Wittes v. Repko

• Citation: 151 A. 850
• Decision Date: 20 October 1930
• Docket Number: No. 35.,35.
• Parties: WITTES v. REPKO et al.
• Court: United States State Supreme Court (New Jersey)

151 A. 850

WITTES

v. REPKO et al.

No. 35.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1930.

Syllabus by the Court.

Statutes are to be considered prospective only, unless the language is such as to show clearly that they were intended to have a retrospective effect

Syllabus by the Court.

The clause in the amendment of 1928 (P. L. p. 382) to section 49 of the Tax Sale Act of 1918 (P. L. p. 883, 897), which provides that no application (to open a final decree of statutory foreclosure under that act) shall be entertained after three months from the date thereof, and then only upon the ground of lack of jurisdiction or fraud in the conduct of the suit, held to be prospective in its operation, and no bar to the opening of a decree made prior to its enactment, notwithstanding a further provision that the amended section shall be liberally construed as remedial legislation to encourage barring of the right of redemption, etc.

Appeal from Court of Chancery.

Suit by Anna Wittes against Michael Repko and others. From an interlocutory order and final decree advised by the Vice Chancellor (147 A. 498, 105 N. J. Eq. 241), plaintiff appeals.

Affirmed.

Irving Riker, of Newark, for appellant.

Thomas F. Meaney, of Jersey City, for respondents.

PARKER, J.

With respect to the intrinsic merits of the application to open the apparent default of respondents in the suit, and for leave to redeem, we are in accord with the views expressed by the learned Vice Chancellor, and think further discussion needless. But on the phase of the case relating to the force and effect of the amendment of 1928, P. L. p. 382, to section 49 of the Tax Sale Act of 1918, we prefer to rest our affirmance of the decree on the application of the fundamental rule that a statute is to be considered prospective unless the language is such as to show clearly that it was intended to have retrospective effect.

The chronology of the case, so far as material to the point now under consideration, is this: The original final decree, purporting to foreclose the owners' rights, was dated May 5 and filed May 6, 1927. At that time section 49 of the Tax Sale Act of 1918, P. L. 883, 897, as amended by P. L. 1919, p. 564, was in force, and contained no limitation of time for an application to open the decree. The amendment of 1928, P. L. 382, to section 49, which is relied on by the appellant, was approved April 3, 1928. The petition by respondents to open the decree of May 6, 1927, was filed April 19, 1928, a little over two weeks after the act of April 3 took effect. That act provides, among other things, that the decree "shall be final upon the defendants, their ancestors and predecessors in title, and the privies, and no application shall be entertained to reopen the same after three months from the date thereof and then only upon the grounds of lack of jurisdiction or fraud in the conduct of the suit." And in another paragraph:

"This provision shall be liberally construed as remedial legislation to encourage the barring of the right of redemption by suits in the Court of Chancery and for the decreeing of marketable titles therein, and to discourage barring the right of redemption by act of the purchaser in serving notices to redeem and filing and recording the proceedings as otherwise provided."

If the claim of appellants be well founded, it must follow that, to say the least, whenever the decree had been pronounced not more than three months before the statute, the pre-existing right to apply to open it was cut off at the expiration of that three months; as for example, if the decree had been signed on January 4, the act taking effect (in retrospect) April 3 would bar an application unless made the day after its passage; and where, as in this case, the decree was signed May 5, 1927, the right of application, if not cut off as of August 5, 1927, was cut off instanter when the statute took effect. Such an effect is, to say the least, startling; and we are clear that the Legislature never intended anything of the kind.

The decisions holding that a statute will not be construed as retrospective unless its language or object clearly so indicates, are so numerous that a few of the more important ones will suffice as examples.

In White v. Hunt, 6 N. J. Law, 415, 418, 419, a statute of 1782 imposed certain restrictions on the recovery of costs. While this act was in force, a suit was begun, and continued over until after the passage of another act of 1795, which changed this "in all actions of this nature, commenced or to be commenced." The Supreme Court held that even this language was ambiguous, and would not construe it to apply to an action begun before the act of 1795 (Paterson's Laws 1800, p. 149) was passed.

In Vreeland v. Bramhall, 39 N. J. Law, 1, plaintiff in mechanic's lien sought to amend the lien claim, relying on section 14 of the act as revised in 1874, Revision 1877, p. 671. The claim had been filed in 1873. The court refused to amend it, Chief Justice Beasley saying: "The general principle of statutory construction is averse to giving laws a retrospective effect, and the consequence is, such force is never ascribed to any act unless an...