Cranor v. School District No. 2 of Township No. 62 of Range No. 82

BURGESS, J. This cause, appealed to the Kansas City Court of Appeals, has been transferred to the Supreme Court because of a seeming conflict of the opinion rendered in the case by the court of appeals, with Meyer to use v. Mehrhoff, 19 Mo. App. 682. On the 20th day of March, 1882, the plaintiff recovered in the circuit court of Gentry county a judgment against the — 123 — defendant fertile sum of $180 debt, and $400 cost. No part of this judgment seems to have been paid, and on the 13th day of January, 1896, this suit was instituted by plaintiff against defendant in the same court upon that judgment. The answer admits that defendant is a body politic and corporate. It then denies all other allegations in the petition, and pleads the ten year statute of limitations and payment in bar of the action. There was judgment for plaintiff for debt and interest, $331.20, and $300 for cost, being the total of $631.20. Defendant appeals. When the original judgment was rendered the statutory period in which all actions upon judgments of courts of record were barred was twenty years. [Sec. 3251, R. S. 1879; sec. 6796, R. S. 1889.] But before this suit was begun that section of the statute was repealed and another enacted in lieu thereof by which it is provided that: “Every judgment, order and decree of any court of record of the United States, of this or any other state or territory, shall be presumed to be paid and satisfied after the expiration of ten years from the day of the rendition of such judgment, or order, or decree, or in case a payment has been made thereon, and duly entered upon the record thereof, after the expiration of ten years, from the day of the last payment so made; and after the expiration of ten years from the day of the rendition, or from the day of the last payment, no execution, order or process shall issue thereon, and neither shall any suit be brought thereon to collect the amount of the same as a debt.” [Laws of 1895, p. 221.] The first question with which we are confronted is whether or not the action was barred by this statute at the time of the commencement of this suit. At any time before the statute of limitations has become a bar to an action, the legislature may shorten or cut down the length of time required by the statute to become a bar — 124 — thereto, provided a reasonable length of time is given the party in whose favor the cause of action exists in which to bring his suit. [Callaway Co. v. Nolley, 31 Mo. 393 ; Vance v. Vance, 108 U. S. 514 ; In re Ackerman, 33 Minn. 54 ; Koshkonong v. Burton, 104 U. S. 668 ; Ryhiner v. Frank, 105 Ill. 326.] But in the act of 1895 no time is given after its passage in which suits upon judgments of courts of record theretofore rendered may be brought, and if it applies to such judgments it is as to them unconstitutional and void in that it cuts short the plaintiffs right to sue, thereby depriving him of a vested right. In the case of Stephens v. St. Louis Nat. Bank, 43 Mo. loc. cit. 388, it is said: “Limitation acts are based on the idea that the party has had an opportunity to try his rights in the courts. A statute which should bar the existing rights of claimants, without affording that opportunity, after the time when the statute should take effect, would not be a statute of limitations, but an unlawful attempt to extinguish rights and destroy the force of contracts. It is essential, therefore, to their validity, that they allow a reasonable time after they are passed for the commencement of suits upon existing causes of action.” Citing Price v. Hopkin, 13 Mich. 318 ; Call v. Hagger, 8 Mass. 423 ; Society v. Wheeler, 2 Gall. 141 ; Blackford v. Peltier, 1 Blackf. 36 ; Thornton v. Turner, 11 Minn. 339 ; Berry v. Ransdall, 4 Met. (Ky.) 292. “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.” [Smith’s Commentaries on Const, and Stat. Constr., sec. 254.] The same author also says: “Although ordinary statutes of limitation to actions are not within this clause, yet if — 125 — such a statute should be passed which did not allow a reasonable time after the passing thereof, for the commencement of suits on existing causes of action, such an act would be unconstitutional.” (Ib., sec. 265-.) It was so held in Sturges v. Crowninshield, 4 Wheat. 207, and Jackson v. Lampshire, 3 Pet. 290. We are not however inclined to hold that this statute has any reference to causes of action which existed at the time it took effect, and which are mentioned therein for these reasons. If so, it is retrospective in its operation, and a law will always be deemed prospective when vested rights may be affected thereby if otherwise ’ construed, “unless the legislature has so explicitly expressed its intention to make the act retrospective that there is no place for a reasonable doubt on the subject.” [Black’s Const. Law, par. 198, p. 544 ; Bartlett v. Ball, 142 Mo. 28 ; Leete v. Bank, 115 Mo. 184, and cases cited ; s. c., 141 Mo. 574 ; Shields v. Johnson Co., 144 Mo. 76.] There is nothing in the act which would seem to indicate that it is retrospective, and if there was as to plaintiff’s right of action, it would be unconstitutional. It can therefore only be upheld upon the ground that it is prospective, rather than retrospective. [State ex rel. v. Railroad, 79 Mo. 420.] As there was no time given in the act in which actions then accrued might be brought after it took effect, as to all such actions it was and is unconstitutional. It follows that plaintiff’s cause of action would not become barred until the expiration of twenty years after the date of the rendition of the original judgment. [Neilson v. County of Chariton, 60 Mo. 386.] It is also claimed that the judgment is erroneous, because by it plaintiff recovers $300 for costs in the original action, wdiich he has never paid, and which has never been assigned to him. Meyer to use v. Mehrhoff, 19 Mo. App. 682, is the chief authority relied upon by defendant in support — 126 — of this position. That was a suit instituted before a justice of the peace upon a judgment of the circuit court of St. Louis county, rendered April 22, 1872. The original judgment was for $100 damages, and $59.95 costs. The case was appealed to the circuit court, where upon a trial de novo plaintiff recovered judgment for the original amount of the judgment with interest, to which was .added the $59.95 costs. The complaint alleged that the costs were unpaid. There was no evidence that the costs or any part thereof had ever been paid by plaintiff or any one else. The court observed: “On what theory can the plaintiff in this case obtain a judgment against the defendant for an amount which is supported by no consideration, namely, for the costs which he has never paid, .and for which, at this date, there is no liability on his part ?” In McConkey v. Chapman, 58 Ia. 281, it is held that the payment in full of the judgment and costs by the judgment debtor to the judgment creditor, will not release him from all liability to have :a fee bill issued against him for the costs. That the successful party has no right to costs not advanced by himself, and payment to him would not absolve the unsuccessful party from payment to the persons entitled thereto. So in Ellsbre v. Ellsbre, 28 Pa. St. 172, it is held that the plaintiff in a judgment has no right to' receive from the defendant, the costs and fees of the officers; 'and that his receipt for the same is no discharge to the defendant, but that an execution might be issued on the judgment against the defendant for such costs, although the plaintiff may have receipted to him in full therefor. But these adjudications do not seem to be in accord with our statute and the rulings of the Supreme Court upon the subject. Thus by section 2920, R. S. 1889, the party prevailing is entitled to recover his costs against the other party, except as otherwise provided by law; while by section 2946, in all cases where costs shall be awarded, either before or upon final judgment, execution shall be issued therefor forthwith — 127 — by tbe clerk, unless otherwise ordered by the party in whose favor such costs shall be awarded. With these provisions of the statute in view it was held in Beedle v. Mead, 81 Mo. 297, that the judgment for costs belongs to the litigant, and that he alone controls it. The court said: “The judgment for costs is in favor of the litigant, to reimburse him for what he has paid out and expended, and he is entitled to have execution therefor. Over that judgment the party, in whose favor it is rendered, has absolute control. It is his property. ILe may enforce or forgive it at his pleasure. Under similar statutes in the State of Illinois this view is strongly maintained.” There is then quoted with approval from Reddick v. Cloud, 2 Oil. 676, the following: “There can be no doubt of the right of the officers interested in the fee bill delivered, as an execution against the defendants, to control it. And the sheriff is liable to their orders, except in relation to his own fees, as nrqch as he is to the orders of the plaintiff in execution, in relation to it. But not so in relation to the execution. That is the plaintiff’s process; the officers have no right to control it. The plaintiffs may forgive the debt and costs, if they choose, and the officers have no right to interfere. The plaintiffs are liable in the first instance to the officers for their own costs, iamd are entitled to recover them of the defendant to reimburse themselves. . . . Under this view of the case, it would be extremely inconvenient to allow each and every one interested in the costs to take control of the plaintiff’s process, by which their satisfaction might be hazarded, or lost, or great delay and expense incurred.” The same doctrine is announced in Newkirk v. Chapron, 17 Ill. 344 ; Wickliff v. Robinson, 18 Ill. 145 ; see, also, Freeman on Executions, sec. 21. So in Hoover v. Railroad, 115 Mo. 77, it was held that a judgment for costs is an incident of the judgment and must be in favor of or against a party to the cause, and the party — 128 — alone in whose favor it is rendered has the right to sue out execution therefor. Where the statute says the party prevailing shall recover his costs it means the costs incident to the suit, and the judginent therefor is as much his as the judgment for any sum that may be rendered in his favor upon the merits of the case. These views are in accordance with the opinion of the Kansas City Court of Appeals in this case, but are in conflict with the case of Meyer to use v. Mehrhoff, 19 Mo. App. 682. We therefore approve the ruling of the Kansas City Court of Appeals, and disapprove the case of Meyer to use v. Mehrhoff, supra. For these considerations we affirm the judgment. Gantt, P. J„ and Sherwood, J., concur.