McCormick v. Rusch

• Decision Date: 07 October 1863
• Citation: 15 Iowa 127
• Parties: MCCORMICK v. RUSCH
• Court: Iowa Supreme Court

15 Iowa 127

MCCORMICK v. RUSCH

Supreme Court of Iowa, Des Moines

October 7, 1863

Appeal from Scott District Court.

THIS action was commenced in October, 1862. Defendant, by his attorney, made the proper showing that he was in the actual military service of the United States, and moved for a continuance. Plaintiff resisted the motion, upon the ground that the statute authorizing such continuance was unconstitutional, and also because no plea or answer had been filed. He also moved for judgment for want of plea. This motion was overruled and the continuance granted. Plaintiff appeals.

Affirmed.

S. E Brown, for the appellant, contended: 1. That the statute is unconstitutional in this, that it impairs the obligation of contracts, and is special legislation. McCracken v Hayward, 43 U.S. 608, 2 How. 608, 11 L.Ed. 397; Rosiers v. Hale, 10 Iowa 487. 2. That the act does not contemplate a continuance before issue is joined.

H. R & E. Claussen, for the appellee, as to the first question presented in the argument of the counsel for the appellant, cited Morse v. Goold, 1 Kern. 281; Holmes v. Lansing, 3 John. C., 73; Read v. Frankfort Bank, 10 Shep. (Me.), 318.

Hon. CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, from December 7 to December 24, 1863. Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, from January 1, 1864, to the conclusion of the Term.^[*]

OPINION

WRIGHT, J.

I. We are satisfied that it was not necessary for the defendant to answer before obtaining the continuance. The statute is, "that in all actions now pending or hereafter brought in any of the courts of the State, * * it shall be a sufficient cause for a continuance, on motion of the defendant, his agent or attorney, if it shall be shown to the satisfaction of the court, * * * that the defendant is in the actual military service of the United States, or of this State, and upon such showing being made, said action shall stand continued during the actual continuance of said defendant in the military service." (Laws of 1862, ch. 109, § 1.) The theory of the statute is, that such defendants are necessarily absent, engaged in the service of their country; that, while thus situated, they should not be called upon to defend suits and actions brought against them at home; and to compel them to plead or answer, before asking a continuance, would frequently defeat the very object and purpose of the statute. We need do no more than suggest that the advice and assistance of the party are frequently absolutely necessary to the proper preparation of the pleadings, and the law provides for such continuances as much on account of such known necessity as to give him an opportunity of being present at the final trial. To say that until he pleads it is not known that he has a defense, and that unless he has some defense there is no necessity for a continuance, substantially begs the whole question. It is because, among other things, he is not in position to present this pleading, that the law secures him the continuance. To hold that he shall not have the benefit of a law, because he fails to do that which the law itself presumes him incapable of doing, would make the statute inconsistent, and defeat the very object proposed by the Legislature.

II. Is the statute unconstitutional, and if so, upon what grounds?

To the suggestion that it conflicts with § 6, art. 1, of our State Constitution, which provides that "All laws of a general nature shall have a uniform operation," we give but little weight. The provision was not intended to cover or reach any such case. In the first place, it may be doubted whether it is a law of a "general nature" within the meaning of the Constitution. This conceded, however, why is not its operation uniform? It gives the same rule to all persons, placed in the same circumstances. It does not prescribe one rule for one citizen or soldier, and another for his neighbor, if they are in the same situation. We have a statute regulating continuances on account of the absence of witnesses, which gives a uniform rule to all litigants. And yet one may be entitled to a continuance and another not. This results, not because a different rule is prescribed for each, but because one brings himself within its terms and the other does not. So all persons in the actual military service of the United States, or of this State, can claim the benefit of the statute, and any one can have the same benefit if in the service. Those that are not, are not entitled to the same advantage (so to speak), because, in the discretion land wisdom of the Legislature, it was deemed inexpedient. And yet this advantage may be, and is, extended to all upon the same terms. See Dalby v. Wolff and Palmer, 14 Iowa 228, and cases there cited.

But does this law impair the obligation of contracts, and is it, therefore, in conflict with § 10, art. 1, of the Constitution of the United States?

The inquiry here presented has been most elaborately discussed by the ablest legal minds of the nation, and is yet invested with very great difficulty. This difficulty results not so much from any ambiguity in the language used as from a seeming effort to make it mean more or less than was intended. And each new case but adds to the complication, and confirms the conviction, that upon no fair or consistent principle can the decisions be reconciled.

The language under consideration is, "No State shall pass any law impairing the obligation of contracts." The pivotal words, as applied to the present case, are, "impairing" and "obligation," the latter being the most important. On discussing this question, we find the following among other definitions: Justice WASHINGTON, in Ogden v. Saunders, 12 Wheat. 318: "The obligation of a contract is the law which binds the parties to perform their agreement." Justice THOMPSON: "It is the law which creates the obligation, and whenever, therefore, the lex loci provides for the dissolution of the contract in any prescribed mode, the parties are presumed to have acted subject to such contingency." Justice TRIMBLE: "It may be fairly-concluded that the obligation of the contract consists in the power and efficacy of the law which applies to and enforces performance of a contract, or the payment of an equivalent for its non-performance. The obligation does not inhere and subsist in the contract itself, proprio vigore, but in the law applicable to the contract. This is the sense, I think, in which the Constitution uses the term obligation." Chief Justice MARSHALL: "Obligation and remedy, then, are not identical; they originate at and are derived from different sources. It would seem to follow that the law might act upon the remedy without acting on the obligation." In Bronson v. Kinzie, 42 U.S. 311, 1 How. 311, 11 L.Ed. 143, it is said that: "Whatever belongs to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution." And in Sturges v. Orowninshield, 4 Wheat. 122, it is said: "The distinction between the obligation of a contract, and the remedy given by the Legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct."

Justice MCLEAN, in his dissenting opinion in Bronson v. Kinzie, supra, says: "The idea that the remedy attaches itself to the contract, so as to constitute a part of it, is too abstract for practical operations; every contract is entered into with a supposed knowledge, by the parties, that the law making power, may modify the remedy. And this it may do, at its discretion, so far as it acts only on the remedy."

Then in Gantly's Lessees v. Ewing, 44 U.S. 707, 3 How. 707, 11 L.Ed. 794, referring to the case of Bronson v. Kinzie, it is said to have been there held "that the right and a remedy substantially in accordance with the right were equally parts of the contract secured by the laws of the State where it was made, and that a change of the laws, imposing conditions and restrictions on the mortgagee in the enforcement of his right, and which effected its substance, impaired the obligation, and could not prevail; as an act directly prohibited could not be done indirectly." Says DENIO, J., in Morse v. Goold, 11 N. Y., 286: "The most obvious method by which a contract may be impaired by legislation, would be the alteration of some of its terms or provisions, so that, assuming the validity of the law, the parties would be relieved from something which they had contracted to do, or would be obliged to do something, which the contract did not originally require. * * It is admitted that a contract may be virtually impaired by a law which, without acting directly upon its terms, destroys the remedy, or so embarrasses it that the rights of the creditor under the legal remedies, existing when the contract was made, are substantially defeated. With this qualification the jurisdiction of the States over the legal proceedings of their courts is supreme." And after citing and quoting from a number of authorities, he says they " are exemplifications of the principle, that legal remedies are in the fullest sense under the rightful control of the legislatures of the several States, notwithstanding the provision in the Federal Constitution, securing the inviolability of contracts; and that it is no valid objection on that subject, that the substituted remedy is less beneficial to the...