(dissenting). In this case a former appeal was heard and decided on July 10, 1918. A motion for rehearing was denied September 24, 1918 (40 N. D. 510, 169 N. W. 79). The court held thus:. “On the record and undisputed evidence the case presents no question of fact to submit to a jury. The court should have directed a verdict in favor of the plaintiff or allowed the motion for judgment notwithstanding the verdict.” That was a direction to the trial court to enter judgment in favor of the plaintiff. Hence, on filing the remittitur, judgment was entered in accordance with the decision of this court. On October 2, 1918, a notice of taxation of costs was duly served on defendant’s attorney, which appears by his written admission. He appeared and filed written objections to the taxation of the cost of printing the brief. Then, on November 14, 1918, defendant’s attorneys served notice of a motion to vacate the judgment on the ground that the court had not jurisdiction to enter the same without a new trial. Subsequently, defendant added in pencil another cause to wit, “that at the time of the entry of judgment herein defendant was in the United States Army,” and on December 27, 1918, at the time of the hearing of the motion, there was filed an affidavit by Mr. Murray, “that in February, 1918, defendant was drafted into military service of the United States, and that at all times since then he has been, and still is, in the military service of the United States at Camp Lewis, in the state of Washington, as appears from a letter written by defendant dated November 18, 1918.” The court made an .order denying the motion to vacate the judgment and directing that execution from the *605judgment be suspended for the period of one year after peace has been •declared. Thus the court gave defendant the full benefit of the Moratorium Statute, though defendant did not ask for it in the original notice of motion, and though he did not claim the same at the time of the taxation of costs. Now the law does not require idle acts, and surely an order that the judgment be set aside and reinstated after the lapse of the year would have been an idle act, imposing costs on the defendant.
The statute provides that no action for the recovery of any indebtedness against any person in the military service of the United States shall be maintained during the time the United States is at war, and for an additional period of one year, and that during such time no further proceedings shall be taken in any action that is pending against the party, over the objection of such party or his attorney, nor shall any judgment against such person be enforced against him or his property during such period. In the opinion of the writer the act is void because it impairs the obligations of contracts and because the subject of the act is not expressed in its title. The title is: “An Act Regulating Civil Rights of Members of the Military and Naval Establishments of the United States Engaged in the Present War.” Now the word “civil” is from “civis,” a citizen, and civil rights mean the rights of citizens, and not an exemption from due process of law. But in this case there is no reason to pass on the constitutionality of the act. It does not debar anyone who is in the Army from voluntarily appearing in court and contesting his rights to property. In this case the defendant appeared and contested his claim to $700, which was garnisheed, and the real purpose of the appeal was to contest that right or claim. It was to give defendant a further opportunity to contest his right to the money. Now the statute does not provide that any court must take judicial notice of the fact that any person is in the active military service, or by reason of such service deny him the right to prosecute or defend an action. It does provide that no proceeding in an action shall be taken against him over his objection on the ground that he is in the active military service, but when this ease was before the court no such objection was made. When defendant appeared and contested the taxation of costs, no such objection was made. When defendant gave notice of motion to set aside the judgment, no such objection was *606made. It was not made until December 28, 1918, wben tbe motion was submitted to tbe court and decided, and then tbe court made its order giving defendant the full benefit of tbe statute. Now to say that the judgment must be vacated, with directions to reinstate tbe same after tbe lapse of a year, that would be ridiculous and absurd,— and it -would be an idle act. If tbe judgment as entered by tbe district court should be held void, then, for tbe same reasons, tbe judgment of this court on tbe former appeal should be held void.
Furthermore, tbe Moratorium Act is void because it conflicts with tbe provision that no state shall pass any law impairing the obligation of contracts. Tbe decisions of tbe United States Supreme Court do establish this rule: “Tbe obligation of a contract in tbe constitutional sense is tbe means provided by law by which it can be enforced, — by which tbe parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs tbe obligation. If it tends to postpone or retard tbe enforcement of tbe contract tbe obligation of the latter is to that extent weakened.” Louisiana v. New Orleans, 102 U. S. 206, 26 L. ed. 133; Planters’ Bank v. Sharp, 6 How. 301, 12 L. ed. 447; Edwards v. Kearzey, 96 U. S. 600, 24 L. ed. 796; Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042.
“Tbe obligation of a contract ... is that duty of performing it. . . . And if tbe law is so changed that tbe means of legally enforcing this duty are materially impaired, the obligation of tbe contract no longer remains tbe same.” Curran v. Arkansas, 15 How. 319, 14 L. ed. 712; Seibert v. Lewis (Seibert v. United States) 122 U. S. 284, 30 L. ed. 1161, 7 Sup. Ct. Rep. 1190; Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143; McCracken v. Hayward, 2 How. 612, 11 L. ed. 399; Gantly v. Ewing, 3 How. 707, 11 L. ed. 794; Butz v. Nuscatine, 8 Wall. 583, 19 L. ed. 493; Walker v. Whitehead, 16 Wall. 314, 21 L. ed. 357.
But Congress bad power to pass all laws necessary for tbe protection of tbe soldiers, and it did pass a Moratorium Statute which provides that wben a person in tbe military service has appeared in an action and bis rights have been in no way prejudiced by reason of bis military service, then there is not even a stay of tbe judgment against him. U. S. Comp. Stat. § 3078{:bb, Fed. Stat. Anno. Supp. 1918, p. 814. *607Certainly there is no occasion for this court supplementing, adding to,, or talcing anything from the act of Congress. The judgment should be affirmed.