The United States Supreme Court has said: "Absence when one's rights or liabilities are being adjudged is usually prima facie prejudicial." Boone v. Lightner, 319 U.S. 561, 575 (1942); Smith v. Smith, 222 Ga. 246 ( 149 S.E.2d 468) (1966). In Lankford v. Milhollin, 197 Ga. 227, 234 ( 28 S.E.2d 752) (1944), this court held that "[t]he language of the act does not authorize a construction which would place upon the applicant the burden of proving that his ability to prosecute or defend the action is materially impaired."
See also Brown v. Brown, 89 Ga. App. 428 ( 80 S.E.2d 2) (1953). This is not to say that discretion is removed from the trial court when a party seeks interlocutory relief. See Smith v. Smith, 222 Ga. 246 ( 149 S.E.2d 468) (1966) (error to deny stay and enter judgment for temporary alimony). In Smith, the serviceman submitted evidence that he could not leave his duty station because of extensive training in North Carolina in preparation for his pending transfer to Viet Nam. His commanding officer, by affidavit, also testified that the serviceman would not be able to attend the hearing on the motions for temporary alimony and for a stay.
Id. at 467. Accordingly on the record now before us, we must conclude that the court abused its discretion in denying the application for a stay pursuant to the Soldiers' Sailors' Civil Relief Act. Smith v. Smith, 222 Ga. 246, 247 ( 149 S.E.2d 468). Further as we also find that Allen was prejudiced by his absence from the trial, Saborit v. Welch, 108 Ga. App. 611, 613 ( 133 S.E.2d 921), the judgment of the trial court must be reversed. 2.
"`Under the Soldiers' and Sailors' Civil Relief Act, a person in military service is entitled as a matter of law to a stay of any proceeding by or against him in a case to which the statute is applicable, upon his bare application showing that he is in the military service, unless it is made to appear by further relevant evidence that his ability to prosecute or defend the proceeding is not materially impaired by reason of his military service.' Lankford v. Milhollin, 197 Ga. 227 ( 28 S.E.2d 752)." Smith v. Smith, 222 Ga. 246 (2), 247 ( 149 S.E.2d 468). Accord, Gates v. Gates, 197 Ga. 11 ( 28 S.E.2d 108); Parker v. Parker, 207 Ga. 588 (2) ( 63 S.E.2d 366); Saborit v. Welch, 108 Ga. App. 611, 615 ( 133 S.E.2d 921); Mays v. Tharpe Brooks, Inc., 143 Ga. App. 815, 818 ( 240 S.E.2d 159).
The Municipal Court of Columbus erred in overruling defendant's motion to set aside the judgment in this case. See also Smith v. Rodgers, 57 Ga. App. 237 ( 194 S.E. 884); Nix v. Davis, 106 Ga. App. 206 ( 126 S.E.2d 467); Williams v. Russell, 82 Ga. App. 529 ( 61 S.E.2d 567); Nixon v. Russell Piano Co., 51 Ga. App. 399 ( 180 S.E.2d 743); 50 USCA ยง 520; Smith v. Smith, 222 Ga. 246 ( 149 S.E.2d 468); Boone v. Lightner, 319 U.S. 561 ( 63 SC 1223, 87 LE 1587); Saborit v. Welch, 108 Ga. App. 611, 613 ( 133 S.E.2d 921). I therefore concur in the judgment of reversal because of the lack of jurisdiction of the lower court, although disagreeing with the majority in Division 1. I concur with the majority in holding that no declaration was filed as required in the case of nonresidents as held in Division 2.
However, the presumption appears to be unfounded in view of the defensive pleadings filed by Cauley completely denying liability, and hence it has not been "made to appear by further relevant evidence that his ability to . . . defend the proceeding is not materially impaired by reason of his military service." Lankford v. Milhollin, 197 Ga. 227 (2) ( 28 S.E.2d 752); Smith v. Smith, 222 Ga. 246 (2) ( 149 S.E.2d 468). Accordingly the judgment must be Affirmed. Felton, C. J., and Whitman, J., concur.