Scarborough v. Dugan

Baldwin, J., delivered the opinion of the Court Terry, C. J., and Field, J., concurring. The record presents a question of validity or construction of the [308] first section of the Statute of Limitations of April 2, 1855, which is as follows: “ Section one—An action upon any judgment, contract, obligation, or liability, for the payment of money or damages obtained, executed, or made out of this State, can only be commenced within two years from the time the action has accrued or shall accrue.” (Statutes of 1855, 75.) This suit was brought on a judgment recovered in Ohio, in 1853, and, under the statute passed in 1850, the plaintiff had five years within which to commence a suit on it, which period, of course, had not expired when the statute of 1855 was enacted. The Constitution gives to the record of a judgment properly attested, when rendered in one State, the same force and effect in another, as evidence, which it basin the State of its rendition. It thus appears that the plaintiff had a good cause of action against defendant on the second of April, 1855, though the cause of action accrued, if such be the construction of the statute, in 1853. The question comes, then, to this: Can the Legislature, under the pretence or with the object of regulating the remedy, deny all remedy, and thus destroy the contract ? for it is well settled that a judgment, in this sense of the Constitution, is a contract. It is not disputed that the law of the forum can regulate the remedy, which, generally speaking, forms no part of the contract, and thus is not within the constitutional interdict. But it is just as well settled that the Legislature has no right so to regulate the remedy as that it shall destroy the contract by denying all means of enforcement. A right without a remedy is, practically, no obligation at all. A contract is just as much impaired by a prohibition to sue upon it, as it is by direct legislative action declaring it void. It is the same thing for the Legislature to say that a promissory note, now due and collectable, shall not be sued on if it has been due for a year, as to say that all promissory notes over due that length of time, shall be void. The rule is thus expressed in Bronson v. Kinsie, (1 How. U. S., 311,) Chief Justice Taney delivering the opinion: “ Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract) but, if that effect is produced, it is immaterial whether it is done by acting on the remedy, or directly on the contract itself. In either case it is prohibited by the Constitution.” (See, also, McCrackin v. Haywood, 2 How. U. S. R., 608.) The Statute of Limitations, therefore, can only be construed to apply to judgments not in esse at the time of the passage of the act of 1855, or as giving two years from the passage of the act within which to sue upon such as were not already barred by the act of 1850. [309] The authorities which sustain this view are numerous. See the foregoing cases, where they are collected. The judgment in this case not being barred at the time of the suit below, the Court erred in ruling that the statute of 1855 applied to it—and the judgment below must be reversed and cause remanded.