136 F.2d 790 | D.C. Cir. | 1943
This appeal arose from a decision of the District Court, in a proceeding upon a petition by appellee for adoption of the infant daughter of appellant. The mother of the infant, formerly the wife of appellant, presently the wife of appellee, filed her consent to the adoptiofi. An application that the proceeding be stayed was filed on behalf of appellant. Several grounds were urged in the application, including: [1] that his ability to defend was seriously affected by reason of his military service; [2] that he intended to contest the allegations of the petition for adoption. The trial court denied the application, without findings or opinion. Section 201 of the Soldiers’ and Sailors’ Civil Relief Act of 1940
It is contended, in support of the trial court’s action, that appellant is not involved, within the meaning of the Act, either as plaintiff or defendant. In our opinion, the contention is without merit. The intention of Congress and the purpose of the statute require a liberal interpretation of the word defendant. Under such circumstances, we are not bound to apply the word in its narrow, formal sense.
It is contended, also, that appellant is not an indispensable party to the adoption proceeding. The Act does not speak in terms of indispensable parties. Presumably, one who is a proper party to a proceeding, and whose rights or interests may be affected by its determination, is entitled to the benefit of the Act. It is significant, in this respect, that the adoption law of the District of Columbia
We conclude that the language of the Soldiers’ and Sailors' Civil Relief Act of 1940 contemplated and included a proceeding such as the present one. It would be difficult to imagine a case in which the interests of a service-man would be more seriously affected than one calculated to deprive him of his child, and to make some other person, by act of law, a father in his place. His interests will be as seriously affected, by the determination reached in this proceeding, as they could possibly be in any proceeding which, pursuant to the chance of applicable rules, might require formal designation of parties as plaintiff and defendant. The implications of such a determination were succinctly stated by Justice Vinson, speaking for this court, in Barnes v. Paanakker:
As previously noted, the Act makes mandatory the staying of a proceeding, when application is made on behalf of one in military service, “ * * * ■wnless, 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.” [Italics supplied] This language made it the duty of the trial judge to inquire, and find, whether or not the ability of appellant, in the present case, to conduct his defense was materially affected by reason of his military service
Reversed.
54 Stat. 1178, 1181, 50 U.S.C.A. Appendix, § 521.
See Mason City & Ft. D. R. Co. v. Boynton, 204 U.S. 570, 579, 27 S.Ct. 321, 51 L.Ed. 629; Automobile Brokerage Corp. v. United States, 59 App.D.C. 243, 244, 39 F.2d 288, 289; In re Chicago, M., St. P. & P. R. Co., D.C., 50 F.2d 430, 434; Wallace v. Adams, 8 Cir., 143 P. 716, 728, affirmed 204 U.S. 415, 27 S.Ct. 363, 51 L.Ed. 547; Atlantic Mut. Ins. Co. v. Alexandre, D.C., 16 P. 279, 281; Malley v. Altman, 14 Wis. 22, 24, 26-27.
Boone v. Lightner, 63 S.Ct. 1223, 87 L.Ed. -, decided June 7, 1943: “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 calculations 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.” Royster v. Lederle, 6 Cir., 128 F.2d 197, 199.
See, for example, Tutun v. United States, 270 U.S. 568, 577, 46 S.Ct. 425, 427, 70 L.Ed. 738: “Whenever the law provides a remedy enforceable in the eourts according to the regular course of legal procedure, and that remedy is pursued, there arises a case within the meaning of the Constitution, whether the subject of the litigation be property or status. A petition for naturalization is clearly a proceeding of that character.” Bowers v. Now York & Albany Lighter-age Co., 273 U.S. 346, 349, 47 S.Ct. 389, 390, 71 L.Ed. 676: “There are two methods to compel payment. One is suit, a judicial proceeding; the other is distraint, an executive proceeding. The word ‘proceeding’ is aptly and commonly used to comprehend steps taken in pursuit of either. There is nothing in the language «a: context that indicates an
Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 349, 351, 352, ,47 S.Ct. 389, 71 L.Ed. 676; United States v. New Departure Mfg. Co., D.C., W.D.N.Y., 195 F. 778; Strom v. Montana Cent. Ry. Co., 81 Minn. 346, 84 N. W. 46, 47; State v. District Court of Lewis & Clarke County, 33 Mont. 138, 82 P. 789; Reyburn v. Handlan, 165 Mo. App. 412, 147 S.W. 846, 847.
D.C.Code (1940) § 16-201 et seq.
72 App.D.O. 39, 42, 111 F.2d 193,. 196.
Boone v. Lightner, 63 S.Ct. 1223, 87 L.Ed. —, decided June 7, 1943.
Stone v. Stone, — U.S.App.D.C. —,. 136 F.2d 761, decided May 24,1943; Walker v. Warner, 31 App.D.C. 76, 87; George v. Capital Traction Co., 54 App. D.C. 144, 147, 295 F. 965, 968.