Bascom v. District Court of Cerro Gordo County

• Decision Date: 09 December 1941
• Docket Number: 45830.
• Citation: 1 N.W.2d 220,231 Iowa 360
• Parties: BASCOM v. DISTRICT COURT OF CERRO GORDO COUNTY et al.
• Court: Iowa Supreme Court

1 N.W.2d 220

231 Iowa 360

BASCOM v. DISTRICT COURT OF CERRO GORDO COUNTY et al.

No. 45830.

Supreme Court of Iowa

December 9, 1941

Senneff & Duncan, of Mason City, for petitioners.

Breese & Cornwell, of Mason City, for respondents.

WENNERSTRUM Justice.

This is an original proceeding in certiorari brought to review a ruling of the district court wherein that court refused to change the place of trial to the county of defendant's residence. The facts may be briefly summarized as follows:

Henry L Beard, now deceased, was driving a farm tractor upon a highway in Cerro Gordo County on May 7, 1941. The petitioner L. A. Bascom, drove his automobile into and against the tractor on that date and as a result thereof, injuries were then sustained by H. L. Beard, which caused his death. Olga Beard was thereafter appointed administratrix of his estate. On August 22, 1941, she commenced an action against the defendant petitioner, who is a resident of Floyd County, Iowa. This action was brought in the District Court of Cerro Gordo County, Iowa. Thereafter L. A Bascom filed a motion to change the place of trial to Floyd County, Iowa, the place of his residence, which motion was overruled.

The consideration of the writ of certiorari that is before us requires our study of an amendment to the statute which was enacted as chapter 298 of the Acts of the 49th General Assembly and which is in part as follows: "Actions arising out of injuries to a person or damage to property caused by the operation of any motor vehicle may be brought in the county in which the defendant, or one of the defendants, is a resident or in the county in which the injury or damage is sustained."

This new provision of the statute did not provide for it to become effective upon publication and consequently it became the law of the state on July 4, 1941. Constitution of Iowa, Article 3, section 26; section 53, 1939 Code.

The question that must receive our consideration is whether this amendment to the statute is retrospective in nature and shall apply to actions arising or accruing prior to the effective date of the statute. In 59 C.J. paragraph 700, page 1173, there is discussed the question as to the retrospective effect of legislation and it is there stated:

"A difference is recognized between statutes affecting substantial rights and those affecting only procedure, the courts being more liberal in the interpretation relative to retrospective operation in the latter than in the former case. The general rule that statutes will be construed to be prospective only and not retrospective or retroactive ordinarily does not apply to statutes affecting remedy or procedure, or, as is otherwise stated, such general rule is subject to an exception in the case of a statute relating to remedies or procedure. While it has been said that statutes relating to remedies or procedure may be given a retroactive operation, a more accurate statement of the principle intended is that, unless expressly prohibited by statute, and in the absence of directions to the contrary, or unless in doing so some contract obligation is violated or some vested right divested, statutes merely affecting the remedy or law of procedure apply to actions thereafter, whether the right of action accrued before or after the change in the law. * * *.

"The presumption against retrospective construction of statutes as a general rule does not apply to statutes that relate merely to remedies and modes of procedure."

In connection with this same question as to the retrospective effect of a statute we find the following comment in 25 R.C.L. par. 38, page 791: "Statutes relating to procedure or legal remedies are undoubtedly within the general rule against retrospective construction where the effect of giving them a retroactive operation will be to impair the obligation of contracts or to disturb vested rights. But the rule does not prevent the application of statutes to proceedings pending at the time of their enactment where they neither create new, or take away vested, rights. When a new statute deals with procedure only, prima facie, it applies to all actions--those which have accrued or are pending and future actions."

Our next consideration must therefore be given to the proposition as to whether or not there is any vested right of an individual in any particular manner of procedure. In this connection attention is here called to the case of Lewis v. Pennsylvania Railroad Company, 220 Pa. 317, 69 A. 821, 822, 18 L.R.A.,N.S., 279, 281, 13 Ann.Cas. 1142, where it is stated: "* * * No one can claim to have a vested right in any particular mode of procedure for an enforcement or defense of his rights. When a new statute deals with procedure only, prima facie, it applies to all actions,--those which have accrued or are pending, and future actions. If before final decision a new law as to procedure is enacted and goes into effect, it must from that time govern and regulate the proceeding. Sutherland on Statutory Construction, § 482, and the authorities there cited. * * *."

In the case of Duggan v. Ogden, 278 Mass. 432, 180 N.E. 301, 302, 82 A.L.R. 765, 767, there is discussed an amendment to the statute which provided for service of notice on non-resident motorists and it is there stated: "* * * There were added alternative provisions to the effect that notice of such service and copy of process might be served upon the defendant if found within the commonwealth by an officer qualified to serve process, or if found without the commonwealth by a sheriff or deputy sheriff of any county in this commonwealth or by a duly constituted public officer qualified to serve such process in the jurisdiction where the defendant is found. These changes relate to practice and procedure and not to substantive rights. They therefore are applicable to actions brought...