Pierrard v. Hoch , 97 Or. 71 ( 1920 )

BENSON, J.

Defendant Hoch bases his dissatisfaction with the conduct of the trial court, upon its action in proceeding with the suit in disregard of the provisions of Chapter 275, General Laws of Oregon for 1917. This act reads as follows:

“No suit or action shall be commenced or maintained, during the period hereinafter provided for, to foreclose any mortgage upon real property, or to collect the debt secured thereby, if the land covered by the mortgage be owned, wholly or in part, by an enlisted man in the Army or Navy of the United States, who shall have enlisted therein in the volunteer forces or who shall have been enlisted in the National Guard of the United States and of the State of Oregon and his organization called into the service of the United States; and the lands of any such soldier or sailor shall be exempt from judicial sale for _ the satisfaction of any judgment during the period hereinafter provided for; provided, that this moratorium shall extend only during the period of actual service in the army or navy forces of the United States, and in no case shall begin prior to the day on which the Congress of the United States shall declare war, nor continue after sixty days subsequent to the conclusion of such war; provided, that all statutes of limitation in effect in the State of Oregon shall be suspended during the period above described, as to the mortgages, debts and judgments in this Act described.”

Defendant insists that this statute deprives the court of jurisdiction to entertain this suit so long as the defendant Guyer continues in the service of the United States Army, and that upon the disclosure of the facts, the court should have dismissed or continued the cause. It may here be noted that the complaint alleges that the defendant Guyer is in the military service of the United States, having enlisted on July 6, 1917, and it is stipulated that such enlistment was in the volunteer forces of the United States.

An examination of the U. S. Compiled Statutes, 1918, Sections 1891a and 2026a, discloses that the term of such enlistment is three years, or a less time if the war shall sooner be terminated.

Plaintiffs present two reasons for the disregard of the act of the state legislature of 1917: 1. That it was superseded or suspended by the act of Congress of March 8, 1918, known as the Soldiers’ and Sailors’ Civil Belief, which undertakes to cover the same ground; and 2. That the act is unconstitutional, in that it impairs the obligation of a contract.

1. Regarding the first of these contentions, it may be remarked that counsel have not favored us with any citations of authority upon the question, and it is difficult to conceive of a federal act possessing superiority to state legislation upon the subject of remedies and procedure in state courts.

The important question for our consideration is this: Does Chapter 275, Laws of 1917, impair the obligations of contracts? During our Civil War of 1861-1865, a number of the state legislatures enacted similar stay laws, and we have examined the cases arising thereunder with deep interest. The Pennsylvania Act was as follows:

“No civil process shall issue or be enforced against any person mustered into the service of this state, or of the United States, during the term for which he shall be engaged in such service, nor until thirty days after he shall have been discharged therefrom: Provided, That the operation of all statutes of limitation shall be suspended upon all claims against such person during such term.”

Under the act, in the case of Breitenbach v. Bush, 44 Pa. St. 313 (84 Am. Dec. 442), the Supreme Court of Pennsylvania, speaking by Mr. Justice Woodward, gives us an exhaustive and well-considered discussion of the subject, in which are collated and reviewed all of the leading and important authorities which might aid in a satisfactory solution of the problem. Then, as now, the federal statutes fixed the term of enlistment of volunteers at three years, or for a less time if the war was sooner ended. There, as here, it was urged that the act .violated the constitutional inhibition upon the states, to impair by law the obligation of contracts. The conclusion in that case is to the effect that such stay of proceedings is permissible and valid if for a time that is definite and not unreasonable, but void if for an indefinite time, or for a time that is unreasonable. It is further considered that the term of enlistment being fixed at three years, or a possibly shorter time, it was not unreasonable, considered in the light of existing circumstances. After reviewing the condition of war which then prevailed, the learned jurist continues:

“Now, if a stay of execution for three years would not be tolerated in ordinary times, did not these circumstances constitute an emergency that justified the pushing of legislation to the extremest limit of the Constitution? No citizen could be blamed for volunteering. He was invoked to do so by appeals as strong as his love _ of country. In the nature of things there is nothing unreasonable in exempting a soldier’s property from execution whilst he is absent from home battling for the supremacy of the Constitution and the integrity of the Union. And when he has not run before he was sent, but has yielded himself up to the call of his country, his self-sacrificing patriotism pleads, trumpet-tongued, for all the indulgence from his creditors which the legislature has •power to grant. If the term of indulgence seems long in this instance, it was not longer than the time for which the President and Congress demanded the soldiers’ services. It was not for him, nor is it for us to rejudge the discretion of the President and Congress in this regard. Basing ourselves on what they did, constitutionally, the question for us is, whether the stay granted by our own legislature to our citizen soldiers was unreasonable. In view of the extraordinary circumstances of the case, we cannot pronounce it unreasonable. We see in it no wanton or careless disregard of the obligation of contracts, but only a sincere effort to enable the general government to prosecute with success a war which, in its exclusive right of judgment, it resolved to wage.”

2. All that is said about existing conditions at the time when the statute was enacted, and what is said about the reasonableness of the suspension of the remedy in that case, is equally true and impressive in the consideration of the case at bar, and demands no elaboration at our hands. The doctrine of this opinion is supported by the following citations: Bruns v. Crawford, 34 Mo. 330; Johnson v. Higgins, 3 Metc. (Ky.) 566; Barkley v. Glover, 4 Metc. (Ky.) 44; Wolfkiel v. Mason, 16 Abb. Pr. (N. Y.) 221; McCormick v. Rusch, 15 Iowa, 127 (83 Am. Dec. 401); Edmondson v. Ferguson, 11 Mo. 344; Lindsey v. Burbridge, 11 Mo. 545; Coxe’s Executor v. Martin, 44 Pa. St. 322.

3. We conclude, therefore, that the trial court was without jurisdiction to enter any decree at the time when it undertook to do so. This view renders it unnecessary to consider any other assignment of error.

The decree is reversed, and the cause will be remanded for further proceedings not inconsistent herewith. Reversed and Remanded.

Former opinion set aside and deeree of lower court affirmed July 20., 1920.

Mr. John, W. Kaste for appellants Pierrard. Mr. J. M. Haddock and Mr. Louis H. Tarpley for defendant Hoch.