Piper v. Aldrich

Eagg, Judge, delivered tlie opinion of the court. In the examination of this case, we shall confine ourselves exclusively to the points raised by the brief of appellant’s counsel, there being no appearance for the respondent. At the spring term, 1864, of the Webster Circuit Court a suit was instituted by Piper against Aldrich upon a promissory note. Service was obtained by leaving a copy of the petition and writ at the usual place of abode of the defendant with a white member of his family over the age of fifteen years. No appearance was entered for the defendant Aldrich at the return term of the writ, and the plaintiff prosecuted his suit to a final judgment. At the spring term, 1866, the defendant appeared by his attorney and filed a motion alleging that at the time of the commencement of the suit, as well as the rendition of the judgment against him, he was in the actual military service of the State and of the United States. The court was thereupon asked to set aside the judgment, and also to quash an execution that had been issued thereon. The motion was sustained and a judgment rendered in favor of the defendant for costs. It is insisted that the provisions of the act of 1861, enlarged and extended by the act of 1863, under which this proceeding was had, cannot be so construed as to entitle the respondent to the relief granted.by the Circuit Court; that the intention of the Legislature was simply to confer upon persons in actual military service a privilege, which, if not properly pleaded, must after judgment be taken to have been waived. In the case of Bruns v. Crawford, 34 Mo. 330, it was held by this court that upon proof made by defendant of his being in military service at the time suit was instituted against him, it was sufficient to authorize the court below to dismiss the cause. A different interpretation, however, was given to this statute in the case of Donnell v. Stephens, 35 Mo. 441. The proper meaning and effect of the act was in that case declared to be not to prohibit the bringing of suits against persons thus engaged in military service, but to make that fact [424] a sufficient ground for a continuance of the cause. Whilst we concur in this construction of the act, we do not believe that the conclusion reached by the appellant’s counsel necessarily follows. In the case last cited the defendant appeared in obedience to the writ, and moved the court to dismiss the suit upon the ground that he was in the military service. This motion was sustained by the court below, in conformity with the opinion given by this court in the case of Bruns v. Crawford. In reversing the judgment of the Circuit Court, however, there was no intimation given to the effect that if this fact was not pleaded before judgment, it must be taken to have been waived by the defendant. The court very properly held that the Legislature did not intend to permit the courts of the State to sit in judgment upon the rights and property of persons whose time and services belonged exclusively to the government, and who for that reason were unable to devote any attention whatever to their private affairs. From the very nature of the case this provision of the law cannot be considered as a privilege merely, the benefit or loss of which is made to depend upon the act of the soldier himself.” It would be the merest mockery to place a person in military service and take him hundreds of miles away from his home, and tell him to rest secure in reference to any suits that might be commenced against him in his absence, because the Legislature had passed a law permitting him to appear and plead the fact of his service, and that would be sufficient to authorize a continuance of the cause. If, however, for any reason he should fail to appear and set up that fact, he must lose all the protection which the act could give him. We conclude that there was something substantial in tlie protection which the law-making power intended to give to this class of persons, and that it was not a mere shadow under which their property might be taken from them, without an opportunity of defending their rights in the premises. In other words, the act intended to place a prohibition upon [425] the plaintiff himself, by which he should be precluded from deriving any benefit from the suit except to prevent the statute of limitations from barring his cause of action. If his suit should be commenced after the defendant had entered the military service and before the end of the twelve months after the expiration thereof, the law intended that he should not prosecute it any further. In this case, however, the plaintiff, in violation of the true spirit and intent of the act, had obtained a judgment, and there is no way by which that intent could be effectuated except by setting the judgment aside. Under this view of the law, it is wholly immaterial whether the respondent had a good defence to the action or not. The plaintiff had obtained something to which he was really not entitled, and it makes no difference that it was secured under the forms of law. Having proceeded in violation of the express prohibition of the statute, he should not be permitted to reap the benefits of his own wrong. No other remedy could have been given to the defendant, and the court committed no error in sustaining the motion. The judgment will be affirmed. The other judges concur.