Denied May 18, 1915.
Second Petition for Rehearing.
(147 Pac. 1191.)
This is a second application and petition for a rehearing herein. The reason for denying this petition is set forth in the opinion of the court.
Second Petition for Rehearing Denied.
Mr. L. M. Travis and Mr. A. K. Meck, for appellant and for petition.
Messrs. Skipworth & Lewis and Mr. O. H. Foster, for respondent and against petition.
Department 1. Opinion by
Mr. Chief Justice Moore.In a second petition for rehearing, judgment for $100, the limit of a recovery against the municipality, is demanded, together with the costs and disbursements incurred at the trial and on the appeal. Had the request been made when the motion to set aside the judgment and grant a new trial was interposed, *335a very different conclusion would probably have been reached by the trial court. Speculating, however, upon a reversal of the ultimate judgment, it was insisted upon appeal that errors had been committed in granting the original motion. When the judgment was affirmed, an offer was made to accept a judgment against the city for the sum for which a recovery might have been had.
This application comes too late, and for that reason is denied.
Second Petition eos Rehearing Denied.
Mr Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.Denied September 14, 1915.
Petition to Recall Mandate.
(151 Pac. 474.)
The order and judgment of the lower court setting aside the verdict of the jury for $2,000 in favor of plaintiff, and granting a new trial, was affirmed on appeal, and plaintiff now moves to recall the mandate heretofore issued and for an order directing judgment to be entered on the verdict in her favor.
Petition Denied.
Mr. L. M. Travis and Mr. A. K. Meck, for appellant and for the petition.
Messrs. Skipworth & Lewis and Mr. O. H. Foster, for respondent and against the petition.
*336Department 1. Opinion by
Mr. Chief Justice Moore.7. This is a motion to recall a mandate and to secure an order directing a judgment to be entered on a verdict. Tbe plaintiff was injured by falling on a sidewalk in the City of Eugene, and in an action against tbat municipality to recover tbe damages sustained she secured a verdict and judgment for $2,000. This judgment was set aside by tbe trial court, because tbe defendant’s charter limited a recovery in such cases to $100. Tbe action of tbe trial court was affirmed on appeal; this court bolding tbat tbe clause of tbe charter was not violative of Article I, Section 10, of tbe Constitution of Oregon, which declares tbat every person shall have remedy by due process of law for injuries done bis person, property or reputation, for, as tbe city council was given power to repair sidewalks, anyone hurt by reason of a defect therein might maintain an action against tbe city officials for a breach of their duty: Pullen v. Eugene, ante, p. 320 (146 Pac. 822, 147 Pac. 768, 1191). The mandate from this court having been sent down, an amended complaint was filed by leave of court, making as parties defendant tbe city .officers whose breach of duty is asserted to have been tbe cause of tbe accident. Thereafter tbe clause of tbe charter was repealed, at an election held for tbat purpose, whereupon this motion was interposed; tbe plaintiff’s counsel insisting tbat, tbe impediment against a recovery of more than $100 having been removed, judgment should now be entered as originally given.
In Newsom v. Greenwood, 4 Or. 119, it was held tbat an enactment repealing or modifying tbe remedy of a party should not be so construed as to affect actions or suits brought before tbe repeal or modifica*337tion. The repeal of a law conferring jurisdiction, however, takes away the right to proceed as to all actions undetermined at the time of the repeal, unless there is a saving clause in the abrogating enactment: State v. Ju Nun, 53 Or. 1 (97 Pac. 96, 98 Pac. 513). “Legislation which prejudicially affects vested rights or the legal character of past transactions,” says Mr. Justice Bean, in Judkins v. Taffe, 21 Or. 89, 91 (27 Pac. 221, 222), “will not be construed as retroactive, unless it is declared so in the act, and the courts will give to such enactments a prospective rather than a retroactive construction, if possible.” A certified copy of the enactment, repealing the limitation clause of the charter, having been sent up, an examination thereof shows that no provision was made therein for the maintenance. of existing causes of action thereunder. The plaintiff’s remedy, if more than $100 is undertaken to be recovered, is against the city officers, as it existed prior to the repeal of the limiting clause of the charter.
The petition should be denied, and it is so ordered.
Petition Denied.
Mr. Justice Benson, Mr. Justice Burnett and Mr. Justice McBride concur.