Campbell v. Iron-Silver Mining Co.

• Decision Date: 22 November 1897
• Docket Number: 923.
• Citation: 83 F. 643
• Parties: CAMPBELL et al. v. IRON-SILVER MIN. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

83 F. 643

CAMPBELL et al. v. IRON-SILVER MIN. CO.

No. 923.

United States Court of Appeals, Eighth Circuit.

November 22, 1897

Peter Campbell and others, the plaintiffs in error, sued the Iron-Silver Mining Company, the defendant in error, on July 5, 1884, in a proceeding by ejectment. The suit was first tried, and the plaintiffs recovered a judgment, on May 21 1885. This judgment was reversed by the supreme court of the United States on April 28, 1890. Mining Co. v Campbell, 135 U.S. 286, 10 Sup.Ct. 765. The case was again tried on April 3, 1893, pursuant to the order of reversal, and the plaintiffs recovered a second verdict and judgment. Before the succeeding term, the defendant paid the costs, and applied for a new trial as of right, under the provisions of section 272 of the Colorado Code of Procedure hereafter quoted. This application was denied by the circuit court, but, upon a writ of error prosecuted in this court the judgment below was reversed on May 7, 1894, and the case was remanded for a new trial, pursuant to the Colorado statute. Mining Co. v. Campbell, 27 U.S.App. 65, 10 C.C.A. 172, and 61 F. 932. The case was again tried in the circuit court, pursuant to the order of this court, on June 16, 1896; and upon such third trial of the case the jury rendered a verdict in favor of the defendant company, and upon such verdict a judgment was duly entered. The plaintiffs then paid the costs before the succeeding term of the circuit court, and thereupon filed their motion to obtain a new trial as a matter of right, under the statute. This latter motion was overruled by the circuit court, and the case has been brought before this court by a writ of error, to obtain a review of the action of the trial court in denying the application of the plaintiffs for a new trial as a matter of right. Section 272 of the Colorado Code of Procedure, which was in force when this action was instituted, and which remained in force, without amendment, until July 12, 1895, is as follows: 'Whenever judgment shall be rendered against either party under the provisions of (this) chapter, it shall be lawful for the party against whom such judgment is rendered, his heirs or assigns, at any time before the first day of the next succeeding term, to pay all costs recovered thereby, and upon application of the party against whom the same was rendered, his heirs or assigns, the court shall vacate such judgment and grant a new trial in such case; and neither party shall have but one new trial in any case as of right without showing cause. * * * ' On April 13, 1895, the aforesaid section was amended by an act of the legislature of the state of Colorado, which took effect July 12, 1895. Laws Colo. 1895, pp. 141, 142. The amendment consisted in striking out the clause of the section which has been italicized, and inserting in lieu thereof the following language: 'But only one new trial shall be granted in any case as of right without showing cause.'

E. F. Richardson (T. M. Patterson, H. N. Hawkins, and Clinton Reed, on the brief), for plaintiffs in error.

Joel F. Vaile (Edward O. Wolcott, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case, as above, .

It will be observed from the foregoing statement that one new trial was had in the case at bar, as of right, on June 16, 1896,-- nearly a year after the amendatory act of April 13, 1895, was passed and became operative. The case falls, therefore, within the language of said act; and the general question to be determined is whether the act of April 13, 1895, should be construed as applicable to pending cases, or as solely applicable to suits for possession of real property brought after the act took effect. It is contended by the plaintiffs, in substance, that the act in question is not applicable to suits which were pending at the date of its passage, because, if thus applied, it would have a retroactive effect tn violation of article 2, Sec. 11 of the Colorado constitution, which prohibits the enactment of laws that are 'retrospective in their operation'; and, second, because the amendatory act, if held applicable to pending suits, and particularly to the case at bar, would destroy vested rights. Both of these contentions would have great weight if it appeared that an adverse verdict had been rendered, and was standing on July 12, 1895, when the amendment took effect, and if the amendment was invoked to prevent the plaintiffs from having that verdict set aside without showing cause. In that event it might well be claimed that the amended act, if thus applied, would have a retrospective operation, and take away a right already vested under the prior law. But the conditions last mentioned did not exist when the act in question took effect, and it was then problematical whether they ever would exist. A new trial as of right was had on June 16, 1896, and it is that trial, which occurred 11 months after the amendment, that is invoked to prevent another trial except for cause shown. The act, as applied to the case in hand, operates upon a state of facts which came into existence subsequent to its passage; and, as thus applied, it would seem to be no more retrospective, or unjust or unfair in its operation, than it would be if applied to a suit brought after its passage to recover the possession of real property upon a cause of action which existed when the act took effect. Mellinger v. City of Houston, 68 Tex. 37, 45, 46, 3 S.W. 249.

It is urged, however, that the statute in force when this suit was filed, to wit, section 272, above quoted, which allowed one new trial to each party on the payment of costs, without showing cause, created a vested right, of which a litigant could not be deprived by an amendment of the statute after a suit had been brought. With reference to this contention, it may be said that section 272 is found in the Colorado Code of Civil Procedure, and is unquestionably a provision relating to the remedy for the enforcement of a certain civil right. It confers a privilege on litigants, in a certain class of civil suits, which the legislature was at liberty to grant or to withhold. It is to be observed, further, that the privilege in...