OPINION
By the Court,
Batjer, J.:
The original action was filed in the district court to recover a judgment for a deficiency remaining upon a promissory note after a trustee’s sale of real property pursuant to the terms of a deed of trust.
The petitioner, the plaintiff in the court below, moved for summary judgment in the amount of the difference between the indebtedness at the time of sale and the proceeds of sale.
The defendants below opposed the motion and moved, pursuant to NRS 40.457(2) (Chapter 327, 1969 Statutes of
Nevada),
for the appointment of an appraiser, for the purpose of limiting the amount of the default judgment as provided in NRS 40.459.
The respondent district judge denied petitioner’s motion for summary judgment and granted the defendant’s motion for the appointment of an appraiser pursuant to the present law. He construed NRS 40.457(2) to apply to a promissory note secured by a deed of trust and executed before July 1, 1969,
the effective date of Chapter 327,1969 Statutes of Nevada, and that the legislation was not subject to the presumption limiting statutes to prospective application.
Chapter 327, 1969 Statutes of Nevada, does not contain any specific language to indicate that the legislature intended it to apply to any document relating to the sale of real property entered into prior to July 1, 1969, or that it was intended to receive retroactive application.
The petitioner, claiming no plain, speedy or adequate remedy in the ordinary course of law, and relying upon Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), has filed his petition for mandamus. Both parties agree that an order denying summary judgment is interlocutory and not a final judgment, and is not appealable.
The respondent, citing substantial authority [Greater Arizona Savings & Loan Ass’n v. Tang, 400 P.2d 121 (Ariz. 1965); Overmeyer v. Walinski, 222 N.E.2d 312 (Ohio 1966); and the dicta in Chappell & Co. v. Frankel, 367 F.2d 197 (CA 2, 1966)] contends at the outset, that mandamus may not be used to test a denial of a motion for summary judgment and requests us to summarily overrule Dzack v. Marshall, supra. This we decline to do.
In Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947), this court said: “While courts will indeed depart from the doctrine of stare decisis where such departure is necessary to avoid the ‘perpetuation of error’ (14 Am.Jur. 341), the observance of the doctrine has long been considered indispensable to the due administration of justice, that a question once deliberately examined and decided should be considered as settled.”
In Jensen v. Labor Council, 68 Nev. 269, 229 P.2d 908 (1951), this court quoted with approval from In re Burtt’s Estate, 353 Pa. 217, 44 A.2d 670, 677, 162 A.L.R. 1053, 1062: “Otherwise the law would become the mere football of the successively changing personnel of the court, and ‘the knowne certaintie of the law,’ which Lord Coke so wisely said ‘is the safetie of all,’ would be utterly destroyed.”
Courts are only justified in overruling former decisions where they are deemed to be clearly erroneous. Ex parte Woodburn, 32 Nev. 136, 104 P. 245 (1909).
Although it is apparently a minority view, the rule announced in Dzack v. Marshall, supra, that mandamus will lie when from the record it appears that it is the duty of the district court to enter summary judgment, has been, since 1964 the considered law of this state. It has a useful place in the scheme of justice by requiring careful consideration of motions for summary judgment. We find nothing in the arguments of counsel, nor in the cases cited by the respondent, to dissuade us. See Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964). See also Lippman v. Hunt, 227 N.W. 668 (Mich. 1929);
Bank of America National T. & S. Ass’n v. Superior Court, 4 Cd.App.3d 435, 84 Cal.Rptr. 421 (1970).
We now turn to consider whether, in the absence of legislative direction, Chapter 327, 1969 Statutes of Nevada, may be given application to a document relating to the sale of land executed prior to the effective date of that statute.
Early in the history of this court it wrestled with the problems inherent in the retrospective application of laws. In Milliken v. Sloat, 1 Nev. 481 (1865), this court noted: “Retrospective laws have been regarded from remote antiquity as odious and tyrannical, and they have been almost uniformly discountenanced by the courts of Great Britain and the United States.” Quoted Lord Bacon, “It is in general true that no statute is to have a retrospect beyond the time of its commencement.” Then went on to hold: “We are of the opinion that when a statute is silent as to past time and events, courts are bound to apply it only prospectively. (Citations omitted.) It may be further observed as a general rule, that a statute affecting rights and liabilities, should not be so construed as to act upon those already existing. To give it that effect the statute should in express terms declare such to be the intention.
It has continued to be the law of this state that statutes are presumed to operate prospectively and shall not apply retrospectively unless they are so strong, clear and imperative that they can have no other meaning or unless the intent of the legislature cannot be otherwise satisfied.
Before the enactment of Chapter 327, 1969 Statutes of Nevada, it was proper and appropriate to take a deficiency judgment for the difference between the amount of the judgment and the price bid, but from and after the effective date of that legislation, it became obligatory upon the court to ascertain the fair and reasonable market value of the encumbered premises at the date of sale and to deduct said sum from the amount due on the deficiency in order to ascertain the correct amount of the deficiency judgment.
The question to be decided is whether this change in the law constituted an impairment of the obligation of the promissory note and deed of trust. Here the argument about retrospective and prospective application of Chapter 327, 1969 Statutes of Nevada is purely academic.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
By the Court,
Batjer, J.:
The original action was filed in the district court to recover a judgment for a deficiency remaining upon a promissory note after a trustee’s sale of real property pursuant to the terms of a deed of trust.
The petitioner, the plaintiff in the court below, moved for summary judgment in the amount of the difference between the indebtedness at the time of sale and the proceeds of sale.
The defendants below opposed the motion and moved, pursuant to NRS 40.457(2) (Chapter 327, 1969 Statutes of
Nevada),
for the appointment of an appraiser, for the purpose of limiting the amount of the default judgment as provided in NRS 40.459.
The respondent district judge denied petitioner’s motion for summary judgment and granted the defendant’s motion for the appointment of an appraiser pursuant to the present law. He construed NRS 40.457(2) to apply to a promissory note secured by a deed of trust and executed before July 1, 1969,
the effective date of Chapter 327,1969 Statutes of Nevada, and that the legislation was not subject to the presumption limiting statutes to prospective application.
Chapter 327, 1969 Statutes of Nevada, does not contain any specific language to indicate that the legislature intended it to apply to any document relating to the sale of real property entered into prior to July 1, 1969, or that it was intended to receive retroactive application.
The petitioner, claiming no plain, speedy or adequate remedy in the ordinary course of law, and relying upon Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), has filed his petition for mandamus. Both parties agree that an order denying summary judgment is interlocutory and not a final judgment, and is not appealable.
The respondent, citing substantial authority [Greater Arizona Savings & Loan Ass’n v. Tang, 400 P.2d 121 (Ariz. 1965); Overmeyer v. Walinski, 222 N.E.2d 312 (Ohio 1966); and the dicta in Chappell & Co. v. Frankel, 367 F.2d 197 (CA 2, 1966)] contends at the outset, that mandamus may not be used to test a denial of a motion for summary judgment and requests us to summarily overrule Dzack v. Marshall, supra. This we decline to do.
In Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947), this court said: “While courts will indeed depart from the doctrine of stare decisis where such departure is necessary to avoid the ‘perpetuation of error’ (14 Am.Jur. 341), the observance of the doctrine has long been considered indispensable to the due administration of justice, that a question once deliberately examined and decided should be considered as settled.”
In Jensen v. Labor Council, 68 Nev. 269, 229 P.2d 908 (1951), this court quoted with approval from In re Burtt’s Estate, 353 Pa. 217, 44 A.2d 670, 677, 162 A.L.R. 1053, 1062: “Otherwise the law would become the mere football of the successively changing personnel of the court, and ‘the knowne certaintie of the law,’ which Lord Coke so wisely said ‘is the safetie of all,’ would be utterly destroyed.”
Courts are only justified in overruling former decisions where they are deemed to be clearly erroneous. Ex parte Woodburn, 32 Nev. 136, 104 P. 245 (1909).
Although it is apparently a minority view, the rule announced in Dzack v. Marshall, supra, that mandamus will lie when from the record it appears that it is the duty of the district court to enter summary judgment, has been, since 1964 the considered law of this state. It has a useful place in the scheme of justice by requiring careful consideration of motions for summary judgment. We find nothing in the arguments of counsel, nor in the cases cited by the respondent, to dissuade us. See Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964). See also Lippman v. Hunt, 227 N.W. 668 (Mich. 1929);
Bank of America National T. & S. Ass’n v. Superior Court, 4 Cd.App.3d 435, 84 Cal.Rptr. 421 (1970).
We now turn to consider whether, in the absence of legislative direction, Chapter 327, 1969 Statutes of Nevada, may be given application to a document relating to the sale of land executed prior to the effective date of that statute.
Early in the history of this court it wrestled with the problems inherent in the retrospective application of laws. In Milliken v. Sloat, 1 Nev. 481 (1865), this court noted: “Retrospective laws have been regarded from remote antiquity as odious and tyrannical, and they have been almost uniformly discountenanced by the courts of Great Britain and the United States.” Quoted Lord Bacon, “It is in general true that no statute is to have a retrospect beyond the time of its commencement.” Then went on to hold: “We are of the opinion that when a statute is silent as to past time and events, courts are bound to apply it only prospectively. (Citations omitted.) It may be further observed as a general rule, that a statute affecting rights and liabilities, should not be so construed as to act upon those already existing. To give it that effect the statute should in express terms declare such to be the intention.
It has continued to be the law of this state that statutes are presumed to operate prospectively and shall not apply retrospectively unless they are so strong, clear and imperative that they can have no other meaning or unless the intent of the legislature cannot be otherwise satisfied.
Before the enactment of Chapter 327, 1969 Statutes of Nevada, it was proper and appropriate to take a deficiency judgment for the difference between the amount of the judgment and the price bid, but from and after the effective date of that legislation, it became obligatory upon the court to ascertain the fair and reasonable market value of the encumbered premises at the date of sale and to deduct said sum from the amount due on the deficiency in order to ascertain the correct amount of the deficiency judgment.
The question to be decided is whether this change in the law constituted an impairment of the obligation of the promissory note and deed of trust. Here the argument about retrospective and prospective application of Chapter 327, 1969 Statutes of Nevada is purely academic. There is no attempt
upon the part of the trial court to give Chapter 327, 1969 Statutes of Nevada retrospective effect. It is being applied to a deficiency occurring as a result of a trustee’s sale held after the effective date of the statute. The only retrospective aspect arises from the fact that the promissory note and the deed of trust were executed prior to the effective date of the statute and may for that reason affect rights already in existence. Although the petitioner contends otherwise, the only real question is whether the statute violates the contract clauses of the Federal Constitution
and the Nevada Constitution.
This question was squarely presented to the United States Supreme Court in Gelfert v. National City Bank, 313 U.S. 221 (1941). Justice Douglas, delivering the opinion of the court, traced the history of the control of judicial sales of realty by the courts of equity and by legislatures,- and the High Court went on to say: “The formula which a legislature may adopt for determining the amount of a deficiency judgment is not fixed and invariable. That which exists at the date of the execution of the mortgage does not become so embedded in the contract between the parties that it cannot be constitutionally altered. As this Court said in Home Bldg. & L. Ass’n v. Blaisdell, 290 US 398, 435 L ed 413, 427, 54 S Ct 231, 88 ALR 1481, ‘Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.’ (Citations omitted.) It is that reserved legislative power with which we are here concerned. Mortgagees are constitutionally entitled to no more than payment in full. Honeyman v. Jacobs, 306 US 539, 83 L ed 972, 59 S Ct 702. They cannot be heard to complain on constitutional grounds if the legislature takes steps to see to it that they get no more than that. As we have seen, equity will intervene in individual cases where it is palpably apparent that gross unfairness is imminent. . . . But there is no constitutional reason why in lieu of the more restricted control by the court of equity the legislature cannot substitute a uniform comprehensive rule designed to reduce or to avoid in the run of cases the chance that the mortgagee will be paid more than once.”
The petitioner relies upon a line of California cases and in particular Ware v. Heller, 148 P.2d 410 (Cal.App. 1944), to
support his position that we should only be concerned with the question of the prospective and retrospective application of Chapter 327, 1969 Statutes of Nevada, and should ignore the question of the constitutionality of the legislation.
In Ware v. Heller, supra, that court said: “. . . In spite of the fact that the two points are frequently confused into one, the question of the constitutionality of retroactive legislation and the question of the intention of the legislature to make a statute retroactive are distinct questions. The latter question is not a federal one, but one of interpretation of a state statute, on which the decisions of the state courts are controlling. So it is that those cases which hold that the legislature revealed no intention of making section 580a retroactive, and therefore it has no application to actions on notes which are dated prior to 1933, retain their authority, whatever may be said of the controlling authority of the Gelfert case on the constitutional question.”
Although we agree that the question of retrospective application of a statute is a state court problem and that the court deciding Ware v. Heller, supra, was obligated to follow the precedent in that jurisdiction, we do not choose
to take
such a narrow view.
The case of Gelfert v. National City Bank, supra, is directly in point, and we choose to follow it. To the same general effect see Richmond Corp. v. Wachovia Bank, 300 U.S. 124 (1937). See Alliance Trust Co. v. Hill, 164 P.2d 984 (Okla. 1945).
The wording of the Nevada Constitution and that of the Federal Constitution are substantially the same. We therefore conclude that Chapter 327, 1969 Statutes of Nevada, does not impair the obligation of the promissory note and deed of trust under either the State or Federal Constitution in the case of a foreclosure occurring after the effective date of the statute.
The application for a writ of mandate is denied.
Zenoff, C. J., Mowbray, Thompson, and Gunderson, JJ., concur.