Kennedy v. Adams

By the Court, Belknap, C. J.: It is shown by the complaint that a claim against decedent’s estate was presented to the respondents upon the 13th day of October, 1896, and disallowed by them upon the 24th day *220 of March, 1897. Action for the purpose of establishing the claim was commenced upon the 17th day of June, 1897'. Respondents interposed a demurrer to the complaint upon the ground that the suit was not commenced within thirty days after the rejection of the claim. The demurrer was sustained and, appellant declining to amend, judgment was entered against him. Before the commencement of this action, and upon the 23d day of March, 1897, the probate law of 1861 was repealed and the present law adopted. (Stats. 1897, p. 119.) The probate law of 1861 allowed holders of rejected claims three months within which to commence suit for the purpose of determining their validity; the present law requires such suits to be commenced within thirty days after notice of their rejection, under penalty of being barred. Suit was not commenced within thirty days after the rejection of the claim, but appellant contends that the claim having been filed during the existence of the probate law of 1861, the provisions of that law apply to this case, and that he had a vested right to proceed under it. If either of these contentions is correct, the judgment should be reversed. In the first place, we may say that a right of action depending solely upon a statute that has been repealed, falls within the repeal of the statute. This principle is so well settled that reference to authority is unnecessary. “ I take the effect of repealing a statute to be,” said Lord Ch. J. Tindal, in Key v. Goodwin, 4 M. & P. 351, “ to obliterate it as completely from the records of the parliament as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted, and concluded whilst it was an existing law.” It would have been competent for the legislature to have provided that proceedings commenced under the law of 1861 should be conducted under its provisions, but omitting any provision of this nature, and absolutely repealing the law, all proceedings commenced under it fall with it. Judge Cowan, in Butler v. Palmer, 1 Hill, 334, in summing up the authorities upon this subject, said: “The amount of the whole comes to this: That a repealing clause is such an *221 express enactment as necessarily divests all inchoate rights which have arisen under the statute which it destroys. These rights are but an incident to the statute and fall with it, unless saved by express words in the repealing clause.” Is the right to proceed under the law of 1861 a vested right? The question may be answered by the text writers. In Cooley’s Const. Lim., p. 442, the learned author says: “The right to a particular remedy is not a vested right. This is the general rule, and the exceptions are of those peculiar cases in which the remedy is part of the right itself. As a general rule every state has complete control 'over the remedies which it offers to suitors in its courts. It may abolish one class of courts and make another. It may give a new and additional remedy for a right or equity already in existence. And it may abolish old remedies and substitute new; or even without substituting any, if a reasonable remedy still remains. If a statute providing a remedy is repealed while proceedings are pending, such proceedings will be thereby determined, unless the legislature shall otherwise provide; and if it be amended, instead of repealed, the judgment pronounced in such proceedings must be according to the law, as it then stands. And any rule or regulation in regard to the remedy which does not, under pretense of modifying or regulating it, take away or impair the right itself, cannot be regarded as beyond the proper province of legislation.” Substantially the same rule is announced by Black in his essay in Const. Prohibition, at section 192, and by other authors. Judgment affirmed.