Smith v. Packard

12 Wis. 371

• Court: Wisconsin Supreme Court
• Decided: June 15, 1860
• Status: Published

Opinion

By the Court,

PAINE, J.

At tbe time of tbe argument of this case, a motion to quash tbe writ of error was also argued, and tbe conclusion to which we have come upon that, renders it unnecessary to decide upon tbe merits of tbe case.

Tbe motion is made for tbe reason that the writ was barred by tbe statute of limitations. Tbe judgment was entered on tbe 14th day of January, 1857. Tbe statute in force at that time allowed a writ of error to be brought at any time within four years after tbe judgment. But chapter 61 of tbe General Laws of 1858, which was approved April 24th of that year, contains tbe following provision: “ Tbe time within which a writ of error may be issued in any case, is hereby limited to two years from tbe date of tbe judgment rendered in tbe case in which tbe writ is taken.” This writ of error was issued on tbe 28th day of October, 1859, more than two years after tbe date of entering tbe judgment. If tbe statute applies, it is clear, therefore, that tbe writ was barred.

Tbe authorities seems fully to establish tbe rule that where mere inchoate rights are concerned, depending for their original existence on the law itself, they are subject to be abridged or modified by law, and that statutes of this character apply to such rights existing at the time of their passage, provided a reasonable time is left after the passage of the act, and before it would operate as a bar, for tbe party to exercise tbe right. De Cordova vs. City of Galveston, 4 Tex., 470; Winston vs. McCormick, 1 Carter (Ind.), 56; Gilman vs. Cutts, 3 Foster (N. H.), 376; Willard vs. Harvey, 4 id., 344; Smith vs. Morrison, 22 Pick, 430; Butler vs. Palmer, 1 Hill, 324.

In this case, about nine months remained after tbe passage of tbe act, and before tbe expiration of tbe two years from tbe date of tbe judgment. There can be no doubt that this must be considered as a reasonable time within which tbe writ of error might have been sued out, and that tbe statute therefore operated as a bar to its being issued afterwards. We think tbe constitutional provision that tbe writ of error shall never be prohibited, has no application to the question. The object of that provision was to prevent parties from being deprived entirely of the right to this writ; not to prevent any limitation from ever being established upon the exercise of the right.

The motion to quash is granted, with costs.