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United States v. Simmons

United States District Court, E.D. Tennessee, Winchester Division
Dec 18, 1980
508 F. Supp. 552 (E.D. Tenn. 1980)

Summary

holding that "affiant's best information and belief," which sets forth no facts showing that the defendant is not in the military service, as is required by statute, is insufficient; denying motion for default judgment

Summary of this case from Fischer v. Hoch (In re Hoch)

Opinion

No. CIV-4-80-13.

December 18, 1980.

John H. Cary, U.S. Atty., Knoxville, Tenn. by John C. Littleton, Asst. U.S. Atty., Chattanooga, Tenn., for plaintiff.


MEMORANDUM OPINION


The plaintiff moved the Court for a judgment by default herein. Rule 55(b)(1), Federal Rules of Civil Procedure. "* * * [N]o judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. * * *" Idem. "* * * 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 the military service. * * *" 50 U.S.C.App. § 520(1).

An assistant United States attorney filed an affidavit that no person having a right or possible claim of right herein is in the military service. It makes no reference specifically to whether either "defendant" is in the military service, as required by the afore-quoted Soldiers' and Sailors' Civil Relief Act of 1940, supra; it alludes only to "* * * the affiant's best information and belief * * *" and sets forth no facts "* * * showing that the defendant is not in the military service * * *," as also required by such statute; and it contains not the slightest hint as to upon what fact(s) the affiant's stated "* * * best information and belief * * *" were acquired.

Where facts must be set forth, an affidavit made upon information and belief is insufficient. Automatic R. Mfg. Co. v. Hazeltine Research (1950), 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312, 1317 (headnote 2), (stating the rule with respect to affidavits submitted under Rule 56(e)), Federal Rules of Civil Procedure.

As was said by our Court of Appeals in a different context: "* * * [T]he Soldiers' and Sailors' Civil Relief Act means exactly what is says * * *," Ray v. Porter, C.A.6th (1972), 464 F.2d 452, 456. Therefore, the application of the plaintiff for entry of a judgment by default herein cannot be granted on the present record.


Summaries of

United States v. Simmons

United States District Court, E.D. Tennessee, Winchester Division
Dec 18, 1980
508 F. Supp. 552 (E.D. Tenn. 1980)

holding that "affiant's best information and belief," which sets forth no facts showing that the defendant is not in the military service, as is required by statute, is insufficient; denying motion for default judgment

Summary of this case from Fischer v. Hoch (In re Hoch)

denying the plaintiff's motion for a default judgment because the plaintiff failed to provide a sufficient affidavit showing that the debtor was not in military service

Summary of this case from First Bank Puerto Rico v. Lockhart

denying the plaintiff's motion for a default judgment because the plaintiff failed to provide a sufficient affidavit showing that the defendant was not in military service

Summary of this case from Nunez v. Lovell

denying the plaintiff's motion for a default judgment because the plaintiff failed to provide a sufficient affidavit showing that the debtor was not in military service

Summary of this case from BANK OF NOVA SCOTIA v. JAMES

denying the plaintiff's motion for a default judgment because the plaintiff failed to provide a sufficient affidavit showing that the debtor was not in military service

Summary of this case from U.S. Dept. of Agriculture Rural Housing Serv. v. Monsanto

denying the plaintiff's motion for a default judgment because the plaintiff failed to provide a sufficient affidavit showing that the debtor was not in military service

Summary of this case from U.S. Dep. of Agriculture Rural Housing Serv. v. Monsanto

denying the plaintiff's motion for a default judgment because the plaintiff failed to provide a sufficient affidavit showing that the debtor was not in military service

Summary of this case from BANK OF NOVA SCOTIA v. BROWN

interpreting 50 App. U.S.C. § 520, predecessor to 50 App. U.S.C. § 521(b)

Summary of this case from BOARD OF TRUSTEES v. WOON
Case details for

United States v. Simmons

Case Details

Full title:UNITED STATES of America, Plaintiff, v. Jessie C. SIMMONS et ux.…

Court:United States District Court, E.D. Tennessee, Winchester Division

Date published: Dec 18, 1980

Citations

508 F. Supp. 552 (E.D. Tenn. 1980)

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