
    A. D. Searle et al. v. Calvin Adams.
    
      Error from Douglas County.
    
    Section 19, act of Feb. 9lh, 1864, for restoring burned records in Douglas county, providing that the plaintiff in any action pending in the District Court of that county, “ or in which summons had issued on the 21st day of Aug. 1863, may commence a new suit upon the same cause of action as in other civil actions, and the defendant shall not be allowed to plead the statute of limitations unless he could have pleaded it in the original action, ’ ’ held not in conflict with the constitutional law preservative of vested rights.
    "When the right of action was barred July 8th, and a summons was issued March 23d, 186], but not served on defendant, plaintiff in error, August 21st, 1863, when the records were destroyed, held that there is not presented a case as to which the general limitation of actions was sought to be suspended by said section of the legislative act.
    The decision in Bobinson v. Kinney, [2 Kans., 184,] that a note drawing interest at five per cent per month, draws that rate until maturity, and after that at the rate fixed by law, confirmed and held that a computation by the court below at five per cent per month until maturity, and at ten per cent from that until the time of the change of the rate and at a higher rate from then until judgment, was error.
    The record shows that the defendant in error commenced an action March 23d, 1861, in the District Court of Douglas county against the plaintiffs in error, on a promissory note dated April 5th, 1858, payable “ on or before ninety days from the date, with interest from date at the rate of five per cent per month.” Service of summons was had on all the makers of said note except Searle, who was not served, and the suit continued, pending until Aug. 21st, 1863, when the entire records and papers of the District Court for that county, including those in this case were burned up. The said Calvin Adams afterwards on the 8th day of August, A. D. 1865, commenced a new action against the plaintiffs herein on said note, and plaintiffs answered denying each and every allegation, and pleaded the statute of limitations. The cause was tried at the November term, A. D. 1865, of said court, and tbe court found the facts as stated, and as conclusions of law that tbe said Galvin Adams was entitled to recover on said note against all of tbe plaintiffs bere, tbe amount for wbicb said note was given, together with interest thereon at tbe rate of five per cent per month until July 5th, 1858, tbe maturity of said note, and at tbe rate of ten per cent per annum from said 5th day of July 1858, until June 1st, 1863, tbe day tbe law of that year changing tbe rate of interest went into effect, and then at tbe rate of five per cent per month again until judgment, and rendered judgment accordingly; to all of wbicb tbe plaintiffs excepted.
    Tbe case was brought bere on such exceptions.
    
      John JETutchmgs, for plaintiffs in error, submitted:
    I. Tbe defendant Searle, in tbe original suit, not bav ing been served with summons previous to tbe destruction" of tbe court records, action on tbe note as to him was barred by tbe statute of limitations, and tbe court below erred in rendering judgment upon its finding of tbe facts, against him.
    If it is claimed that section nineteen of “ Tbe act relating to records and proceedings in tbe county of Douglas,” (Laws 1861, page 91,) removes tbe restriction, or deprived tbe defendant Searle of tbe right to plead tbe statute in this case, we answer that if the section referred to is entitled to such a construction, it is retroactive, impairs a vested right, and is unconstitutional and void. See Burch v. Newberry, 10 NY. Bep., 375, 392 ; 1 Kent Com., 511; Broom’s Legal Max., 69; Sedg. on Constr., 196, 197-8; SrmtKs Com., 291, 295, secs. 151-2, dec.; Id., 881, sees., 759, 760-61, p. 893, sec. 772; Id., 531-35, secs. 368, 371; Woart v. Wi/nnick, 3 N. H. Bep., 177; Merrill v. Sherbowrne, 1 Id., 199; McKinney v. Springer, 8 Blackf. Bep., 506 ; Slipp et al. v. Brown, 2 2nd. Bep., 617.
    Tbe right to plead tbe statute of limitations was vested in Searie before tbe records were destroyed, and before tbe act containing this section was passed. But the section referred to is not liable to such a construction. Under it Searie clearly had a right to plead the statute. Its language is, “ the defendant shall not be allowed to plead the statute of limitations unless he could have pleaded it in the original action.” Searie could have pleaded the statute in the original action any time after July 5th, 1861, not having been previously served with summons, and hence section nineteen did not even with the strictest construction deprive him of that right. It is a general rule that statutes are not to be construed retrospectively or to have a retroactive effect. Smith's Com., 308, seo. 172; Id., 679, seo. 533 a/nd cases cited in note. Sedg. on Const. law, 191 to 198.
    II. The court erred in allowing Adams interest on the note at the rate of ten per cent per annum from July 5th, 1858, to June 1st, 1863, and at the rate of five per cent per month from June 1st, 1863, until judgment. The legal rate of interest at the time the note became due was six per cent, and that only should have been allowed. Lems 1855, p. 433; Robinson v. Kinney, 2 Kerns. Rep., 184; Brewster v. Wakefield, 22 How. U. S. Rep., 118 ; U. S. Bank v. Chapin et al., 9 Wend., 470; Macomber v. JDwnham, 8 Id., 550.
    
      Gr. W. Smith, for defendant in error, submitted:
    1st. Section 19 of the act of 1864, was an extension of the limitation in all cases pending in the District Court of Douglas county, on the 21st day of August, A. D. 1863, in which summons had issued. That as the record shows that summons had issued in the action previous to that date, and although it was not served on plaintiff in error, (defendant below,) still the cause of action as to him would not, under that act, be barred until two years from the day that law went into effect.
    
      
      2d. That limitation laws are completely under the control of the legislature, as they relate only „ to the remedy. No constitutional provision preserving rights to property is thereby disturbed or affected. There can be no vested right in a remedy.
    3d. The computation of the amount due is correct. The judgment was rendered after the interest law of 1863 went into effect, and the computation therefore, must conform to that as to all interest accruing after its passage; and by that act the interest on a note like the one at bar draws the same rate after as before maturity. Previous to the passage of that law the rate was properly computed at ten per cent.
    When the rate of interest is altered by law during the accruing of the interest, the rate so established, governs. 1 Am. Lead. Gases, 530; Bulloch v. Boyd, 1 Hoff., 294, 300; Thorntons v. Fitzhugh, 4 Leigh., 209; 2 U. 8. Eg. Dig., 103, sec. 42.
    
   By the Court,

Crozier, C. J.

In this case the irrepressible statute of limitations is again presented for consideration. Eor some years past upon the disposition of each succeeding case involving a construction of this statute, it was considered by bench and bar, that fiction itself could scarcely conceive of a new question to arise thereunder, but as term after term rolls around, there are presented new questions comparing favorably, in point of numbers, with Falstaff’s men in buckram, thus adding to the legions that have gone before, a new demonstration of the propriety and verity of the adage that “ truth is stranger than fiction.” With the heat of 98 degrees of Fahrenheit, in the shade, and the newspapers teeming with reports of the ravages of our great common enemy, who, the more effectually to accomplish his double purpose of capturing the imprudent and frightening the timid, has assumed the form of the Asiatic monster, it might be supposed by the unthinking that the consideration of such questions would be entered upon rather reluctantly. But we beg to disabuse the public mind of any such heresy. Oases might be imagined where “ smashes ” would not stimulate, nor “ cobblers ” quicken, nor “juleps” invigorate; but a new question under our statute of limitations, in coolness and restoring power, so far exceeds any and all of these, that when one is presented, the “ fine auld Irish gintleman’s ” resurrection under the circumstances detailed in the song, becomes as palpable a realty as the “ Topeka constitution or the territorial capital at Mineóla.” The powers of a galvanic battery upon the vital energies are wholly incomparable to it. So that the consideration of this ease, upon this day of wilted collars and oily butter, should not entitle the court to many eulogies for extraordinary energy in the fulfillment of its duties.

In the case at bar, this court is asked to say, that upon the facts found by the judge of the District Court, no judgment should have been rendered against Searle; and in making this request, counsel was understood to intimate that some mischievously disposed persons, with-a diabolical intent, not clearly revealed, while organized as the legislature of the state, had made a violent and unwarrantable onslaught upon the constitution, — that constitution which this court, as a tri-pedal pier, is exerting its utmost endeavors to support, — that constitution which, not only from patriotic and moral, but from alimentary considerations as well, we are bound to maintain and defend. Judging from the argument of counsel, considered with reference to its length, earnestness and number of authorities cited, we did not know but that while we were sitting attentively listening to what was said in exposition of the attempt aforesaid, even then the constitutional fabric was toppling to its fall and needed but an affirmance of the judgment of the court below to bring it down about our ears with a crash which should cause constitutional governments all over the world to quake upon their foundations, and inflict upon the body of constitutional liberty, contusions which must inevitably result in her speedy mortality. Being in a somewhat “ melting mood ” to-day, we would be pleased to gratify counsel by adopting his fears, growing out of the supposed nefarious attempt of the legislature in the passage of the 19th section of the act concerning the lost records of Douglas county, but supposing he will be somewhat gratified at a decision in his favor upon any ground, we proceed now to render such decision, asking to be excused from resolving ourselves into a state of excitement on account of the supposititious attack aforesaid, especially as we are not convinced that any such attack was contemplated or accomplished.

The right of action accrued against Searle on the 8th of July 1858, and was barred July 8th, 1861, because no summons dated prior to that time was served upon him; the twenty-seventh section of the Code providing that an action shall be deemed commenced within the article on limitations, at the date of the summons which shall be served on each defendant. The summons issued March 23d, 1861, was not served upon Searle, and if an alias had been issued after July 8th, 1861, and before the destruction of the records in 1863, and served upon him, he might have successfully availed himself of the limitation provided.

Section nineteen of the act concerning the burned records of Douglas county, does not apply to such a case. It is as follows: ■ “ The plaintiff in any action pending in said court, or in which summons had been issued on the 21st day of August last, instead of setting out the pleadings therein, as hereinbefore mentioned, may commence a new suit upon the same cause of action as in other civil cases, and the defendant shall not be allowed to plead the statute of limitations, unless lie could have pleaded it in the original action, and the petition of the plaintiff shall allege the time when the original action was commenced, as near as may be, and that it was peudiug, or summons had issued, as hereinbefore mentioned.”

It is as transparent as the soup of which Oliver Twist implored an additional supply, that the case at bar is not one of those, as to which the general limitation was sought to be "suspended by the section quoted; wherefore the District Court erred in rendering judgment against Searle.

In the case of Robinson v. Kinney, (2 Kans., 184,) this court held that a note, like the one sued upon in this case, would draw interest until maturity at five per cent per month, and thereafter at the rate fixed by law in the absence of a contract upon that subject. This decision we are not disposed to disturb. There was therefore, error in the computation of interest in this case by the court below.

The judgment of the District Court will be reversed and the cause sent back for judgment in accordance with this opinion.

All the justices concurring.  