Conrad v. Smith

• Decision Date: 15 April 1897
• Court: North Dakota Supreme Court

70 N.W. 815

6 N.D. 337

W. S. CONRAD v. CHARLES W. SMITH, SHERIFF

Supreme Court of North Dakota

April 15, 1897

Appeal from District Court, Cass County; McConnell, J.

Action by W. S. Conrad against Charles W. Smith, sheriff of Cass County. Judgment for plaintiff. Defendant appeals.

Reversed.

Judgment of the District Court reversed, and a new trial ordered.

J. W Tilly, for appellant.

This case is controlled by § 4657, Comp. Laws. To apply the amendment as contained in Ch. 78, Laws 1893, to this case would be to give the amendment retroactive effect. A statute should not receive such construction as to make it impair existing rights. New obligations, impose no duties in respect to past transactions unless such plainly appears to be the intention of the legislature. South. on St. Cr. § 464; Potter's Dwaris on Stats. 162, n. g.; Matter of Oliver Lee & Co. v. Bank, 21 N.Y. 9. The attaching creditor by the seizure in attachment of the stallion acquired a lien and vested right therein that could not be divested by subsequent legislation. Ryan v. Maxey, 35 P. 514; Daggy v. Ball, 34 N.E. 246; Duggey v Mechanics, etc. Co., 32 S.W. 5; Sedgwick on St. Cr. 188; 23 Am. & Eng. Enc. L. 448.

Ball Watson & Maclay, for respondent.

The debt of McKee to the Brunswick, Balke Collender Co., having been incurred long prior to Oct. 1st, such company was not a creditor of McKee's within the meaning of that word as found in § 5053, Rev. Codes. The language of this section is substantially the same as that of § 4733, Rev. Codes. One whose debt was not incurred while a chattel mortgage was withheld from record, and who did not alter his position to his detriment after the mortgage was given and before it was filed, was held not a creditor within the meaning of this section. Union National Bank v. Oium, 3 N.D. 193, 54 N.W. 1034. Our constitutional provision involved in this controversy is that "no bill of attainder ex post facto law, or law impairing the obligation of contracts shall ever be passed." Section 16, Const. There is no constitutional inhibition against the passage of retroactive laws in this state provided such laws do not destroy contract obligations. Bay City v. Austin, 21 Mich. 390; Welch v. Wadsworth, 30 Conn. 149; Bennett v. Fisher, 26 Ia. 497; State v. Squires, 26 Ia. 340. Cooley's Const. Lim. § 370. The act of 1893 in its retroactive aspect, destroys no vested right but is in its essence and operation a remedial statute relating alone to a rule of evidence. The right to have ones controversies determined by existing rules of evidence is not a vested right. Cooley's Const. Lim. § 367; Webb v. Den, 17 How. 576; Howard v. Moot, 64 N.Y. 262; Peo v. Mitchell, 45 Barb. 208; Failes v. Wadsworth, 23 Maine--; Millard v. Hawley, 24 N.H. 351; Rich v. Flanders, 39 N.H. 304; Daniels v. Nelson, 98 Am. Dec. 577. A defense upon a mere formality may be taken away. Tift v. City, 82 N.Y. 204; Irwin v. Pierro, 47 N.W. 154; Larkin v. Saffaraus, 15 F. 150; Finlayson v. Peterson, 67 N.W. 953, 5 N.D. 587; Cooley's Const. Lim. 370. Note to Gasher v. Stowington, 10 Am. Dec. 136. A person cannot have vested rights contrary to equity and justice. U. S. Mortgage Co. v. Gross, 94 Ill. 483; Baugher v. Nelson, 9 Gill. 299. Contracts bad or defective in form or made void by penal enactment may be validated and confirmed by subsequent legislation. Dentzel v. Waldie, 30 Cal. 139; Ewell v. Daggs, 108, U.S. 143; Waterson v. Mercer, 9 Pet. 110; Myer's Vested Rights, 42; Satterlee v. Mathewson, 2 Pet. 380; Suth. St. Cr. 617.

OPINION

CORLISS, C. J.

This cause is before us a second time upon substantially the same facts. 2 N.D. 408, 51 N.W. 720. On the former appeal we held that the case fell within the provisions of § 4657 Comp. Laws, and that, therefore, a conclusive presumption of fraud arose in favor of the attaching creditor who was a creditor of the vendor of the property attempted to be sold. The action was against the sheriff for the conversion of a stallion. The sheriff justified under a warrant of attachment issued against one J. H. McKee, once the owner of the stallion, and upon the trial he took the position that the alleged sale of the animal to plaintiff by McKee was by the law conclusively presumed to be fraudulent, and therefore void as to creditors of McKee, for the reason that the sale was not accompanied by an immediate delivery, and followed by an actual and continued change of possession of property. On appeal we held that the evidence fully warranted the contention of the defendant, and the case was therefore reversed, and a new trial ordered. Before the cause came on for a second trial, the legislature repealed the statute in question, and enacted a substitute for it, from which was eliminated the element of conclusive presumption of fraud. The new statute is § 5053, Rev. Codes, and is couched in the following language: "Every sale made by a vendor of personal property in his possession or under his control, and every assignment of personal property, unless the same is accompanied by an immediate delivery and followed by an actual and continued change of possession of the property sold or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor or assignor, or subsequent purchasers or encumbrancers in good faith and for value, unless those claiming under such sale or assignment make it appear that the same was made in good faith and without any intent to hinder, delay or defraud such creditors, purchasers or encumbrancers." On the second trial the plaintiff was permitted to introduce evidence that the sale from McKee to himself was made in good faith, and without any intent to hinder, delay, or defraud creditors, purchasers, or encumbrancers. The theory on which the trial court proceeded in allowing this evidence to be introduced was that both of the statutes referred to were statutes regulating evidence, and that, therefore, the one establishing a new rule of evidence before the second trial must govern that trial of the case, although on the first trial a different rule of evidence prevailed because of the statutory conclusive presumption of fraud declared by the law as it stood at that time. Counsel for defendant challenges by this appeal the correctness of this position, and here insists that at the time of the repeal of the old statute and the enactment of the new the creditor whom the defendant represents had become vested with such rights under the provision of the original statute as are protected by the fundamental law against destruction or impairment. It is evident that the pivotal point is the legal character of these two statutes. If they merely establish rules of evidence, then a familiar principle of law requires us to give effect to the one in force when the second trial was had, unless it is apparent that it was designed that the new rule of evidence should not apply to existing causes of action or existing suits. No one has such a vested right in a mere rule of evidence as is protected by the organic law. Judge Cooley ably states and illustrates the doctrine in his work on Constitutional Limitations. He says, at page 452: "It must also be evident that a right to have one's controversies determined by existing rules of evidence is not a vested right. These rules pertain to the remedies which the state provides for its citizens; and generally, in legal contemplation, they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting a remedy, they must, therefore, at all times, be subject to modification and control by the legislature; and the changes which are enacted may lawfully be made applicable to existing causes of action, even in those states in which retrospective laws are forbidden. For the law as changed would only prescribe rules for presenting the evidence in legal controversies in the future, and it could not, therefore, be called retrospective, even though some of the controversies upon which it may act were in progress before. It has accordingly been held in New Hampshire that a statute which removed the disqualification of interest, and allowed parties in suits to testify, might lawfully apply to existing causes of action. So may a statute which modifies the common-law rule excluding parol evidence to vary the terms of a written contract, and a statute making a protest of a promissory note evidence of the facts therein stated. These and the like cases will sufficiently illustrate the general rule that the whole subject is under the control of the legislature, which prescribes such rules for the trial and determination as well of existing as of future rights and controversies as in its judgment will most completely subserve the ends of justice." Indeed, it has been held that under constitutions which in terms inhibited the enactment of retrospective laws, changes in rules of evidence might be made applicable to existing cases. Webb v. Den, 58 U.S. 576, 17 HOW 576, 15 L.Ed. 35; Rich v. Flanders, 39 N.H. 304; De Cordova v. City of Galveston, 4 Tex. 470; Brandon v. Green, 26 Tenn. 130, 7 Hum. 130. See, also, Shields v. Land Co., (Tenn.) 94 Tenn. 123, 28 S.W. 668. In truth, a law relating to evidence cannot be said to have a retrospective effect, when it is applied to subsequent trials notwithstanding the fact that the action was pending when the law...