Interinsurance Exchange of the Automobile Club v. Collins

Opinion

NOTT, J.

Appellant Interinsurance Exchange of the Automobile Club of Southern California filed a complaint for subrogation recovery against Matthew Joseph Collins.

1

Appellant submitted a request to enter default, which was rejected by the clerk of the court. The clerk informed counsel for appellant that the default could not be entered because the declaration of Mr. Collins’s nonmilitary status was not signed.

[1447]

A hearing was held at which the trial court advised counsel for appellant if the declaration was not signed the clerk could not enter the default and the matter would be dismissed.

On the next hearing date, the trial court continued the status hearing and sanctioned counsel for appellant $250 for reasons unexplained by the record. The case was dismissed soon after, and this appeal followed.

Discussion

Appellant contends that a declaration of nonmilitary status is not required to obtain a default. Appellant is correct.

The Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. Appen. §§501-591) requires: “In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff,

before entering judgment

shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. . . . If an affidavit is not filed showing that the defendant is not in the military service,

no judgment shall be entered

without first securing an order of court directing such entry .... Whenever . . . facts may be . . . established . . . by . . . declaration, ... the filing of such . . . declaration . . . shall satisfy the requirement. . . that facts be established by affidavit.” (50 U.S.C. Appen. § 520(1), italics added.)

The fundamental rule of statutory construction is that the court determine legislative intent to effectuate the purpose of the law.