
    210 A.2d 60.
    David N. Jones vs. Superior Court.
    MAY 11, 1965.
    Present: Condon, C. J., Roberts, Paolino, Powers and Joslin, JJ.
   Paolino, J.

This is a petition for a writ of certiorari to quash an order of the superior court in a cause entitled “Henry Moretti vs. David N. Junes, Alias,” Law No. 172564. The petition alleges that such order violates the petitioner’s rights under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 USCA App. §521. We issued the writ and granted a stay in accordance with the prayers in the petition. Pursuant thereto' the pertinent records have been certified to this court.

Section 521'reads as follows:

“Stay of proceedings where military service affects conduct thereof
“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 [sections 501-548 and. 560-590 of this Appendix], 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.”

Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, Kenneth P. Borden, for petitioner.

Pat Nero, for Henry Moretti.

At the .time we issued the writ and granted the stay petitioner’s counsel alleged that petitioner was,' in the service at the time of the hearing in the superior court and also at the time he filed the petition with us. We issued the writ on the basis of such representations and we continued the stay .and assigned the case for hearing in this court on January 15, 1965 with the understanding that he would secure evidence as to whether petitioner was still in the service.

In his oral argument before this court on January 15,1965 the petitioner’s counsel in effect stated that he did not know whether the ¡defendant was then in the service or whether he was in the service at the time of ¡the hearings in the superior court when the order he now challenges was entered. In the circumstances the Soldiers’ and Sailors’ Civil Relief Act is not applicable and .therefore the writ of certiorari was improvidently issued.

The petition for 'certiorari is denied and dismissed, the writ heretofore improvidently issued is quashed, and the records certified are ¡ordered returned to -the respondent superior court for further proceedings.  