Kometscher v. Wade

128 N.W.2d 781, 177 Neb. 299, 1964 Neb. LEXIS 92

• Court: Nebraska Supreme Court
• Decided: June 5, 1964
• Docket: 35618
• Status: Published

Opinions

Spencer, J.

. This- action involved a conditional sale? contract on a house trailer purchased by Martin Kometscher and Jeanne Kometscher, plaintiffs, hereinafter referred to as such, from Ted Wade, doing business as Ted’s Mobile Homes, and assigned to Mobile Home Finance Company, a corporation, defendants. The trial court found the contract to be usurious, declared the note and contract void and uncollectible, ordered the defendants to deliver the certificate of title to the plaintiffs, and rendered a judgment against the defendants in the amount of $378.60.

Defendant Mobile Home Finance Company, a corporation, hereinafter referred to as defendant, perfected an appeal to this court. Subsequent to the filing of the appeal, defendant filed a motion for extension of brief day, supported by an affidavit indicating that it intended to restrict the issues of the appeal to the effect and validity of remedial legislation passed by the Seventy-fourth (Extraordinary) Session of the Legislature of Nebraska, 1963, and specifically Legislative Bills 16 and 17. Defendant’s brief is restricted to these issues.

Plaintiffs challenged the right of the defendant under our rules to abandon its objection to the finding of the trial court on the evidence adduced and to perfect its appeal solely on the basis of the new legislation. Under Rule 8a 2 (4) of the Revised Rules of the Supreme Court, 1963, only assignments of error urged in the trial court will be considered in this court. We are dealing here with a special situation which constitutes an exception to the rule. Legislation affecting the merits of a controversy adopted subsequent to a trial in the district court dealing with a subject matter with which the Legislature has the power to act retroactively is an exception to the requirement that only assignments of error assigned in the trial court may be inquired into in this court.

Plaintiffs argue also that a case in Nebraska must be determined on the law as it stands when the judgment of the lower court is rendered therein. On the general proposition, we can say generally that while courts appear to have reached different conclusions concerning the validity of curative statutes which impair judgments, the recent decisions indicate that the apparent disagreement can be almost entirely eliminated by making a distinction between public and private rights. 30A Am. Jur., Judgments, § 7, p. 165. There is no question but that plaintiffs’ position is correct if vested rights are involved. The question, therefore, is whether plaintiffs’ rights are contractual or penal.

In the early case of Kleckner v. Turk, 45 Neb. 176, 63 N. W. 469, we held that a liability imposed as a consequence of the doing or the omission to do an act which is not measured by any injury flowing from the act or omission is in the nature of a punishment. A statute, therefore, which imposes such a liability in effect inflicts a penalty and is of a penal character. The penal character of the remedy herein is fully discussed in Davis v. General Motors Acceptance Corp., 176 Neb. 865, 127 N. W. 2d 907, in which we held usury statutes are generally held to be penal in nature and subject to amendment or repeal by retroactive legislation.

Since the submission of the case herein, L. B. 16, Laws 1963, Special Session, chapter 8, page 98, has been determined to be special legislation and in violation of Article III, section 18, Constitution of Nebraska, and therefore unconstitutional. Davis v. General Motors Acceptance Corp., supra. L. B. 16, therefore, will not be discussed further herein.

L. B. 17, Laws .1963, Special Session, chapter 9, page 103, which amends the penalty sections of the Installment Loan Act, was held to be valid and constitutional and to be applicable to all loans which are subject to the Installment Loan Act, except where an action on such loan has been reduced to final judgment. Davis v. General Motors Acceptance Corp., supra.

On this latter point, L. B. 17 specifically provides as follows: “Sec. 5. Except as to those transactions on which.an. acfipn at law .pr in-..equity ha? ..been, ¡reduced tP; a-finalj udgment as- of the effective.date, of this act, the. .penalty, ¡proyisipns of section 45-137, Reissue, Revised Statutes, ofrNebraska, 1943,-.as -amended .by'Legislative Bill ■ 51,5,;ena,cted ,by; the:.Seventy-third- Session, ’of.-the Legislature of .Nebraska and .as further amended by this act -and the..penalty provisions of sections 45-138,. 45-154 . ;ancl; .45-155, Reissue Revised Statutes of Nebraska, 1943,. as .amended by this act/ shall.apply;to ail,.transactions made prior to the, effective date of this, act.” ■ L. B. 17 ;became effective November, 15, 1963. ..Judgment herein was .rendered in the. district , court July 18, 1963. Motion for . a- new trial was overruled August ..2, .1963, and -the. action- was pending in . this court, on appeal on November.15,,.1963. .

Inasmuch as .many, of , the issues raised-by. the parties herein have-, been exhaustively, discussed. in- Davis v. General-, Motors Acceptance Corp., supra} we .concern oprselves in-.,this opinion only :with two narrow problems. Has the action herein been-reduced to final: judgment,; and- if not;, is the new law applicable because the action of, the -Legislature-took plaqe after-judgment-was •rendered, in the district court and while the appeal was pending' im-this; court? We will consider.them in reverse order;;

¡There is some disagreement as to what law should be applied where' judgment has been rendered in a. court of original jurisdiction. and is pending.in an, appellate court on appeal when a change is made in the law. There seems, however, -to be . very little disagreement - as to what law should be-applied, where penalties are involved, as noted -in the following found at page 1332 of an Annotation-in 111 A. L. R. 1317: “Although there is some authority to the contrary (Taylor v. Rushing (1829) 2 Stew. (Ala;) 160; Dunham v. Anders (1901), 128 N. C. 207, 38 S. E. 832, 83 Am. St. Rep. 668), by the great weight of authority, in case of a change .of law, providing Nor-civil-penalties :;(^^ is-also the rule-in case of change,of criminal .law, not within the scope of the ,an; notation),. the rule generally ¡adopted is-, that f-henppelr late, .court will determine the question on appeal, accprdihg-. to the .law. prevailing at the. time .of ..the -decision on appeal,., and not. according to the law. prevailing at the time qf . the rendition of thé judghient, appealed, from.-’’ (Citing., cases.) '

, In 5 Am. Jur.- 2d, .Appeal and Error, § 729, p. 173, we find tbie following: “Where, the controlling, lay 'has changed.between.the entering of the decision-beloy and the..consideration of the ¡matter, qn .appeal- it has been said-that the. case-should-he determined..in .the light of the current law, as it existed at time of the- -appellate decision, at least, where, the- change in .the. law wa.s ¡intended-.to-be-retroactive.”-, • .4 ..............

-Where .the .Legislature .has the. right,to, act .retroactively, the law appears to be-settled in Nebraska. . If. it desires to do so, it may apply the , legislation, to cases pending on appeal. . In City of Beatrice v. Gage County, 130 Neb. 850, 266 N. W. 777, we said as follows: “Therq is a much older case decided in 1801, by John Marshall, C. J., and entitled United States v. Schooner Peggy, 1 Cranch (U. S.) *103, 2 L. Ed. 49,. which concerns the small Schooner. Peggy, ..nayigated ,.by ten men, which ran, ashore on, the .island ruled by General Toussajnt L’Ou-verture,' and .was- there, captured by. an American vessel as a-prize and condemned . as. forfeited,,, onq-haíf to the use of-the United-States and the other hqlf to the officers and men of the armed vessel Trumbull. Before -the. supreme court- of. the United, States .gave judgment, on the.writ of.error, a treaty was. entered into with France on December 21,1801, which provided that property not yet. definitely, condemned- should, be mutually, .restored. . Chief Justice Marshall .held that-, .the property, had not, been.- definitely, condemned, since tliq judgment- of, condemnation had been appealed from .and was- undecided ,at the time when, the treaty ..topic .effect; that, 'therefore, the property -should -‘be.restored, tHe chief justice holding: ‘It is, in the general, true that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. * * * In such a case, the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed, but in violation of law, the judgment must be set aside.’ See Lovelace v. Boatsman, 113 Neb. 145, 202 N. W. 418; Kleckner v. Turk, 45 Neb. 176, 63 N. W. 469.”

There is no question but that the Legislature as to penalty provisions had the right to provide that L. B. 17 would be effective as to cases pending on appeal. The question then is not what the Legislature could lawfully do, but what it actually did do in L. B. 17.

It is the plaintiffs’ contention that the Legislature, in using the term “final judgment” used it in its generally accepted sense, which in this case would mean a judgment disposing of the merits, of the controversy, between the parties in the court of original jurisdiction. This, in a strict legal sense, appears to be the universally accepted meaning of the term. A final judgment is one which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for. 3 Blackstone Comm. 398.

The rule announced by the United States Supreme Court, unless the context of the act requires otherwise, is as follows: “The rule is well settled and of long standing that a judgment or decree to be final * * * must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but execute the judgment or decree it had already rendered.” Bostwick v. Brinkerhoff, 106 U. S. 3, 1 S. Ct. , 27 L. Ed. 73. See, also, LaBourgogne, 210 U. S. 95, 28 S. Ct. 664, 52 L. Ed. 973.

A final judgment is one that disposes of the merits of the case in the court of original jurisdiction. See, Nelson v. Brown, 59 Vt. 600, 10 A. 721; Frank P. Miller Paper Co. v. Keystone Coal & Coke Co., 275 Pa. 40, 118 A. 565; Sanders v. May, 173 N. C. 47, 91 S. E. 526; Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722; Lamberton v. McCarthy, 30 Idaho 707, 168 P. 11; Goodloe v. City of Richmond, 278 Ky. 794, 129 S. W. 2d 563; Daniels v. Daniels, 9 Colo. 133, 10 P. 657; Kist v. Coughlin, 210 Ind. 622, 1 N. E. 2d 602; State v. Logan, 1 Nev. 509; Fullen v. Fullen, 21 N. M. 212, 153 P. 294.

It is axiomatic that only final judgments are appeal-able to this court. See cases collected under Nebraska Digest, Appeal and Error, Key No. 66. This has always been the Nebraska rule. In Daniels v. Tibbets, 16 Neb. 666, 21 N. W. 454, we said: “To obtain a review in this court there must be a final judgment upon the merits of the case in the court below. Riddle v. Yates, 10 Neb., 510. Nichols, Shepherd & Co. v. Hail, 5 Neb., 194.”

In Anson v. Kruse, 147 Neb. 989, 25 N. W. 2d 896, quoting the early case of Hall v. Vanier, 7 Neb. 397, we said: “A final judgment is one that disposes of the case either by dismissing it before hearing is had upon the merits, or after trial by rendition of judgment for the plaintiff or defendant.”

Our statute defines “judgment” as: “* * * the final determination of the rights of the parties in an action.” § 25-1301, R. S. Supp., 1961. In section 25-1905, R. R. S. 1943, we find the following language, which indicates the application of the common meaning of the term “final judgment”: “The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment * * * sought to be reversed, vacated or modified.” (Emphasis supplied.)

In the instant case judgment was rendered in the district court against both defendants. Only one of them, j^obile.Hpme Finance. Company, perfected an appeal, .tp this court. This’defendant jgrguep that; the . judgnaept .pgnnot be. considered;as,final because.it.is Subject, ¡to/ reyersal, .that¡-it-is to he considered final orily. forjtlje Sprited-purpose of appeal:. Appeal [n no way affepjs -its |i¡nality....It.ip consideredi;ós final.m.nfiÍ it is revered;. $$ we,said in Creighton v. Keith, 50 Neb. 810, 70 N. W. 406: ‘If the judgment had not been appealed from, if mould,. upon 1. a familiar • elementary principle, have, go completely terminated and,adjudicated all the questions embraced within the issues as to conclude the parties. The appeal does, not- take from the judgment' ite, ch¡ief and much valued characteristic, — rthat of terminating the. litigation ,by a. final and conclusive adjudication; ¡on the .'Contrary,,, the ( judgment. retains that’, characteristic a^d,possessey- that- effect .until. reversed.’ (Elliott, Appellate Procedure, sec. 544.)’’-:

.¡.Our law ..specifically provides that.no appeal shall ,acf ay a supersedeas -unless a supersedeas, -bond is, filed). ,§ 25-191-6; R..R;. S.„ 1943. Unless- such bond-is. filed a judg7 ment-.-is enforceable- by. appropriate writ even-;though appeal may be pending. Could this be done if we .did.not consider, the-'judgment as final until reversed or vacated?

, .Even though -a judgment has been appealed and affirmed in- this court, it still, might subsequently be vacated for fraud-in a proper case. -Under the provisions of section 25-2001, R. R. S. 1943, many judgments which have been considered final for years have been vacated. No one questions, the fact that until -vacated they were final-judgments. - • . . . .. -,- ;

A case closely analogous in many ways to the instant one because of the similarity,of statutory provisions that a, judgment may-be enforced unless- superseded - and .a retroactive statute., was involved, is In re Bailey, 40 N. Y. S. 2d 746, 265 App. Div. 758, in which we find the following: “The more-. serious question is. wl}et¿er .the. petitioners,- acquired any, rights. under-the ..statute in. view of the fact that the,'.original judgment was., e-ntered prim; to. the effective date of the ■ statute-, and■ its retroactive■ provisions are limited to pending actions fin which no final judgment, has been made -and, entered! The determination of this : question . depends upon.the .construction to be given, to the words ‘final judgment.’ (Emphasis supplied.) ... ; , ,

“The expression ‘final judgment’ has-a well-defined meaning in the Civil Practice .Act., . It designates that judgment of the court of original, jurisdiction by which the rights of the parties, are' adjudicated and..determined. The finality of the judgment , so entered is not affected by.the pendency of an.appeal.,.* *.* In..this State, in the absence of a stay a judgment ..entered in the .Supreme Court has completé finality. .Execution .may be entered thereon even though an appeal is., pending. The -judgr ment may be satisfied .while the appeal is pending. Though there may be a reversal and ánother final'judgment, nevertheless, the first judgment was a final judgment ih the action.” This case was affirmed by the Court of Appeals in In re Bailey, 1291 N. Y. 534, 50 N. E. 2d 653. The only question on appéál was the meaning Of the temí “final judgment;”

Tn United States Cas. Ins. Co. v. Gilmore, 6 Ohio L. Ab. 334, the court held that .proceedings in error to reverse a judgment do .not render it any less final.

In Edwards v. Fidelity & Casualty Co. of New York, 11 La. App. 176, 123 So. 162, in which it was necessary to determine the meaning of the term “final judgment” in an insurance liability policy,, we find the. following: “Within liability policy, providing that no action.shall be' brought against insurer to recover under it till final judgment' shall have been recovered against assured) judgment is ‘final,’-as soon as there is a right to execute it ágaihst assúréd, notwithstanding a devolutive áppeál.”

In Sweet v. Sherman, 21 Vt. 23, the Vermont coüft held-that .a judgment obtained ih "a'lower court?is- the final judgment in the suit even though the case is pendí ing in the Supreme Court. ; . -, -, . . . p

The meaning of “final judgment” is so well established that some states, such as California, have found it advisable to specifically legislate on the point. Section 1049 of the California Code of Civil Procedure provides that an action is deemed to be pending until its final determination on appeal or until the time for appeal has passed.

In Gray v. Sawyer (Ky. App.), 252 S. W. 2d 10, the Kentucky court held that the term “final judgment” as used in their statute providing that no appeal for a new trial on the grounds of newly discovered evidence could be made later than the second term after its discovery nor more than 3 years after final judgment, meant final judgment in the trial court and not the judgment rendered by the court on appeal.

There is an even more potent argument as to the meaning intended by the language used in L. B. 17. In City of Beatrice v. Gage County, 130 Neb. 850, 266 N. W. 777, quoted heretofore, the Legislature in the acts there involved specifically provided the acts should be: “* * * taken to apply to any case now pending in which judgment has not become final in a court of last resort (Italics supplied.) Laws 1935, c. 31, p. 135, c. 88, p. 284. This language leaves no room for argument. It clearly shows the intention of the Legislature. The act in question, L. B. 17, however, does not so provide. It simply uses the term, “reduced to a final judgment.” If it had been the intention of the Legislature to subject cases pending on appeal to the legislation, it would have been an easy matter to have so provided. That is the method it has employed in the past. It is not the province of the court to provide an interpretation which the Legislature might have adopted if it had been called to its attention. This must be so where the term used has so universal a meaning as the one used.

For the reasons given, we find L. B. 17 not applicable to the instant case, and affirm the judgment of the trial court.

Affirmed.