise support for the opinion that the failure to be represented by counsel did not result from Boone‘s military service. On February 2, 1942, the court granted his request for a continuance and set the case for trial on May 25, 1942. It was stated to the court that counsel then acting for him was expecting to be called immediately into military service, and it would be neces-sary for defendant to procure additional counsel. Never-theless, when the trial date arrived, the fact that this counsel had gone into service on May 13, 1942, was urged as a reason for further postponement. No showing what-ever was made as to any effort to obtain other counsel in the long interval allowed by the court for the purpose. This counsel was also stationed at Washington and said he “would not assume to ask for leave at the present time, so soon after having reported for duty.”
On the trial date defendant was nevertheless repre-sented in court by local counsel. That counsel however was consulted only three or four days before the trial date and was employed for the sole purpose of making the motion for continuance, and when the court ruled on it he withdrew and declined to proceed further. The defend-ant‘s accounts presented to the trial judge showed dis-bursements since the beginning of the action and before trial for the following matters, among others, in connec-tion with this case: On August 15, 1941, defendant‘s depo-sition was taken at Washington, D. C. This entailed a reporter‘s fee of $66.00 and a fee of $248.88 paid a Detroit attorney for appearing at the proceeding. On November 3 and 5, 1941, depositions were taken in New York City with the defendant present. These involved a court re-porter‘s fee of $32.25, and fees in the amount of $375.00
At all times since the action began defendant has also been represented by counsel from Detroit, Michigan. His inability to appear on the trial date was explained on the ground that he was “definitely engaged at the present time in the trial of cases at Detroit which will require his pres-ence in Court there for approximately thirty days.” No affidavit from this counsel was produced, and no explana-tion is made as to how it came that other “cases” were given priority over this in view of the long notice of the trial date and its importance to the client.
In this Court, Boone is represented by his Detroit coun-sel and by Deal, the lawyer who withdrew from the case to accept a commission in Washington. Besides these, there also appear four other lawyers, none of whom are included in the five who have represented him at previous stages in the case.
In addition to the facts presented to the trial court which we have recited, the trial court apparently con-sidered matters not of record in this case, but of which he took judicial notice. He recites that “the motion to continue is made after the defendant‘s refusal in one or more instances arising out of litigation respecting the
The court was dealing not only with an individual but with a trustee, one charged with default in his duty, and with a fund which was said to be in jeopardy. Defend-ant in spite of his military service in Washington was continuing to administer the fund. The defendant was a member of the bar, and the charges struck at his honor as well as at his judgment. Instead of seeking the first competent forum and the earliest possible day to lay his accounts out for vindication, he sought to escape the forum and postpone the day. He was both present and represented by counsel when depositions were taken which establish his speculation with the trust funds in his personal margin account. We think the record am-ply supports the conclusion of the trial judge that the claim that military service would prejudice the conduct of his defense, was groundless, and that the absence of himself and all of his numerous and not uncompensated counsel on the day of judgment was dictated wholly by litigious strategy.
The Soldiers’ and Sailors’ Civil Relief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation. The discretion that is vested in trial courts to that end is not to be withheld on nice calcula-tions as to whether prejudice may result from absence, or absence result from the service. Absence when one‘s rights or liabilities are being adjudged is usually prima facie prejudicial. But in some few cases absence may be a policy, instead of the result of military service, and dis-cretion is vested in the courts to see that the immunities of the Act are not put to such unworthy use.
Affirmed.
The petitioner is a soldier who was on duty in Washing-ton throughout the course of the litigation in North Caro-lina of this action against him. He duly claimed the pro-tection of the Soldiers’ and Sailors’ Civil Relief Act of 1940, and rests upon it here. I think he should prevail.
The relevant statutory provision before us may be sum-marized as follows: Actions brought against a person in military service shall be stayed upon application of that person “unless, in the opinion of the court, the ability of . . . the defendant to conduct his defense is not materially affected by reason of his military service.”
The statutory language has no legislative history and has not previously been interpreted by this Court. The elaborate legislative history set forth by the Court is a his-tory of a clause which was stricken from the 1917 Act, which is not before us now, and which, on its face, has a meaning wholly different from the clause under construc-tion.1 Hence the problem is a narrow one of analysis of the words of the statute itself.
I believe that the clause under consideration requires that an action against a person in military service must be
In my opinion, none of these conditions are met here. Although the action began as a proceeding to preserve the trust estate, which was quite proper, it terminated with a personal judgment against the petitioner for $11,000 after a trial by jury of many disputed facts. The peti-tioner was obviously not merely a formal party. One issue in the case was whether he had dissipated trust funds, and for such an inquiry his presence to hear the evidence against him was essential to his interests and his own testimony was, in the words of the trial court, “highly desirable.”
The sole possible ground for the Court‘s action, there-fore, is that the defendant could have been present and, wilfully 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 pro-hibits. 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 Boone attempted to find new counsel; it assumes that he did not. The Court does not know why Boone chose to participate in certain other law suits against him conducted simul-taneously with this one; it assumes that the others were less important than this case. The Court can not know
The Court emphasizes that Boone is a member of the bar. But, for the duration of the war, he is primarily a soldier, with a job to do which Congress intended should overshadow personal interests, whether his or those of others who seek a personal judgment against him. It is difficult for me to believe that he could adequately have prepared for this trial without a leave of many weeks. The purpose of the Act is to prevent soldiers and sailors from being harassed by civil litigation “in order to enable such persons to devote their entire energy to the defense needs of the Nation.” § 100. He is required to devote himself to serious business, and should not be asked either to attempt to convince his superior officers of the im-portance of his private affairs or to spend his time hunt-ing for lawyers.
The trial court should, at the very least, have inquired of the appropriate military authorities whether the peti-tioner could be granted ample leave to prepare his defense and be present for trial. If the Act does not require this, it serves little purpose. It may be argued that this petitioner, a man of knowledge and experience, is as com-petent to ask his superior officer for leave as is the trial court; but the argument fails because the policy set here, no matter how many qualifications the Court tries to work into it, will shoot far beyond the confines of this case. In the course of the war, numerous actions will be brought against soldiers who have never heard of this Act and have no notion that this Court might want them to apply to
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 enor-mous 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.