BOOK XV.

RETROSPECTIVE EFFECT OF THE CODE.

As a general rule, the Code, like other statutory provisions, must be looked upon as prospective only in its nature, leaving proceedings pending at the time of its passage, to be governed by the then existing practice. At the time, however, of that passage, this rule was modified as regards the operation of certain sections, and other provisions made in relation to then existing proceedings, by the collateral measure, entitled "An act to facilitate the determination of existing suits in the courts of this state," passed on the same day, viz., April 12th, 1848.

On the first amendment of the Code in 1849, an amendment of the supplementary act was also effected, by a law passed the same day, viz., 11th April, 1849, by which amended measure proceedings in then existing suits have since been governed, and may still be held to be so, as no formal repeal of the latter has ever taken place.

In the measure of 1851, however, an amendment of sec. 457 is effected, which seems to have the practical effect of superseding all other provisions, and of rendering every portion of the Code retrospective in all cases, and for all purposes. The section as now amended, runs in the earlier portion of it as follows:

“The provisions of this act, apply to future proceedings in actions or suits heretofore commenced and now pending, as follows: "1. If there have been no pleading therein, to the pleadings and all subsequent proceedings.

"2. Where there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings.

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3. After a judgment or order, to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal.”

The latter portion of the section, is in relation to the appointment

of extraordinary Terms, when necessary, and has no immediate bearing on the present question.

It seems difficult to conceive any state of circumstances which this provision, if fully applied, would not be sufficient to embrace; and such was probably the view taken of it by the legislature, as evidenced by the fact that no alteration was made by them on that occasion, as regarded the supplemental acts before noticed, though, in more than one respect, such an alteration would have been desirable. The fact is, that the number of cases pending, or decided before the introduction of the Code, is daily diminishing, and the necessity of any special enactment on the subject lessening in the like ratio; and, therefore, a general sweeping enactment, such as that above cited, seems all that is now either necessary or desirable upon the subject.

In the Code, as last amended, the following provision was also made by sec. 460, in relation to the time for appealing from decrees in equity, in suits pending in the supreme court on 1st July 1847:

§ 460. An appeal may be taken from any final decree, entered upon the direction of a single judge, in any suit in equity pending in the supreme court, on the first day of July, one thousand eight hundred and forty-seven, at any time before the first day of November, one thousand eight hundred and fifty-two. But this section shall not apply to cases, where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review which no attempt in good faith has been, or shall have been made, within thirty days after notice of the entry of such decree. Such appeal shall be taken in the manner provided in sections three hundred and twenty-seven and three hundred and fortyeight.

In the Code of 1851, the period here fixed, stood as of the same date in 1851. In that of 1849, the limitation for appeals of this nature was until ninety days after that act took effect; and, in Burch v. Newbury, below eited, it was held that this limitation was not unconstitutional, because it merely extended the time for bringing an appeal, and affected the remedy only; and the same principle will of course hold good in relation to the extensions effected by the acts of 1851 and 1852, as above cited.

In the same case of Burch v. Newbury, 4 How. 145, it was decided with especial reference to this section, as it stood at that time, that a proceeding pending in the court of chancery on 1st

of July 1847, was within its terms; that date being clearly an error for the first Monday in July 1847, i. e., the 5th of that month, on which day all suits, then pending in chancery, were transferred to the supreme court, by the terms of the constitution-art. 14, secs. 5 and 6. It was also held that a case, where a re-hearing had been applied for and denied, did not come within the exclusion made at the end of the section, and a motion to dismiss an appeal on that ground, was refused accordingly.

The evident error alluded to in this case, appears to have escaped the attention of the legislature.

In Mason v. Jones, 1 C. R. (N. S.) 335, where a decree in a suit in equity, pending as above, was made in April, 1851, and a copy thereof served on the opposite party on the 13th May, who took no proceeding to appeal therefrom, until the 17th July following, such appeal was held to be taken too late, and was dismissed accordingly. The decree being entered before the passage of the measure of 1851, was not within its provisions; the thirty days' limitation of an appeal from a judgment entered on the direction of a single judge, by sec. 348 of the Code, would have precluded an appeal, had that section been applicable;-whilst the application could not be entertained in the nature of a rehearing, under sec. 7 of the supplemental act of 1849, as below cited, because no notice thereof had been given within ten days after notice of such decree, as there prescribed. The intended appellant was, therefore, held to be without remedy in the premises. See decision upon analogous principles, in Church v. Rhodes, 6 How. 281.

By section 461, it is provided as follows:

§ 461. An issue of fact joined in a county court, or court of common pleas, before the first day of July, one thousand eight hundred and forty-eight, or then pending in that court on appeal, shall be tried by a jury, unless the parties otherwise agree.

By section 473 of the amended Codes of 1849 and 1851, those measures were made so far retrospective, as to date back to the passage of the original measure of 1848, as follows:

§ 473. This act shall take effect on the first day of July, 1848; except that sections 22, 23, 24 and 25, shall take effect immediately.

In Gamble v. Beattie, however, 4 How. 41, it was decided that, notwithstanding the terms thus used in sec. 473, the new portions of the measure of 1849, not contained in that of 1848, were not retrospective; and the court inclined to construe the amended act

as taking effect, with reference to new matter, as from twenty days

after its passage.

By section 456 of the amended Code of 1851, it is provided as follows:

§ 456. The appeal, mentioned in section 9 of the act to facilitate the determination of existing suits in the courts of this state, may also be taken from an order, made at a special term, on a summary application in an action after judgment, when such order involves the merits of the application, or some part thereof.

See this section of the supplemental act, below considered.

By section 457, the following provision is made, in reference to appeals, in cases pending before the Code:

§ 457. No writ of error shall be hereafter issued, in any case whatever. Wherever a right now exists to have a review, of a judgment rendered, or order or decree made before the first day of July, 1848, such review can only be had upon an appeal taken in the manner provided by this act; and all appeals heretofore taken from such judgments, orders, or decrees under the provisions of the Code of procedure, which are still pending in an appellate court, and not dismissed, shall be valid and effectual. But this section shall not extend the right of review, to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

In Dunlop v. Edwards, 3 Comst. 341, 3 C. R. 197, the court held that an order, denying a motion to set aside a judgment entered on a warrant of attorney, was not appealable under the Code of 1848. Under the amended measure the reverse would be the case, on the ground that such an order would be “ a final one, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment.”—Sec. 11.

The following principles are laid down by the court, in pronouncing their decision:

I. The judgment was perfected in June 1847. The Code proper, only applies to suits commenced "after the first day of July, 1848. The supplemental act, only makes certain provisions of the Code, and, among others, the right of appeal, applicable to pending suits. This court has repeatedly held, that, where judgment has been perfected before the Code took effect, the action could not be deemed pending within its provisions. (1 Comst. 423, 426, and 601.) The motion, therefore, was not a future proceeding in a pending suit."

"II. The supplemental act, restricts the right of appeal to judgments, decrees, and final orders. Final orders in this act, refer either to final orders in special proceedings in the nature of judgments, final decrees, or final orders upon summary applications after judgment. In the latter case, this court has held that it refers to some proceeding based upon the judgment or decree, and assuming its validity; as a proceeding against the judgment debtor under section 247, or an application of a judgment creditor for the surplus on a foreclosure, and cases of that kind. (1 Comst. 187.)

"III. The 457th section of the Code of 1849, does not affect the case. That refers to judgments, orders, and decrees made before the first day of July, 1848. It also restricts the right of appeal, to cases when a right of review existed, before the Code went into operation. No such right, in a case like this, existed before the Code."

The appeal should, therefore, be dismissed.

The above are all the provisions in relation to the retrospective effect of the Code, as they stand in the amended measure of 1851. They supersede in effect, as before noticed, the greater portions of the supplemental act. As, however, questions in regard to the operation the latter may still often arise, and as some of its provisions may be held to be still applicable, and those of section 9 are unquestionably so; a short notice of that act, as last amended in 1849, is subjoined.

By section 2, the following provisions of the Code of 1849, are in terms rendered retrospective.

§ 2. The provisions of the Code of Procedure, contained in the following sections thereof, are hereby applied, so far as the same are applicable, to future proceedings in civil suits, whether at law or in equity, pending on the first day of July, 1848, as follows:

, in

1. Sections seventy-two, one hundred and twenty-one, one hundred and sixty-nine to one hundred and seventy-six, both inclusive, three hundred and fifteen, and three hundred and eighty-eight, to proceedings in actions in the supreme court, in the county counts, i the superior court of the city of New York, in the court of common pleas for the city of New York, in the mayors' courts of the cities of Albany, Hudson, Troy, and Rochester, and in the recorders' courts in the cities of Buffalo and Пtica.

2. Sections two hundred and ninety-two to three hundred and two, both inclusive, to executions on a judgment or decree in any of those