County of Kossuth v. Wallace

15 N.W. 305, 60 Iowa 508

Opinion

Day, Ch. J.

Section 1873 of the Code, which was in force at the time the mortgage in question was executed, provides that in suits to foreclose a school-fund mortgage “the court shall give the plaintiff, as a part of the costs, such an amount as will be a sufficient compensation for the plaintifi’s attorney in the case.”

By an act of the Eighteenth General Assembly, which took effect by publication on the 3d day of March, 1880, this section was amended by adding the following: “But in no case to exceed ten per cent on the amount for which judgment is rendered; and in no case to exceed the sum of twenty-five dollars.” Chapter 12, Laws Eighteenth General Assembly, section 5. The appellant contends that this provision cannot apply to a school-fund mortgage executed prior to its passage, as it would, if allowed such application, impair the obligation of contracts. The change in the statute pertains to a mere question of costs, and prescribes a limit which the court shall not * transcend in the assessment of costs. The change, we think, does not impair the obligation of the contract, but merely affects the remedy. Statutes may constitutionally be enacted changing the remedy existing when the contract was made, if they preserve the existing remedies in substance, and with integrity, and do not destroy or embarrass the remedies existing when the contract was made, so as substantially to defeat the rights of the creditor. See McCormick, v. Rusch, 15 Iowa, 127. We think it cannot be claimed that a law merely limiting the amount of costs recoverable so affects the remedy as substantially to defeat the rights of the creditor. In our opinion, a negative answer must be returned to the question certified for our determination.

Aeeirmed.