20 S.E.2d 618 | Ga. Ct. App. | 1942
1. A person in the military service is not entitled to a stay of a judgment against him as a matter of law under the provisions of the "Soldiers' and Sailors' Civil Relief Act of 1940" (
2. The defendant in error in the present case was endeavoring to enforce the collection of a valid and conclusive judgment against the plaintiff in error, who failed to state or show any reason for a stay or an abatement of the proceedings in question, except that he was a lieutenantcolonel in the United States army, and the record fails to show that the ability of the plaintiff in error to comply with the judgment was materially affected by reason of his military service. Under the law and the record as here presented, the court did not err in rendering the judgment complained of.
On September 2, 1941, the judge of the superior court passed the following order, staying the proceedings for thirty days: "The within petition is granted and the proceedings stayed and abated for thirty days from this date without prejudice as to further consideration and orders of this court." After the expiration of the thirty-day period during which the proceedings were stayed, the plaintiff in fi. fa. had the land which was levied on under the execution readvertised for sale on the first Tuesday in November, 1941, and the petitioner then renewed his motion for a further stay of the proceedings under the same petition as above set out, and the United States Fidelity Guaranty Company, the plaintiff in fi. fa., appeared and objected to a further stay of the proceedings and asked that the relief be denied and that the petition be dismissed, and filed an answer, which was sworn to, setting up certain reasons why no further relief should be granted the petitioner in this proceeding. It is stated in the bill of exceptions: "While the two cases were not consolidated, they were heard and tried together, and the court took both into consideration in reaching its judgment in each." The court passed the following order or judgment: "This motion being renewed, the same is denied, and not on account of any prior order. Costs to be taxed against movant." The applicant, C. F. Pope, excepted to that judgment. *417
It is contended by the plaintiff in error that he was entitled to a stay of the proceedings in question as a matter of law, under the Soldiers' and Sailors' Civil Relief Act of 1940 (Act October 17, 1940, c. 888, 54 Stat. 1178;
The only reason or fact alleged by the applicant in the petition *418 for a stay of the proceedings is that "Petitioner is the defendant in this execution and garnishment proceeding and is in the army of the United States and is a lieutenant-colonel in the 30th division serving at Fort Jackson, S.C., and is entitled to a suspension and abatement of these proceedings under the act of Congress known as the Soldiers' and Sailors' Relief Act of 1940 while he is in military service and for the period thereafter as provided by law. Petitioner has been in such service for approximately one year." The petition was not verified, and no evidence was offered in support of the application for a stay and abatement of the proceedings. However, the court granted the applicant a stay of the proceedings for thirty days when the petition was filed and first presented on September 2, 1941. After the expiration of the thirty-day period, when the applicant asked for a further stay of the proceedings under the same petition, the plaintiff in fi. fa. filed a verified answer in which it was alleged, among other things, that when the petition for a stay was first presented to the court the applicant, through his counsel, represented to the court that he only desired a little time to negotiate a settlement with the plaintiff on the judgment, but that he failed to make any effort to settle the judgment; that the applicant's wife filed a purported claim to the fund involved in the garnishment, but no approved bond was filed therewith, and the claim was void; that the proceedings on the part of the applicant and his wife are not in good faith, but made for the sole purpose of stalling and delaying the plaintiff in its effort to collect a valid and conclusive judgment rendered in the superior court of Laurens County, Georgia, on May 25, 1934, against C. F. Pope, as principal, and the United States Fidelity Guaranty Company, as surety on his bond as guardian of his niece, for an alleged defalcation of funds coming into his hands as such guardian, and that the surety company was forced to pay off said judgment of $2625 principal and took a transfer thereof; that applicant as a lieutenant-colonel in the United States army is drawing a large salary and subsistence allowances amounting to from $6000 to $7000 per year, and the prayer was that the applicant's motion be denied and no further stay of the proceedings be granted.
No brief of the evidence is mentioned or contained in the record, but the answer of the defendant in error was sworn to, and the bill of exceptions recited that the two cases were heard and tried together *419
and the court took both into consideration in reaching its judgment. This, together with the language used in the judgment complained of, is sufficient to authorize this court to conclude that the trial judge had enough before him on which to base an opinion in passing on the application for a stay of the proceedings here involved, and that he exercised a discretion in so doing. It is to be noted that section 203 of the Soldiers' and Sailors' Civil Relief Act of 1940 (
The defendant in error in the present case was endeavoring to enforce the collection of a valid and conclusive judgment against the plaintiff in error, who failed to state or show any reason for a stay or an abatement of the proceedings in question, except that he was a lieutenant-colonel in the United States army, and the record fails to show that the ability of the plaintiff in error to comply with the judgment was materially affected by reason of his military service. Under the law and the record as here presented, the court did not err in rendering the judgment complained of.
Judgment affirmed. Stephens, P. J., and Felton, J., concur.