
    REVIEW OF JUDGMENT UNDER. A STATUTE SUBSEQUENT TO ENTERING OF SUIT.
    [Circuit Court of Hamilton County.]
    John H. Gibson, Treasurer, v. Griffin T. Miller et al.
    Decided, November 14, 1905.
    
      Sale of Realty for Taxes — Joinder of Defendants and Causes of Action —Judgment—Tested Rights Under — Review of, Under Statute Subsequent to Entering of Suit — Retroactive Legislation — Amendment of Statute Touching the Remedy — Effect of Appeal.
    
    1. Ah act making broader the right of joinder may be made applicable to pending actions in which judgment has not yet been rendered.
    2. Since an appeal vacates the judgment appealed from and the cause stands in the appellate court as a pending action without judgment, the provision of Section 3 of the act of April 25, 1904, relating to joinder in suits for the sale of real estate for taxes, is applicable to suits pending at the time of its enactment and brought up on appeal subsequently thereto.
    Jelke, P. J.; Swing, J., and Giffén, J., concur.
   This action was begun in the court of common pleas by filing a petition on November 12, 1903, against Caroline B. Donohue et al, for the sale of certain real estate on account of unpaid taxes and assessments under an act entitled “To- amend Section 1104 of Revised Statutes of Ohio, passed April 4th, 1902” (9ñ O. L., 103).

On January 22, 1904, Caroline B. Donohue filed a demurrer:

“Now comes Caroline B. Donohue, one of the defendants herein, and demurs to the petition upon the following grounds:
“1. Separate causes of action against several defendants are improperly joined.
“2. There is a misjoinder of parties defendant.
“3. The petition does not state facts sufficient to constitute a cause of action.”

On April 2, 1904, said demurrer was overruled by the following entry:

“This cause coming on to' be heard on the demurrer to the petition by Caroline B. Donohue, the court on consideration overrules the same; to. ;all of which defendants! except; twenty-days’ time given to file answer.”

On August 4, 1904, judgment and decree for sale were entered against said Caroline B. Donohue, to which she excepted and gave notice of appeal. The docket also shows: “August 5th, 1904, notice of intention to appeal filed; August 5th, 1904, entry giving notice of appeal and fixing bond in the sum of $500;” which bond was subsequently given, and appeal duly perfected.

We are of opinion that the common pleas, court erred in overruling the demurrer of the said Caroline B. Donohue under the law as it stood when the petition was filed and when the demurrer came on for hearing 'and was passed upon by said court. We think that there were separate causes of action against several defendants improperly joined, and' that there was a misjoinder of parties, defendant.

On April 25, 1904, said Section 1104, as amended in 95 O. L., page 93, was again amended, and the following paragraph inserted :

“And in proceedings hereunder the county treasurer may join in -one action all or any number of lots or lands, but the decree shall be rendered severally or separately, and any proceedings may be severed in the discretion of the court for the purpose of trial, error or appeal, where an appeal is. allowed, and the court shall make such order for the payment of costs as shall be deemed equitable and proper.”

And Section 3d:

“This action shall take effect and be in force from and after its passage, and shall apply to all existing causes of action and pending actions. ’ ’

Section 79, Revised Statutes, provides:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

Since said cause came into this court on appeal, counsel for Caroline B. Donohue has again renewed and pressed the demurrer which the court below had overruled, and now contends that the amendment of April 25, 1904, which provides for and permits the joinder complained of, can not constitutionally be made to apply, inasmuch as this cause went to judgment below, and that the said Caroline B. Donohue has a vested right in having her rights and remedy determined under the law existing as it did prior to April 25, 1904. Counsel for Caroline B. Donohue rely on the case of Gompf v. Wolfinger, 67 O. S., page 144, the third proposition of the syllabus being as follows:

“A judgment which is final by the law's existing when it is rendered can not constitutionally be made subject to review by a statute subsequently enacted; and the act of October 22, 1902, to amend Section 6710, Revised Statutes, being incapable of a retrospective operation, does not confer upon the court jurisdiction to review' judgments which the circuit court had rendered prior to its passage and which were not subject to review under the provisions of the act of May 12, 1902. ’ ’

There is no doubt that a judgment which is final by the laws existing when it is rendered,'is an end to the controversy, and no legislative act can operate retrospectively to give an appeal or petition in error in derogation of such final judgment. The party in whose favor such judgment is rendered has a vested interest and any legislative act seeking to impair it would bé unconstitutional and void. This ease, however, presents a different situation. The matter of joinder is a matter relating purely to the remedy and does not affect any of the substantive rights of the parties, but merely the question of how, and when, and in what company those rights shall be worked out and determined.

The act making such joinder possible in this case was passed long prior to the rendition of the judgment appealed from;.at the time the act of April 25, 1904, was made applicable to pending actions there was no judgment. This act of April 25, 1904, removed the objection, because of which we think the common pleas court should have sustained the demurrer of April 2, 1904.

Again, the appeal which was duly prosecuted under laws existing and unchanged in that regard from the time of the filing of the petition until the present consideration, if entertained by this court, entirely vacated and wiped out the judgment of the court of common pleas, and the cause stands in this court as a pending action, without any judgment, and we see no reason why under the provisions of Revised Statutes, 79, and the special provision of Section 3 of the act of April 25, 1904, this latter law should not be applied to the matter of joinder which pertains purely to the remedy. If we felt that the act of April 25, 1904, affected any judgment in which Caroline B. Donohue had a vested interest, we would feel that the case of Gompf v. Wolfinger, supra, would apply, but the judgment and decree below were against Caroline B. Donohue, and it was her bond and appeal which has suspended the same, and why she should seek to use this judgment, which she desires annulled, and a decision contrary to which she seeks to obtain by her appeal in these proceedings, as a valid and substantial barrier to the application of an amendment touching the remedy, and claim a vested interest thereunder, we can not see.

"We are therefore of opinion that the case of Gompf v. Wolfinger does not apply and that the amendment of April 25, 1904, makes proper the joinder which was improper under the law of April 4, 1902.

Wm. F. Chambers, for plaintiff.

E. R. Donohue, contra.  