DocketNumber: No. 5551
Citation Numbers: 44 Wash. 158
Judges: Root
Filed Date: 10/19/1906
Status: Precedential
Modified Date: 8/12/2021
After an opinion was handed down in this case (August 15, 1905; 39 Wash. 587, 81 Pac. 1058), respondent interposed an elaborate and able petition and argument for rehearing, based principally upon the contention that the statute of 1897, as applied to a case of this character, constituted the taking of property without due process of law. This point was suggested in the original briefs, but not urged or argued. A rehearing was ordered and the parties invited to file briefs presenting such arguments as they deemed proper, and were especially requested to give their views on the following questions: (1) Is this a proceeding to revive the judgment of the superior court or of the supreme court? (2) If this is an action to revive a judgment of the supreme court, how does the question of the constitutionality of the statute of 1897 become material, said statute having come into effect prior to the entry of the judgment? (3) If it is the superior court judgment that is sought to be revived, was the original proceeding (to revive) commenced in time? (4) Does the statute forbidding a revivor of a judgment on tort amount to the tailing or damaging of property within the constitutional meaning? (5) Is a right of action upon a tort, before merged in a judgment, a property right which the legislature could not legally affect by means of a statute forbidding the revivor of judgments, as was done or attempted to be done by the statute of 1897? The pertinency of the foregoing questions will be perceived from the following statement of facts:
The judgment of the superior court in this case was entered on the 26th day of February, 1897. The statute involved in this case went into effect in June, 1897. An appeal was taken from the judgment of the superior court to the supreme court of the state, which handed down an opinion on December 17, 1897, affirming the judgment of the lower court. 18 Wash. 311, 51 Pac. 461. Judgment in the supreme
Appellant urges that said statute is valid; that the taking away of the right to a revivor has to do only with the remedy, and that inasmuch as in this particular case the respondent had over six years within which to issue execution and enforce her judgment, the statute is, as applied to this case, in no sense obnoxious to the constitution. We think this conclusion must be sustained. The question as to how much time shall be given to a litigant to enforce a judgment which he has obtained in a court seems to us to be a matter of public policy to which the legislature may give expression by means of a statute, providing the right which the judgment evidences at the time of its entry is not arbitrarily
An interesting case is that of Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936. Certain persons, under the provisions of a state statute providing therefor, obtained judgments against the city of New Orleans for damages to property caused by mob violence. While these judgments remained in full force and unpaid and unsatisfied, the people of the state adopted a constitution which had the effect of preventing the city from levying a sufficient tax to pay said judgments or any portion thereof. It was contended before the supreme court of the United States that said state constitution impaired the obligation of contracts and amounted to a deprivation of property without due process of law. The court held otherwise, and while it expressly disclaimed any intention to pass upon the question of the effect of legislation upon the means of enforcing an ordinary judgment for tort, yet the principles involved would seem necessarily to apply to some extent, at least, to such cases. Mr. Justice Bradley, however, entertained and expressed a different view in an opinion concurring specially with the decision of the majority. As bearing upon the case at bar we may quote from his opinion the following:
“To abrogate the remedy for-enforcing it [ordinary judgment for tort] and to give no other adequate remedy in its stead, is to deprive the owner of his property within the meaning of the Fourteenth Amendment.”
It would seem to be implied and properly inferable from this language that such a statute or constitutional provision would be valid if some “other adequate” remedy were provided. We do not think this court can say, as a matter of
The case of Freeland v. Williams, 131 U. S. 405, 9 Sup. Ct. 763, 33 L. Ed. 193, involved the validity of a constitutional provision adopted by the people of West Virginia, providing that participants in the civil war should not be hable for, nor their property sold on account of, certain acts committed during the war. Prior to the adoption of said constitutional provision, Freeland had obtained a judgment against Williams for cattle driven off during the war. After the adoption of said provision, Williams began a proceeding in equity to enjoin the enforcement of said judgment, and obtained such a decree in the state courts. Freeland then sued out a writ of error, and the case was brought before the United States supreme court for review, the plaintiff in error urging that the state constitutional provision was in conflict with § 10, art. I, of the Federal constitution, in that it impaired the obligation of a contract, and with § 1 of the Fourteenth Amendment, in that it deprived him of property without due process of law. The court denied both contentions. Touching the latter, it said:
“The proposition of the plaintiff in error is, that by the judgment of the Circuit Court of Preston county he had acquired a vested right in that judgment; that the judgment was his property; and that any act of the state which prevents his enforcing that judgment, in the modes which the law permitted at the time it was recovered, is depriving him of property without due process of law, and, therefore, for
In Koshkonong v. Burton, 104 U. S. 668, 26 L. Ed. 886, the United States supreme court among other things said:
“It was undoubtedly within the constitutional power of the legislature to require, as to existing causes of action, that
The supreme court of Minnesota, in Burwell v. Tullis, 12 Minn. 572, spoke as follows:
“It would unquestionably be competent for the legislature to declare that a judgment creditor must attempt to enforce his judgment within a given time, or be afterwards denied any remedy for that purpose, and it must follow that if all remedy may be taken away, under similar circumstances, any particular remedy or a part of the remedy may also be taken away.”
In the case of Bartol v. Eckert, 50 Ohio St.
“It is well settled that a party to a. suit has no vested right to an appeal or writ of error from one court to another. In Laferty v. Shinn, 38 Ohio St. 46, it is stated that in the right to appeal to the courts there is not involved a further right to appeal from the judgment of the court to which such application for redress is made; on the contrary, that a right to appeal from such judgment exists only when given by statute; that such right to appeal, when so given, may be taken away by statute, even as to cases pending on appeal; and that the same thing is true with us as to proceedings in error. See Com. v. Messenger, 4 Mass. 469; Ex parte McCardle, 7 Wall. 506; The Marinda v. Dowlin, 4 Ohio St. 500; Railroad Co. v. Grant, 98 U. S. 398. We
See, also, Baer v. Choir, 7 Wash. 631, 32 Pac. 776, 36 Pac. 286; Terry v. Anderson, 95 U. S. 634, 24 L. Ed. 367; Cohen v. Wright, 22 Cal. 293; Judkins v. Taffe, 21 Ore. 89, 27 Pac. 221; Swampland Dist. v. Glide, 112 Cal. 85, 44 Pac. 451; McCormick v. Alexander, 2 Ohio 66; Borrman v. Schoder, 18 Wis. 437; Sohn v. Waterson, 17 Wall. 596, 21 L. Ed. 737; Stine v. Bennett, 13 Minn. 153; Bagby v. Champ, 83 Ky. 13; Whitehead v. Latham, 83 N. C. 232; Cooley, Constitutional Limitations (7th ed.), pp. 255, 515-524; 6 Am. & Eng. Ency. Law (2d ed.), p. 952. See, also, cases cited in former opinion.
The order appealed from is reversed, with instructions to the honorable superior court to dismiss the petition.
Mount, C. J., Hadley, and Crow, JJ., concur.
Fullerton, J., concurs in the result.