Sydnor v. Palmer , 32 Wis. 406 ( 1873 )

Dixon, C. J.

This is one of those cases, unfortunately too frequent, growing out of that feverish and insatiable desire for change which pervades the law making department of the government. Frequent changes of laws are always bad, and they are especially much worse when rashly and inconsiderately made, without regard to their effects upon existing remedies and pending actions and proceedings. The question here presented arises out of no less than three distinct repeals of a section of the Revised Statutes, effected by three distinct acts of tbe legislature passed at three several sessions, and all within a period of but a few days more than three years from the date of the first act. The statute thus -repealed by substitution, and so rapidly turned from one thing into another, is, or was, a most important provision of law regulating the rem.edy of suitors in a most important class of actions, namely, actions for the trial and determination of titles to real estate. It is that provision, most important in actions of the kind, so known to be and so esteemed by the legislature, since it has always existed in the statute laws, which gives the defeated party the right to a new trial as of course, on payment of all costs, whenever applied for within the time prescribed by statute, which has never been less than one year after the rendition of judgment This right, in all respects so valuable, the defendants in this action have been cheated out of by legislative carelessness and indifference; and it is now beyond the power of that department of the government, as well as of the judicial, to restore it to them. No new trial can be granted or right of appeal given by subsequent legislative enactment, where those rights have once lapsed and the judgment has become final between the parties. Town of Lancaster v. Barr, 25 Wis., 560; Davis v. Menasha, 21 Wis., 491.

The legislative acts which have produced this unfortunate result, are ch. 125, Laws of 1869, ch. 55, Laws of 1871, and ch. 141, Laws of 1872, repealing by substitution sec. 20, ch. 141, R. S.. and each in turn repealing in like manner its immediate predecessor. The two first acts declare that the section of the Revised Statutes “ is hereby amended so as to read as follows : ” and then comes the substituted provision. The phraseology of the act of 1871 indicates that the framers had no knowledge of the act of 1869. The act of 1872 is of the same kind, and declares that that of 1871 “ is hereby amended so as to read as follows,” etc. The blame of depriving these defendants of their right to a new trial may be said to attach to either of the acts of 1871 or 1872. The act of 1869, in force when the appeal of these defendants from the judgment against them was taken to this court, provided that if such appeal was taken within ninety days after judgment, the time during which the cause was pending in and unremitted from this court, should be excluded from and be deemed no part of the year within which the application might be made. The appeal of the defendants was taken within ninety days after the rendition of the judgment. The act of 1871, passed while the cause was pending in this court, and in force when it was remitted, abrogated the special provision of the act of 1869, and gave the party against whom judgment was rendered but one year in o.ny case within which to apply for and obtain the new trial. The act of 1872, in force when the application for a new trial was made, gave the party the extended time, or excluded from the computation of the one year the time during which the cause was pending and remained in this court, only in cases where the appeal was taken within twenty days after the judgment was rendered. The appeal in this case was not taken within twenty days after such rendition. The act of 1872 was, as we are credibly informed, repealed at the last legislative session, 1873, and what the law now is we do not know, and do not care to instruct ourselves until the time comes when we must do so, which will doubtless be soon enough. The fault, and a most egregious one too, of both the acts of 1871 and 1872, was, that they did not save the rights of suitors in pending actions as those rights existed at the time of their passage.

The rule of construction by which it must be held that each of the acts referred to worked a total repeal of the statute in place of which it was enacted, is well settled in this court. State v. Ingersoll, 17 Wis., 631; Goodno v. Oshkosh, 31 Wis., 127.

Counsel for the defendants makes a point that the legislature has no power to deprive them of the right to a second trial as given by the act of 1869,. in force at the time the judgment was rendered and when they perfected their appeal from that judgment, and refers us to the case of Streubel v. Railroad Co., 12 Wis., 67. It appears to us tbe cases are clearly distinguishable. Tbe cases cited involved tbe destruction of vested rights acquired by contract under existing laws, which it was held the legislature could not destroy. The case before us involves the abolition of a mere remedial right or privilege, which the legislature can give or withhold at pleasure. The acts in question pertained merely to a matter of remedy, which it was competent for the legislature at any time to revoke. There can be no doubt that the total repeal of the statute for obtaining a second trial, giving no other similar remedial right in its stead, would be a constitutional and valid exercise of legislative power, and that it would carry with it all right to such trial in pending actions. The constitutional principle thus involved has been very recently under consideration by the court of appeals of New York, and the power of the legislature asserted to a point far beyond that to which this court would be willing to go, unless constrained after a most anxious and deliberate consideration of the subject. We refer to the case of Watson v. Railroad Co., 47 N. Y., 157, in which it was held that the lien of a judgment given by statute upon real estate is purely statutory, and that it is within the power of the legislature to abolish it at any time before rights have become vested, or estates acquired under it, as by a sale, and to confine the remedies of the creditor to the property held by the judgment debtor at the time of the issuing of execution. The case is in-, teresting as a discussion of the point here urged by counsel.

The order appealed from must be reversed, and the cause remanded for further proceedings according to law.

By the Court. — So ordered.