Judkins v. Taffe

• Decision Date: 24 June 1891
• Citation: 27 P. 221,21 Or. 89
• Parties: JUDKINS v. TAFFE.
• Court: Oregon Supreme Court

27 P. 221

21 Or. 89

JUDKINS v. TAFFE.

Supreme Court of Oregon

June 24, 1891

Appeal from circuit court, Wasco county.

Action by H.P. Judkins against I.H. Taffe. Plaintiff had judgment and defendant appealed. Appeal dismissed.

George Watkins, for appellant.

J.L Story, for respondent.

BEAN J.

This is a motion to dismiss the appeal in this case because the transcript was not filed at Salem by the first day of the March term of this court. On June 13, 1890 respondent recovered a judgment against appellant for the sum of $500 in the circuit court of Wasco county, from which he duly appealed to this court, by filing his notice of appeal on December 8, 1890, and on the next day his undertaking, but the transcript was not filed in this court until the 29th day of April, 1891. By the act of February 15, 1890, (Laws 1889 p. 4,) it was provided that there shall be two terms of this court held annually at the capital, commencing on the first Monday in March and the first Monday in October in each year and at such other times as the court may appoint; and one term at Pendleton, commencing on the first Monday in May in each year; and that the transcripts in all appeals taken from any circuit court in any county lying east of the Cascade mountains, except in Klamath and Lake shall be forwarded to the clerk of this court at Pendleton, and shall be heard and determined there, unless otherwise stipulated between the parties, or ordered by the court. And appeals taken from the circuit court in all other parts of the state shall be heard and determined at the capital. By an amendatory act approved February 16, 1891, and which took effect from the date of its approval, it was provided that "the transcripts in all appeals taken from Wasco, Crook or Sherman counties, unless otherwise stipulated by the parties, shall be forwarded to the next succeeding term of said supreme court after the appeal shall be perfected; and, if said next succeeding term after the perfection of said appeal shall be held at Salem, then the cause shall go to that place for hearing and decision, and the transcript shall be forwarded there by the first day of said term of court, as aforesaid; but in case the next succeeding term of the supreme court after such appeal shall be perfected shall be held at Pendleton, such transcript shall be forwarded by the first day of said term at Pendleton." The appeal in this case having been perfected before the passage of the amendment of 1891, the contention of appellant is that such appeal is not in any way affected by this amendment, but must be heard and determined at Pendleton, as provided in the act of 1889. The language of the amendment does not expressly refer to appeals already perfected, and it is claimed that it should not receive a retroactive construction at the hands of the court. Legislation which prejudicially affects vested rights or the legal character of past transactions will not be construed as retroactive unless it is declared so in the act, and the courts will give to such enactments a prospective, rather than a retroactive, construction, if possible. As was said by Mr Justice CLIFFORD in Twenty Per Cent. Cases, 20 Wall. 187: "Courts of justice agree that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of actions, or vested rights, unless the intention that it shall so operate is expressly declared, or is to be necessarily implied; and that, pursuant to that rule, courts will apply new statutes only to future cases, unless there is something in the nature of the case or in the language of the new provision which shows that they were intended to have a retroactive operation." This rule rests upon the presumption that the legislature does not intend what is unjust and oppressive, and therefore "every statute," it has been said, "which takes away or impairs vested rights acquired under existing laws, or creates new obligations, or imposes a new duty or attaches a new disability in respect to past transactions or considerations already past, must be presumed, out of respect to the legislature, to be intended not to have a retrospective operation." End.Interp.St. § 273. But this presumption against retrospective construction has no application to enactments which affect only the mode of procedure and practice of the courts. No person has a vested right in any form of procedure. He has only the right of prosecution or defense in the manner prescribed for the time being, and, if this mode of procedure is altered by statute, he has no other right than to proceed according to the altered mode. Indeed, the rule seems to be that statutes pertaining to the remedy or course and form of procedure, but which do not destroy all remedy for the enforcement of the right, are retrospective, so as to apply to causes...