The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 43
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HOWIE MINING CO. V. M'GARY
meant 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 judgment 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 detendant and protect his in-
terest 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, if 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 may 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."
If this construction contended for by defendants' attorney be true,
this act must inevitably have very sweeping, far-reaching effect, not
only during this period of the war, but for years thereafter; for it is
safe to say that in the inferior courts of the country many hundreds,
if not thousands, of judgments have been taken where the affidavit
has not been filed, all of which would become absolutely void. In
such case, it might be doubted whether the act could be maintained
as constitutional even as war-time legislation, but it is not deemed nec-
essary here to discuss that proposition. There are several reasons
why I do not regard it as applicable to this case:
First. By the terms of this section itself a question arises at once
as to what character of cases is meant by the words "default of an
appearance" by the defendant. There are a large number of cases
constantly brought in our courts by publication of notice or summons,
such as divorce cases in personam, or attachment cases in rem, where
no personal service is had upon a defendant, in which, however, the
courts are by law authorized to proceed to decree and judgment. This
statute in construction could very well be restricted in application
to such, for when one has been, in person, properly served with pro-
cess, he is presumed to be in court, and the legal obligation upon him
to appear and make his defense, if he has any and desires to do so,
becomes imperative. It can hardly be presumed that Congress intend-
ed that one, for instance, not in service, so served, and upon whom
such obligation in consequence rests, should, by reason of being even
afterwards called to service, be relieved of the instant legal obligation
upon him that he had theretofore incurred.
Second. Be this as it may, it seems clear that the terms of the act
should be construed together, with a view to ascertain the reasonable
purpose designed to be accomplished by it. It cannot be questioned
that it is exclusive in its terms, designed solely for the benefit of cer-
tain persons for the time being in certain defined classes of military
and naval service, their sureties, indorsers, and guarantors, and no
others. This is made very clear by the sections of article 1 of the
act; further, that it does not pretend to abrogate the contracts of such
persons, but only to suspend the enforcement thereof by legal proceed-
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38827/m1/57/?rotate=90: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.