Catterlin v. Bush

Decided 15 January, 1900.

On Motion to Dismiss Appeal.

Per Curiam.

1. This is a motion to dismiss an appeal because the transcript was not filed in time. The question involved is whether the act of February 22, 1899, amending section 541 of the Code (Laws, 1899, p. 227,) applies to appeals taken and perfected before it went into effect. That it is within the power of the legislature to change and modify the statute relating to judicial procedure, so as to affect proceedings in pending causes, is unquestioned. And legislative enactments which affect the mode of procedure only are often construed to so apply, unless the contrary appears, although there is some conflict in the authorities on this point: 23 Am. & Eng. Ency. Law (1 ed.), 450. But the intention of the legislature, as gathered from the language used, must, of course, control. If a statute is expressly made retroactive, or if its language is so broad as to include pending causes, or affect inchoate rights, it must be given force as such; but, if it can be gathered from the language employed that the design was to make it prospective in its operation, it will be so construed. The act under consideration is that, “upon the appeal being perfected, the appellant shall, within thirty days thereafter, file with clerk of the appellate court a transcript,” etc., “and thereafter the appellate court shall have jurisdiction of the cause but not otherwise ;” and this seems to indicate an intention to make such enactment applicable to future, and not to past, appeals. It will be observed that it does not provide that the transcript in all appeals shall be filed within a certain time after the appeal is perfected, as was the case in Judkins v. Taffe, 21 Or. 89 (27 Pac. 221); but that, “upon the appeal being perfected,” the appellant shall file the transcript within the time specified, which may, in our opinion, be properly held to apply to future appeals, and not to those already taken. The statute is, at least, open to this- construction, and while, under the technical rules of law, it might be considered retroactive, we are not disposed to give it such a construction. The right to an appeal is a valuable one, and while it is purely statutory, and may be modified, or perhaps entirely done away with, by statute, a legislative intent to do so ought not to be inferred from doubtful statutory provisions. The motion to dismiss is therefore denied.

For appellant there was a brief over the names of N. B. Knight and R. J. Fleming, with an oral argument by Mr. Fleming.

For respondent there was a brief and an oral argument by Messrs. Geo. G. Bingham and John A. Carson.

Motion Overruled!