Weekes v. Rumbaugh

• Decision Date: 07 January 1944
• Docket Number: 31631.
• Citation: 12 N.W.2d 636,144 Neb. 103
• Parties: WEEKES v. RUMBAUGH et al.
• Court: Nebraska Supreme Court

12 N.W.2d 636

144 Neb. 103

WEEKES v. RUMBAUGH et al.

No. 31631.

Supreme Court of Nebraska

January 7, 1944

Syllabus by the Court.

1. Every legislative act comes before this court surrounded with the presumption of constitutionality and this presumption continues until the act under review clearly appears to contravene some provision of the constitution.

2. In order for this court to consider the question of the constitutionality of a statute, it must first be raised and placed in issue in the trial court.

3. Payment of interest is a "partial payment" within the provisions of Section 20-202, Comp.St.1929, barring partial payments from tolling or extending the 10 year limitation period for mortgage foreclosure.

A. F. Alder, of Taylor, and Munn & Norman, of Ord, for appellant.

Julius D. Cronin, of O'Neill, and B. A. Rose, of Burwell, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, CHAPPELL, and WENKE, JJ., and POLK and NUSS, District Judges.

NUSS District Judge.

This action was commenced by appellee on April 11, 1942, to foreclose a mortgage executed and delivered on November 12, 1926, and filed on November 23, 1926. By its terms the mortgage was due on November 3, 1929, but interest had been paid thereon November 24, 1933, to November 3, 1933. The original mortgage was never refiled nor was a copy thereof ever filed. On May 15, 1940, the defendant, appellant here, bought the land in question for value. Since more than ten years elapsed after the maturity of the mortgage debt before the action was brought the defendant claimed the action was barred by the statute of limitations, specifically Section 20-202 Comp.St.1929. The trial court ruled against defendant and he appealed.

The mortgage was by its terms due on November 3, 1929. It was therefore barred on November 3, 1939, and the defendant below acquired good title, relieved of the lien of the mortgage, by his purchase for value on May 15, 1940, unless the period of limitation was postponed, extended or tolled by the payment of interest on November 24, 1933. The defendant claims that the amendment of 1925 (Laws 1925, Ch. 64) to Section 6 of the code of civil procedure, Section 20-202, Comp.St.1929, did so bar the mortgage and the lien and that he acquired a title therefor free and relieved of the said lien.

The plaintiff on the other hand contends that under the decision of this court in Steeves v. Nispel, 132 Neb. 597, 273 N.W. 50, the amendment of 1925 was invalidated or circumscribed so that the payment of interest tolled the ten year period. There is no allegation that the amendment of 1925 was or is unconstitutional, nor is it claimed that the Nispel case so held. The amendment is therefore presumed to be constitutional. "The basic principle which underlies the entire field of legal concepts pertaining to the validity of legislation is that by enactment of legislation, a constitutional measure is presumed to be created. In every case where a question is raised as to the constitutionality of an act, the court employs this doctrine in scrutinizing the terms of the law. In a great volume of cases the courts have enunciated the fundamental rule that there is a presumption in favor of the constitutionality of a legislative enactment." 11 Am.Jur. 776, sec. 128.

In State v Adams Express Co., 85 Neb. 25, 122 N.W. 691, 693, 42 L.R.A.,N.S., 396, it is said: "In making the investigation we start with the presumption that the statute in question is a valid and constitutional exercise of legislative power. Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 395, 14 S.Ct. 1047, 38 L.Ed. 1014; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932 . The concurring opinion of Field, J., in Ruggles v. Illinois, 108 U.S. 526, 541, 2 S.Ct 832, 27 L.Ed. 812; State v. Fremont, E. & M. V. R. Co., 22 Neb. 313, 35 N.W. 118; Davis v. State, 51 Neb. 301, 70 N.W. 984. In the case last cited the rule is well stated as follows: 'Every legislative act comes before this court surrounded with the presumption of constitutionality, and this presumption continues until the act under review clearly appears to contravene some provision of the Constitution."'

The burden of proof of the invalidity of any statute is therefore upon the one so claiming. "In consequence of the general presumption in favor of the validity of acts of the legislature and the desires of the courts in resolving all doubts in favor of their validity, the rule has become established that courts will not search the constitution for express sanction or for reasonable implication to sustain a legislative enactment; the successful assailant must be able to point out the particular provision that has been violated and the ground on which it has been infringed." 11 Am.Jur. 795, sec. 132, and many cases cited.

The question relative to the constitutionality of the act must be presented to the trial court else it cannot be considered by this court. Howarth v. Becker, 128 Neb. 580, 259 N.W. 505; State v. Knudtsen, 121 Neb. 270, 236 N.W. 696; Mergenthaler Linotype Co. v. McNamee, 125 Neb. 71, 249 N.W. 92. In the first two cases above cited this court applied the rule notwithstanding that the person claiming the invalidity of the statute was successful in the district court. Thus in the case of Howarth v. Becker, supra [128 Neb. 580, 259 N.W. 506], it was said:

"The appellee contends that the trial court rightfully denied the application for two reasons, first, that the Moratory Act, section 20-21, 159, Comp.St.Supp.1933, is unconstitutional ***.

"We have carefully examined the record in this case and we fail to find that the unconstitutionality of section 20-21, 159, Comp.St.Supp.1933, was pleaded or presented to the trial court for determination. This court has consistently held that in order for this court to consider the question of the constitutionality of a statute, it must first be raised and placed in issue in the trial court. First Trust Co. v. Glendale Realty Co., 125 Neb. 283, 250 N.W. 68; Bell v. Niemann, 127 Neb. 762, 257 N.W. 69. We therefore hold that the question whether the Nebraska Moratory Act violates the Nebraska Constitution is not determinable in this court on this appeal for the reason that it was not presented to the district court in this case."

For the foregoing reasons any question relative to the constitutionality of the amendment of 1925 cannot be considered, and this court must presume for the purpose of this proceeding, that the amendment is valid and constitutional.

The question then arises as to the proper consideration to be given to the amendment in question. It is entirely clear, as established by an overwhelming array of authorities, that the cardinal principle of construction or interpretation of a statute is to arrive at and give effect to the intention of the legislature. 25 R.C.L. 960. City of Lincoln v. Nebraska Workmen's Compensation Court, 133 Neb. 225, 274 N.W. 576; Kearney County v. Hapeman, 102 Neb. 550, 167 N.W. 792.

Since the act in question is clearly remedial it is well to call attention to several other pertinent rules, to-wit: "In construing a remedial statute three things must be considered, viz., 'the old law, the mischief and the remedy."' Clother v. Maher, 15 Neb. 1, 16 N.W. 902. See also City of Lincoln v. Nebraska Workmen's Compensation Court, supra. Further, a remedial statute is to receive a liberal construction to carry into effect the purposes for which it was enacted. City of Lincoln v. Nebraska Workmen's Compensation Court, supra; State v. Fremont, E. & M. V. R. Co., 22 Neb. 313, 35 N.W. 118; Becker & Degen v. Brown, 65 Neb. 264, 91 N.W. 178. And that a statute of doubtful meaning should be construed, if reasonably possible, so as to carry out the purpose and intention of the legislature, and when this purpose is manifest it will prevail over a seeming conflict in the language. City of Lincoln v. Nebraska Workmen's Compensation Court, supra. State v. Ure, 91 Neb. 31, 135 N.W. 224.

With these rules in mind we proceed to a discussion of the law in question. Prior to the amendment of 1925 (Laws 1925, Ch. 64) to Section 6 of the code of civil procedure, that section provided that an action for the recovery of the title or possession of lands, tenements or hereditaments, "or for the foreclosure of mortgages thereon", could only be brought within ten years after the cause of action shall have accrued. Sec. 8507, Comp.St.1922. By construing the above section with certain other sections, as this court held in Teegarden v. Burton, 62 Neb. 639, 87 N.W. 337, and McLaughlin v. Senne, 78 Neb. 631, 111 N.W. 377, should be done, the ten year period was extended under Section 22 of the code (Sec 8522, Comp.St.1922) by part payment, written acknowledgment of debt or promise to pay. It was likewise postponed by Section 7 of the code, (Sec. 8518, Comp.St.1922)...