Borrman v. Schober

By the Court, Oole, J. We hare' no doubt whatever that the premises in controversy were exempt under chapter 137, Laws of 1858, from the lien of the judgment mentioned in this case. That judgment was recovered in February, 1858, before the justice, and a transcript of it filed or docketed in the circuit court in March, 1860. Now it requires no argument to show that the judgment did not become a lien upon real estate until the transcript was filed and the judgment docketed. For the statute is most distinct and explicit that such a judgment shall become a lien only from the filing of the transcript. Sec. 171, chap. 120. The act of 1858 took effect in June of that year. The obvious intent of that law is, to exempt the homestead from sale on execution in all cases where the lien had not attached prior to the passage of that law, and to enable the owner to remove from, sell and convey the same exempt from such liens. In Seamans v. Carter, 15 Wis., 548, we held that the act was not intended to operate retrospectively so as to destroy or affect any judgment which had already become a lien. With this construction of the law we are nbw entirely satisfied. But we are at the same time entirely clear that it was the intention of the legislature to exempt the homestead in all future cases [440] where, but for tbe passage of this law, the judgment would become a lien. This is in harmony with the spirit and object of all our legislation upon the subject of homestead exemption. Now, as the transcript of the justice’s judgment in this case was not filed until nearly two years after the law of 1858 took effect, it never became a lien upon the homestead. Within the purview of the law it was a future transaction, and stands precisely on the same ground as a judgment rendered in a court of record the very day the transcript was filed. A question is made as to the power of the legislature, after the rendition of the judgment by the justice, to divest the judgment creditor of his right, by filing a transcript, to perfect his lien. This point seems to us too plain for argument. Cannot the legislature at any time repeal the provision which enables a party to file a transcript of a justice’s judgment so as to make it a lien on real estate, and thus take away the right to perfect the lien in every case where a transcript has not been actually filed l Most undoubtedly it can. If a party has a vested right, inchoate or perfect, to perfect his lien by filing a transcript of a justice’s judgment, has he not likewise a vested right in the law which enables him to sue his debtor before a justice on a contract, where the amount claimed is an hundred dollars ? We think there is no distinction in principle in the two cases. If the legislature can change, alter, modify, or repeal the law in one ease, it can in the other. But we suppose it is incorrect to talk about a creditor having a vested right to perfect his lien by filing a transcript of a justice’s judgmont. The creditor has no such vested right. The judgment of the circuit court must be reversed, and the cause remanded with directions to grant the relief prayed for in the complaint.