State ex rel. Osage Cnty. Sav. & Loan Ass'n v. Worten

• Citation: 167 Okla. 187,29 P.2d 1,1933 OK 545
• Decision Date: 17 October 1933
• Docket Number: Case Number: 24681
• Parties: STATE ex rel. OSAGE COUNTY SAVINGS & LOAN ASS'N v. WORTEN, Dist. Judge.
• Court: Oklahoma Supreme Court

1933 OK 545

29 P.2d 1

167 Okla. 187

STATE ex rel. OSAGE COUNTY SAVINGS & LOAN ASS'N v. WORTEN, Dist. Judge.

Case Number: 24681

Supreme Court of Oklahoma

Decided: October 17, 1933

Syllabus

¶0 1. Statutes--Proceedings Begun by Virtue of Statute not Affected by Repeal of Statute Expressed or Implied.

The provision of section 54, art. 5, of the Constitution of Okla. that the repeal of a statute shall not affect any proceedings begun by virtue of such repealed statute, applies whether the repeal be expressed or implied, the purpose of the provision being to require an action to pass to judgment under the law applicable thereto at the time of the institution of the action unaffected by any change in the law made after the institution of the action.

2. Same--Mortgages--Mortgage "Moratorium Law" Held not to Affect Foreclosure Proceedings Pending When Law Became Effective.

Senate Bill No. 76 of the Fourteenth Legislature of Oklahoma, chapter 16, Session Laws of 1933, does not affect proceedings for the foreclosure of real estate mortgages begun prior to the effective date of that legislative enactment and pending on that date, notwithstanding the provisions of the legislative enactment to the contrary.

3. Same--Law Held Unconstitutional as to Pending Foreclosure Proceedings.

In so far as Senate Bill No. 76 of the Fourteenth Legislature of Oklahoma, chapter 16, Session Laws of 1933, purports to change the procedure in a proceeding pending at the time of the effective date thereof, it is ineffective, unconstitutional, and void.

Original proceeding for a writ of mandamus by the State ex rel. Osage County Savings & Loan Association against Jesse J. Worten, Judge of District Court of Osage County. Writ granted.

Hamilton & Howard, Massingale, Duff & Manatt, Kleinschmidt & Johnson, William H. Martin, Albert H. Bell, Arden E. Ross, Yancey, Spillers & Brown, Hess Crossland, Orr & Rust, and Hunt & Eagleton, for plaintiff in error.

Conner & Conner and Claude Nowlin, for defendant in error.

ANDREWS, J.

¶1 This is an original proceeding in this court for a writ of mandamus by the Osage County Savings & Loan Association against Jesse J. Worten, judge of the district court of Osage county, state of Oklahoma.

¶2 It appears from the record that the plaintiff herein instituted an action in the district court of Osage county against Albert Holder and other persons for the recovery of a money judgment on a certain promissory note and for the foreclosure of a real estate mortgage given as security for the amount evidenced by that note; that summons was regularly served upon the defendants therein, notifying them to answer on or before the 17th day of February, 1933; that no answers were filed and no appearances made by any of those defendants; that on March 7, 1933, Senate Bill No. 76 of the Fourteenth Legislature (chapter 16, Session Laws of 1933) became effective; that on May 8, 1933, the plaintiff therein filed in the district court a written motion for judgment by default and offered to produce evidence in support of his petition, and that the defendant herein, the judge of the district court of Osage county, Okla., refused to hear said evidence and to render judgment by default on account of the act of the Legislature, supra.

¶3 There are many contentions made herein. However, it is necessary herein to decide only one question, which is whether or not the procedure provided by the legislative enactment, supra, is applicable to a proceeding pending at the time of the effective date thereof.

¶4 The action in the district court of Osage county was commenced by the filing of a petition and service of a valid summons, and that action was pending at the time of the effective date of the legislative enactment, supra.

¶5 The provisions of section 54, art. 5, of the Constitution are as follows:

"The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute."

¶6 That constitutional provision is in derogation of common law. In State ex rel. Atty. Gen. v. McCafferty, Co. Treas., 25 Okla. 2, 105 P. 992, this court said:

"To mitigate this harsh rule of the common law this general saving clause was preserved in our Constitution, and is a part of every act passed by our Legislature, as much so as if expressly written in the act. The part of it under discussion simply means that proceedings begun by virtue of such repealed statute,' instead of being dismissed by the court for want of jurisdiction after the repeal of that law, as under the common law, shall be by the court retained, and pass to judgment unaffected by the repealing act so far as the proceedings' are concerned; that is, the proceedings', which are defined to mean all the steps or measures adopted in the prosecution or defense of an action', shall not be affected, but, as stated, the court shall continue to entertain jurisdiction and proceed to judgment in the cause. John C. Gordon, Probate Judge, v. State of Kan. ex rel. Henry Boder, 4 Kan. 421; Main Street, etc., Co. of Horton v. Horton Hardware Co., 56 Kan. 448, 43 P. 769; Joseph L. Crawford v. David P. Shaft, 35 Kan. 478, 11 P. 334; Charles Jockers v. Mary Borgman, 29 Kan. 78, 44 Am. Rep. 625."

¶7 It will be noted that therein "proceedings" were defined as "all steps or measures adopted in the prosecution or defense of an action." In Harlow v. Board of Co. Comm'rs of Payne County, 33 Okla. 353, 125 P. 449, the constitutional provision was applied to a pending proceeding. The decision of this court in that case was summarized in a decision of this court in Gayman, Co. Treas., v. Mullen, 58 Okla. 477, 161 P. 1051, in which it was said:

"In Black's Law Dictionary the word proceeding' is defined as follows:

" In a general sense, the form and manner of conducting judicial business before a court or judicial officer; regular and orderly progress in form of law,' etc. (The emphasis is ours.)

"And, although the question does not appear to have been heretofore discussed by this court, in the case of Harlow v. Board of Commissioners of Payne County, 33 Okla. 356, 125 P. 449, this court held that a proceeding to construct a bridge nearer than six miles to another bridge in contravention of the act of March 11, 1903 (Laws 1903, p. 246), as amended by the Act of March 10, 1905 (Laws 1905, p. 354, being section 7885, Comp. Laws 1909), in respect to the distance between bridges, being without authority and subject to be enjoined, was not legalized nor affected by the Act of February 17, 1911 (Laws of 1911, p. 41), repealing the provision of prior laws so contravened because of this provision of our Constitution. In that case a temporary injunction was granted to prevent the county commissioners from entering into and carrying out a contract of construction of a certain bridge over a river within six miles of another bridge upon the erroneous view that such bridges were farther apart; and from an order dissolving that injunction, before the Act of February 17, 1911, this case was brought to this court for review, where it was revered upon the grounds that the distance between the bridges was less than six miles and the proposed bridge was within the inhibition of the prior statute, with the statement in the body of the opinion that the proceeding was not affected by the Act of February 17, 1911, repealing the inhibition because of the provision of the Constitution now under consideration."

¶8 The issue in Gayman, Co. Treas., v. Mullen, supra, was whether or not viewers had been properly appointed in a drainage proceeding. With reference thereto this court said:

"We think this change in the method and manner of selecting viewers, being in a mere matter of procedure and not in any matter of rights, does not affect the proceeding begun by virtue of the repealed statute in this respect, and that the report of the viewers appointed and acting under the old statute on the fourth day after the new statute went into effect was as valid as if there had been no change in the former statute."

¶9 In Green v. Board of Comm'rs of Lincoln County, 126 Okla. 300, 259 P. 635, the record showed that the board of county commissioners, by resolution and notice, had caused an election to be called at which county bonds for road improvements were to be voted upon.

¶10 On the afternoon of the day on which the election was held, after most of the votes in question had been cast, the Governor approved an emergency measure passed by the Legislature which, in the language of this court, "amends or repeals the law under which the bonds are voted." This court held that the proceedings had been commenced prior to the enactment of the new statute and that the proceedings having been commenced under the law as it existed prior to the new statute, those proceedings were governed entirely by the law existing prior to the effective date of the new statute. That decision was based on the decision in Gayman, Co. Treas., v. Mullen, supra, and the decision of this court in Re Application of State to Issue Bonds, 40 Okla. 145, 136 P. 1104. In the latter case it was held:

"The omission of sections 372 to 381, Compiled Laws of 1909, from the Revised Laws of 1910, does not operate to abate a proceeding pending under said sections prior to the date when said Revised Laws of 1910 went into effect."

¶11 It was therein held that a proceeding to fund outstanding indebtedness was a proceeding within the meaning of the constitutional provision. The court said:

"This proceeding being one begun prior to the date when the act of adoption went into effect, and being for the purpose of procuring an issue of bonds, it comes within the letter of the statute, as a proceeding begun and pending, as a necessary step in a bond issue authorized by the omitted act. The bond issue can only be saved by saving the proceeding provided for that purpose. It follows that the

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