
    NO. 7525.
    EUREKA HOMESTEAD SOCIETY VS WM. L. CLARK, JR.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
    
      
    
   OPIHIOH.

John St. PAUL, Juago.

Shis cobo involves the interpretation of Section 200 of the Act of Congress approved Harch 6th, 1918, entitled "An Aot to extend protection to the oivil rights of neuters of the Uilitary and Ifaval Establishments of the United states engaged in the present war," conaonly called the Uoratoxlna Act.

Por the purpose of this case It suffices to say (sinoe a judgment by default was taken herein without the filing ot affidavit) that the aot requires in substance that before a judgaent bjr default nay be taken against a defendant, the plaintiff shall by his affidavit show that suoh defendant is not in the uilitary service.

And the preoise question before us is whether a judgment rendered by default without the previous filing of suoh affidavit be abeolutely void in all oases or only voidalle if the defendant show that he was then in the military service and was prejudiced by such judgaent.

It sesos to us that a glance at the title of the act and a consideration of its purpose suffices to afford a solution of this question; sinos it is difficult to see how persona in the ailitary service would be protected against unjust oíalas if a plaintiff night by einply ignoring the aet and withholding the affidavit, take and execute his judgaent by default and thus relegate the soldier or sailor to an action to set it aside and an uncertain oíala for damages; long, expensive and doubtful in its prosecution; and difficult, perhaps impossible, of ezeeution.

Por on principle suoh would be the necessary consequence# If a judgaent so rendered were not void, but only voidable; wines that which is only voidable and not .void subsists as valid and produees its full oivil effects until sot aside. And the aet itself reeognises this when it deolaree at the verj end of the'seotion that "Taoatlns. settlnw aside, or reversing any judgment beoauae of any of the provisions of this act shall not impair any right or title acquired by any bona fide purchaser for value under such judgment."

Passing aside the very obvious faot that one oannot be considered strictly bona fide who fails to look for the required affidavit, it nay then be asked what is the meaning of the clause just quoted and the reason thereof, since It clearly provides for a case where the Judgment is only voidable but not void.

The answer is that it is only when the judgment has been taken bj£ default and no affidavit has been filed that' it is void; otherwise it is only voidable.

Por the act. provides that the plaintiff Shall file one of three affidavits; to-wit, that the defendant is not in the that military service, or that the defendant is in #$# servios,or that plaintiff is unable to determine whether the defendant be or be not in such servloe (either in faot or in law).

But in any case the court is allowed considerable discretion as to whether it will or will not proceed with the suit, and under what conditions, such as the appointing of an attorney to represent the defendant, requiring bond from the plaintiff, or the like. But in no case can judgment be rendered by default unless the affidavit Bhow affirmatively that the defendant la not in the service; otherwise there must be a hearing.

Or again the affidavit might be false in fact; or erroneous in law, whether Intentionally or otherwise, in spite of the severe penalty attaohed to the making of a false affidavit intentionally.

But in all such eases, although the defendant might yet be injured by the judgment, nevertheless the proceedings would be regular on their face and any irregularity therein would arise only from facts dehors the record. Hence such Judgments would be voidable only.

Bat where no affidavit whatever has been filed the irregularity of the Judgment is apparent on the face of the record, and the Judgment is then not only voidable, but void.

In so far as this applies to a person who at the tine was aotnally in the military service, it seems to us there can be ns doubt that a Judgment rendered as this one was is' a radieal nullity.

II.

But we think this is also true even as to a defendant who aotually was not in the military service at the time, for the reason;

Congress meant to' provide, and- ex industria did provide, that before any Judgment by default whatever be rendered, it should affirmatively appear from the record that the defendant was not in the military servioe.

That is to say, Congress meant ot protect those in the military servioe against the possibility of oppressive Judgments taken against them by default; but the mere right to set aside suoh Judgments and claim damages would not be adequate; henoe Congress must strike with nullity ab initio any Judgment by default whatever against them. But the only way to -do so effectively is to strike with nullity any Judgment by default against anyone whomsoever unless it were made to appear affirmatively that suoh person was not in the military servioe. Otherwise the burden of setting aside any suoh Judgment whioh might Inadvertently or otherwise be rendered against a person in the military servioe must fall upon suoh person, and in the meanwhile he might suffer irreparable damage; all of whioh was Just what the act meant to guard against.

In other words Congress in order to protect those in the military servioe meant to insist that no judgment be rendered by default against any person whomsoever without first ascertaining affirmatively that suoh para on was not in the Military serrloe. To that extent the la* la plainly prohibitory ami henoe what is done in oontrovention thereof is void.

May 1919.

III.

It is urged that taking this view of the Statute nay result In annulling a great nany judgments entered before the proTisiona of the law became known. It may be so. but with that we hare nothing to do sines we hare only to Interpret the- law as we understand It. At the same time we do not generally leap In the dark, and we feel satisfied that suoh fears are exagerated. It may be that judgments rendered by default and 7l& executed may hare to be Bet aside and rendered de noro, but In general where judgments rendered against persons not In the military serrloe, and working them no Injury, hare been soquiesoed in, or exeouted to the knowledge of and without objeotlon from suoh person, they will doubtless be allowed to stand as aocomplished facts whioh oan not be undone, upon principles of estoppel and public convenience.

IV.

the riew whioh we hare thus taken dispenses with our haring to oonsider either the admissibility of the affldsrit filed in this oourt by the appellee or the motion to expurge it from the reoord filed by the appellant.

The Judgment appealed from is therefore rerersed and set aside and the oaae is now remanded to the oourt a qua for further proceedings according to law.

Claiborne, J, recused.

Hew Orleans la,  