Lavender v. Gernhart

Markell, C. J., delivered the opinion of the Court. This is an appeal from an order postponing, pursuant to the Soldiers’ and Saliors’ Civil Relief Act of 1940, 50 U. S. C. A. Appendix, § 501 et seq., during the period of the military service of one of the caveatees, the trial of issues sent to a court of law on a caveat to a will. The issues from the Orphans’ Court were filed on November 20, 1951. On January 10, 1952 a petition of an attorney, on behalf of Franklyn Joseph Donnelly, a minor, was filed, alleging, inter alia, that Donnelly “is presently in the military service and has been for some time past”; that he is a caveatee and “has an important and substantial financial interest which will require his presence in * * * Baltimore for aid in the preparation, defense and trial of the * * * caveat, and he is presently unable, because of his military service, properly and adequately to defend his interests in and to the * * * will”, and praying postponement “as provided for in the Soldiers’ and Sailors’ Relief Act”.

After an answer and hearing the court signed the order for postponement on March 31, 1952. The Soldiers’ and Sailors’ Relief Act provides, inter alia, “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, dur ⁹⁴ ing 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.” 50 App. U. S. C. A. § 521. This identical provision is contained in the Maryland act, supplemental to the Act of Congress.

Code of 1951, Art. 87A, sec. 5(5). Appellants urge that the Act “does not apply to caveat proceedings”. In McLaughlin v. McLaughlin, 186 Md. 165, 171 , 46 A. 2d 307, 309 , we said, “In Maryland probate of a will in common form is not a judgment, action or proceeding against any of the next of kin. No notice to anyone is necessary if one or more of the next relations attends and no objection or caveat is made.” Manifestly this is not true of trial of issues on a caveat. “Any action or proceeding in any court” includes everything, inter alia, probate proceedings; “Either as plaintiff or defendant” includes any one of the opposing parties, whether called plaintiff, complainant, libellant, defendant, respondent or by any other name.

Appellants also urge that (if the Act is applicable at all) the Orphans’ Court, and not the court of law, has jurisdiction under it. The court to postpone a trial of issues is ordinarily the court in which the issues are to be tried. If we