Markowitz v. Carpenter

MOORE, P. J.

This is an appeal by defendant Carpenter from a judgment quieting title in plaintiffs to certain real property situated in Los Angeles County. The complaint alleged plaintiffs’ ownership of the lands, and the adverse claims of defendants and prayed that the latter be adjudged to have no interest therein. Appellant denied all allegations of the complaint and alleged “that plaintiffs are barred in the prosecution of this action . . . as provided in the Soldier’s Civil Relief Act of 1941 ... as this answering defendant is in the Military Service of the United States . . . Naval Reserve.”

Appellant did not appear at the trial although he was not on active duty as testified by his own attorney who objected to the introduction in evidence of the documents evidencing plaintiffs’ alleged ownership. This proof was offered to show

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title in plaintiffs by virtue of the usual tax deeds to the State of California resulting from a sale for delinquent taxes and a transfer by the state to the city of Santa Monica and its grant to plaintiffs. The specific objection raised was that the instruments had not been validly executed and acknowledged.

The court found that plaintiffs were the owners, that defendants had no right, title or interest in the lands and that appellant “is now a member of the United States Naval Reserve and is subject to active service but is not now in active service, and that the ability of said defendant Charles B. Carpenter, Jr. to conduct his defense to this action is not materially affected by reason of the fact that he is a member of the United States Naval Reserve. ’ ’ On these facts the court entered judgment for plaintiffs.

It is now contended as grounds for reversal that appellant’s military status inhibited entry of a judgment against him, and that the various conveyances to plaintiffs were invalidly executed and acknowledged.

Neither the pleadings, the evidence, nor the briefs on this appeal indicate in what manner appellant or the property involved come within the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940 [54 Stats. 1178, 50 U.S.C.A. App. § 501 et seq.]. (54 Stats. 1186, 50 U.S.C.A.App. § 560.) There is nothing in the record to indicate that as an inactive naval reservist, he was entitled to the protection of the Soldiers’ and Sailors’ Civil Relief Act of 1940. No authorities are cited and none has been found holding that a person in an inactive military status can claim the benefits of that act. Furthermore, the finding that appellant’s connection with the naval reserve did not affect his ability to defend the action is supported by testimony that Carpenter was in Los Angeles at the time of the trial.