Union Investment Co. v. Schonebaum ( 1918 )

WHITING, P. J.

Motion to «dismiss a-n« appeal from a judgment. The judgment was perfected after July 1, 1916. The appeal was taken moire than «one year, but less than two years, after the perfection of the judgment.

Under tire law as it existed .prior to July I, 1917 (section 442, C. C. P.), an appeal from a judgment Could be taken at any time within two years from the perfecting of sudh judgment. Chapter 201, Laws 1917, amends -said section 442 by limiting such time for -appeals to -one year. Respondents contend thlat the 'right of appeal from (this judgment expired at the end- of 'one year fucm th-e perfection thereof.

■Conceding that an ap-pe’al is but a privilege which- the Legislature can take a-way if it so- desires, the sole question before us is-: What was- the legislative intent in- passing chapter 201, Laws 1917? If it were intended that Ithis- law should be retroactive in effect, then- it -was the intent to take away the existing right o-f appeal, where' such existing right had less than- a year to- run, and to leave in existence such existing right of appeal when sudh existing right bad1 over a year to- run- -under toe former-law. If the legislative intent were that sudh amendment should apply only to judgments thereafter perfected!, the result would be to in no manner shorten- the period' for appeals from judgments already perfected. Th-u-s we wowl-di have a right of appeal from judgments perfected in June, 1917, existing until June, 1919, while toe right o-f appe'al from judgments perfected inJu-ly, 1917, would terminate in July, 1918. We 'cannot believe that th-e Legislature- intended- to create either of the above situations.

It sieem-s clear to us that the Legislature intended, u-p'o-n the one hand, mat to summarily terminate any existing right -of appeal, and, u-p'on the other hand, not to allow any period of more than -one year in which to take an appeal after July 1, 1917. We a-re therefore o-f toe -opinion that a-si to judgments perfected-prior to July 1, 1917, the amendment gives .a full year, and no more, from July 1, 1917, in which to take an- appeal, except in-those cases where, under section 442, supra, toe right of appeal would expire in -less than a year after July 1, 1917.

In support of the above we cite Wilson v. Kryger, 26 N. D. 77, 143 N. W. 764, 51 L. R. A. (N. S.) 760, and numerous authorities therein -cited,

The motion- to- dismiss is denied.