Opinion

Judkins v. Judkins

  • 113 N.C. App. 734
  • 441 S.E.2d 139
  • 1994 N.C. App. LEXIS 210
Court
Court of Appeals of North Carolina
Filed
Mar 1, 1994
Status
Published
Author
John
On the bench
Wells, John, McCrodden
Cited by
26 cases
Authority
More cited than 5.9%

holding member consented by making general appearance and filing answer with counterclaims without contesting jurisdiction

How later courts described this case

  • holding member consented by making general appearance and filing answer with counterclaims without contesting jurisdiction
  • state court obtained personal jurisdiction over military member where he made a general appearance by seeking affirmative relief in his answer without contesting personal jurisdiction
  • member consented by making general appearance and filing answer with counterclaims without contesting jurisdiction

Written by the judges who cited it.

The opinion

Judge JOHN

concurring in the result.

I concur in the result reached by the majority because I agree, under Boone v. Lightner, 319 U.S. 561 , 87 L.Ed. 1587 , reh’g denied, 320 U.S. 809 , 88 L.Ed. 489 (1943), that the extensive findings in this case sufficiently reflect the court’s “opinion ... that defendant’s ability to defend was not materially affected by his military service.”

*743 However, absent the comprehensive findings found in Boone and the case sub judice from which a court’s opinion may fairly be determined, I believe the prescriptive language of the statute (“action or proceeding . . . shall ... on application ... be stayed . . . unless, in the opinion of the court, the ability of . . . the defendant to conduct his defense is not materially affected by reason of his military service”) obliges a trial court in its ruling specifically to address the legislatively mandated opinion. 50 U.S.C. § 521 (emphasis added). I therefore write separately to emphasize that, at a minimum, the better practice would be for the record to contain the trial court’s statutorily required opinion stated with particularity. It would not then be necessary on appeal to attempt to ascertain it in some other fashion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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