PARTIALLY CONCURRING OPINION OF
CIRCUIT JUDGE ASHFORD.It is with extreme reluctance, and with serious misgivings as to the accuracy of my position, that I concur in so much of the foregoing majority opinion as holds that the defendant, not being in the military service, was entitled to insist that an affidavit to the effect that he was not in such service, should be filed before any judgment was entered. I heartily concur, however, in the finding that, if such affidavit was required at all, it was required precedent to the entering of the order or judgment of default.
The point at issue involves the question whether the action of the trial court, in proceeding to judgment without the filing of such affidavit, rendered its subsequent *453acts void, or merely voidable. The majority opinion holds that the Congressional Act, requiring the filing of the affidavit in question, being a mandatory act, must be complied with in order to sustain the jurisdiction of the court to proceed further. The correctness of this view does not appeal to me as clearly as I could wish, but, it is at least doubtful in my opinion, whether the acts of the trial court in entering the judgment of default in the absence of such affidavit, and thereafter proceeding to trial and final judgment, constituted anything more than error of law,— jurisdiction of the subject matter and of the person of the defendant being complete. No possible question of the accuracy of the majority opinion upon this point, could arise if the defendant had, in fact, been in the military service. But, because he was not in that service, it appears to me at least an open question whether the act of the trial court in ordering a default and proceeding to trial constituted anything more than harmless error. Many errors of law are committed by trial courts, not all of which are harmful to the losing party, and it is becoming more and more the aim and the usage of our courts of review to disregard harmless errors. But the majority of the court consider that the errors herein complained of went to the jurisdiction of the court, and rendered its further proceedings void. Because of my lack of abiding conviction that this position is erroneous, I do not feel impelled to dissent from it.
The majority opinion also holds that paragraph 4 of Article II of the Congressional Act has to do only with a judgment rendered after compliance with the prior provisions requiring the affidavit, or, in its absence, an order of court before judgment, and requiring the appointment of counsel for the defendant if he be in the military service, — and that even where all such requirements have been met, a judgment rendered against a person in the military *454service may be set aside after bis release from service, provided be can show be was prejudiced in mating bis defense by reason of bis military service. Witb respect to tbe bolding last above referred to, I feel that it is quite outside tbe issues of tbe present case, and unnecessary to its decision. I therefore respectfully dissent from that portion of tbe foregoing opinion.
Tbe result is, that I concur in sustaining tbe first exception mentioned in tbe majority opinion, and in ordering a new trial.