Christianson v. Pioneer Furniture Co.

The following opinion was filed November 1, 1898: Maeshall, J. The statement of facts preceding this opinion discloses the only assignments of error that need be considered. There are many other errors assigned in appellant’s brief and ably argued by counsel on both sides, which would call for careful consideration if reached. But the first point made by appellant is considered decisive of the appeal, so a complete statement of facts upon which the other errors are-assigned would unnecessarily incumber the record to be preserved, and is therefore omitted. Sec. 3072, Stats. 1898, provides that, “It shall be the duty of the plaintiff in any action or proceeding when a judgment [346] or order in his favor therein is reversed by the supreme court on defendant’s appeal, to pay the taxable costs on such reversal, procure the record in said cause to be remitted to the trial court and bring the cause to trial within one year after such reversal unless the same be continued for cause, ■and if he fail so to do the complaint shall be dismissed.” That is plain language. Judicial construction or interpretation has no office to perform in regard to it. Any attempt to change the plain meaning would be a clear invasion of the domain of another branch of the government, whose duty it is to make the law. If it is harsh or unreasonable, ;a's claimed by respondent, and we do not say that it is, for much may be said’ in support of it as a wise provision, so long as it does not contravene the constitution at any point the court must administer it as it' is. It was the duty of plaintiff to have paid the judgment for costs rendered on the reversal of the first judgment, and to have brought the case to trial within one year after such reversal, unless such conditions were waived by the defendant. A failure to perform that duty, in the absence of a waiver of it, entitled defendant to a dismissal of the complaint. Both payment of costs and bringing the action to a new trial were conditions precedent to the right to further proceed on the part of plaintiff. It was competent for defendant to waive cither condition expressly or by implication, but it was not in the power of the trial court to dispense with either condition and to so administer the statute as to fit the financial situation of the plaintiff. There was no discretionary power whatever in the matter lodged in the trial court. No legitimate ground is perceived for saying that defendant, at any stage of the proceeding, waived its statutory rights. It did nothing after the reversal except to resist plaintiff’s proceeding further without paying the costs, and to participate- in what occurred on plaintiff’s motion, protesting at every step because of their nonpayment, and [347] promptly, upon the year expiring, to move for a dismissal of the complaint. The case is unlike Whereatt v. Ellis, 85 Wis. 340, where the successful party paid the costs in this court, caused the récord to be remitted, and took various proceedings inconsistent with standing on his rights under the statute. It is just as unlike Raymond v. Keseberg, 98 Wis. 317, where the successful party paid the clerk’s costs, caused the record to be remitted within a year after the reversal, thereafter negotiated with plaintiff for a settlement till it was too late to put the case on the calendar within the prescribed time, and after the expiration of the year, and before trial, accepted the costs on reversal, which were paid in full by plaintiff. The neglect of plaintiff to pay the costs in this court, under the circumstances, was by no means a mere irregularity that was waived by defendant’s participating in the trial after repeatedly insisting upon its statutory rights and preserving its exceptions to the refusals to grant them. It is suggested that the law is unconstitutional in that it contravenes sec. 9, art. I, of the state constitution, which provides that every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property, or character; that he ought to obtain justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws. That provision is very old. Its history dates back to the days of Magna Carta. It was designed to prevent a species of official exactions made as the price of delaying or expediting justice. Erom the lowest officer to the king himself, in the olden times, bribes were freely demanded and taken to procure the benefits of the laws. They bore no relation whatever to our system of ex-actions for expenses of litigation, called costs, or the charge as a tax on suits, imposed under laws which bear equally upon all; but they were arbitrary exactions sanctioned by [348] tbe manners of the times, that went to the personal benefit of the judicial head or body controlling the execution of the law, or to servants or officers connected therewith. It was such abuse, among others, that the barons of England forced King John to abolish by granting the Magna Carta. It contained the following as one of the guaranteed limitations upon kingly prerogatives: “We will not sell the right and justice to anyone, nor will we refuse it, or put it off.” Says Sir Edward Coke, “ The king, in the judgment of the law, is ever present and repeating in all his courts, ‘JVulU vende-mus, nulli negdbimus, aut differemus reetum vel justitiamj and therefore every subject, for injury done him ivn bonis, in terms, vel persona ’ by any other subject, be he ecclesiastical or temporal, without any exceptions, may take his remedy by the course of the law and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.” So the right thus obtained as a concession from sovereign power has come down to us through the centuries that have passed, and been preserved in all its integrity in substantially all state constitutions. They do not grant the right, but guarantee the preservation of one that existed under the constitution of England. The requirement, for the payment of the expenses of litigation taxed according to law, in no way contravenes that valuable right. Laws of the latter character have been sustained by all courts. Laws have frequently been sustained by this court requiring the payment of taxes alleged to be illegal, as a condition of appealing to the courts to avoid the tax deed based thereon. The constitutional provision does not refer to that kind of exactions. Lombard v. McMillan, 95 Wis. 627. By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment dismissing the complaint, with costs to be taxed according to law.