
    Bartol v. Eckert.
    
      Constitutional law—Revivor of dormant jiidgment—Statute oj limitations.
    
    1. The act of March 31, 1876 (73 Ohio Laws, 148), which provided, “ That in any case in which a judgment has been or may hereafter be rendered in any court, whether a court of record or not, and such judgment is or shall hereafter become dormant, action can only be brought to revive the same within twenty-one years after it became dormant,” is not in conflict with, section 28 of article 2 of the constitution, inhibiting the passage of retroactive ^iws.
    2. The right to revive a dormant judgment by motion and conditional order, was, under the act of March 31, 1876, barred in twenty-one years after the judgment became dormant.
    3. Non-residence of the defendant in the county and state, or his absence therefrom, and coverture of the plaintiff, are not, under the above-named act, disabilities that will prevent the running of the statute of limitations against the revivor of a judgment by motion and conditional order.'
    (Decided Jan. 24, 1893.)
    Error to the Circuit Court of Wayne county.
    The facts are stated in the opinion.
    
      Alfred J. Thomas, Frank Taggart, J. W. Mooney, and O. W. Aldrich, for plaintiff in error.
    I. Does the statute, which bars an action to revive a dormant judgment, bar a revivor in the manner actions are revived before judgments? If not, there being no other defense, the judgment of the court below should be reversed, and the conditional order of revivor should be made absolute. In the code of civil procedure, sec. 417, as amended March 10,1860, S. & C. 1061, there was but one method of reviving a judgment, which was the same as prescribed for reviving actions before judgment, and by the act of April 16, 1867, S. & S. 562, this section was amended.
    It was held in the case of Misner v. Misner, 41 Ohio St., 678, that in a proceeding under this act of 1867, such a petition and summons did not constitute a new action, but were additional proceedings in the original action.
    In the Revised Statutes, sec. 5367", the foregoing words, quoted from the act of 1867 were omitted and the words “or by action” substituted; but this it seems to us was only a shorter phrase to express the same thing.
    Since 1867, therefore, a person wishing to revive a dormant judgment has an election of two remedies, one by conditional order, and the other by action.
    
      The last clause of the sec. 5367, recognizes the distinction by providing that the lien “shall operate from the time of the entry of the conditional order, or the filing of the petition.” Section 5368, which was the statute in force when this conditional order was taken, did not bar anything but an action to revive a judgment, and this was the case with the original act limiting the action to revive judgments, passed March 3,1876, 73 Ohio Raw, 148. Therefore, unless a proceeding to revive a judgment by a conditional order is an “action” as defined in the code, the act of 1876, or the act of May 14, 1878, now sec. 5368, does not create a bar. This is expressly provided in Chinn v. Trustees, 32 Ohio St., 236.
    Is this method of reviving a judgment an action? There is but one form of action under the code which is known as a civil action, (Rev. Stat. sec. 4971,) which must be commenced by filing in the office of the clerk, a petition causing a summons to be issued thereon. Rev. Stat. sec. 5035. As no petition -is required and no summons is issued in the proceeding to revive a conditional order, it lacks these two essentials of an action. In the case of Chinn v. Trustees, it was held that the civil action is a substitute for such judicial proceedings as were previously known, either as actions at law, or suits in equity, and that it did not embrace proceedings in mandamus.
    If this is a proceeding, it is not an action under the code. The distinction is clearly made in the case of Coates v. Chillicothe Bank, 23 Ohio St., 431; Taylor v. Fitch, 12 Ohio St., 169.
    Can this section considered alone be construed as retroactive? The section reads, “No action shall be brought to revive a judgment after twenty-one years after it becomes dormant, unless” etc. This is not retrospective in its terms, and there can be no doubt that while the verb is in the present tense, it is used in a future sense, “shall become,” rather than in the pastor perfect tense, “has become,” as this last signification would embrace judgments which had been dormant more than twenty-one years, as well as those which had some time to run before the expiration of the twenty-one years.
    The consiruction would render' the act unconstitutional, under sec. 28 of article 2 of the Constitution, and it certainly would not be a remedial statute, unless more carefully worded than such a construction would necessarily imply. But in case of doubt, no statute will be construed as retroactive in its operation. Finney v. Ackerman, 21 Wis., 268; Kelly v. Kelso, 5 Ohio St., 199; Bernier v. Becker, 37 Ohio St., 72; State v. Rabbitts, 46 Ohio St., 178.
    If this section embodied the language of the original act upon this subject, further argument would be useless; but as the original act which was passed in 1876 and repealed by the act of May 12, 1878, codifjdng this title, was in its terms retroactive, the effect of its repeal and the enactment in this revision of this section, with the change in form, necessitátes an examination into two questions.
    There was no statute of limitations against the revivor of a judgment when the judgment now sought to be revived became dormant, and the action was not barred by the limitations against causes of action against specialties. Tyler v. Winslow, 15 Ohio St., 364.
    That in its terms this act is retrospective there is no doubt, and that this not only applies to judgments rendered, before its passage, but to those that were dormant when it was passed, as in this case, there can be no doubt, and the only doubt which can arise grows out of the use of the words “becomes dormant;” and this doubt is, whether the statute is intended to bar the revival of judgments which had at that time been dormant the full twenty-one years, or only those which had been dormant a less time.
    If it is a retroactive law, it is not constitutional, because the power to pass such acts is taken from the legislature by section 28 of art. 2 of the Constitution of 1851, and it clearly is not within the exceptions of the proviso of that section. Rairden v. Holden, 15 Ohio St., 207.
    As under this statute of 1876, if a judgment had been dormant twenty years and three hundred and sixty-four days when the statute went into effect, an action upon it would be barred the next day, and no exceptions were made, giving a reasonable length of time to bring the action in cases where there was but a short time before the expiration of the twenty-one years, it certainly “imposes a new disability,” and therefore is within the inhibition of the constitution against passing retroactive laws.
    There seems to be but one method of escaping the conclusion that this act is unconstitutional, and that is by holding as claimed in the first part of this brief, that there being two methods of reviving a judgment, and that this statute only affecting one, an adequate remedy still remained.
    In either case this act had no effect in barring this proceeding. If this act was unconstitutional, and upon its repeal the revisers left out the provisions which rendered it so, and used language which rendered the new act valid, it will' undoubtedly be presumed that it was the intention of the legislature adopting the revised- act, to free it from the unconstitutional features of the original act, rather than that it was the intention to convey the same ideas under different language. We go farther, and maintain that if an act is passed which contains provisions which render the act of doubtful constitutionality, and before this matter has been judicially determined this act is repealed by a revision, in which the doubtful language is removed and language substituted, which in its ordinary acceptation will be of unquestionable validity, it must be presumed that this change was made purposely, and in order to free the act from the charge of doubtful constitutionality, and that the court will not give it a strained construction which will render the act of doubtful validity. So if the act of 1876 was of doubtful constitutionality, and the section of the Revised Statutes substituted, hy a fair construction of its language, is free from that doubt, there can be no question, it seems to us, that these retroactive portions of the former act are removed by its repeal, even though it is repealed by a revision of the whole chapter or subject.
    As the act remained in force but two years, and no change had taken place in the status of the judgment during that time, and the act was then repealed, the effect of this statute is terminated by its repeal unless its provisions are considered as embodied in the new act. Ogden v. Blockledge,. 2 Cranch, 272; Osborne v. Jaines, 17 Wis., 578.
    
      Dillon & Swayne, Rush Taggart, and John McSweeney, for defendant in error.
    I. The act of March 31, 1876 (73 O. E. 148), provided the limitation of time within which any proceeding might be brought to revive this judgment.
    It will be remembered that, after the revivor of this judgment in 1858, it became dormant again on the 22nd of February, 1863. No express statute of limitations, limiting the time within which this dormant judgment might be revived, then existed in the state of Ohio. This condition of affairs continued unchanged until the passage of this act of 1876. Of course it cannot be claimed that it was not competent for the legislature to enact such a statutory limitation as it did enact in 1876, applying to all judgments then in existence or thereafter to be rendered. Such a contention seems to be conceded in the brief of the plaintiff’s counsel, the only contention being that, if this act applied to judgments then dormant and which had been dormant so long that no opportunity would be given to revivel-'after the act of 1876 took effect, such legislation would be unconstitutional. It is-not necessary for us here to discuss the question which is mooted by this suggestion in the plaintiff’s brief, because at the time this act took effect this judgment had only been dormant thirteen years, .and .there was left to the plaintiff opportunity to prosecute an action to revive this judgment, for eight years after the act took effect, or nearly one-half of the period fixed by the statute within which proceedings to revive might be commenced. In this connection also it may be suggested that almost coincident with the act of the legislature affixing this limitation of twenty-one years to proceedings to revive judgments, was the relief of the plaintiff from the disability of coverture, set up in her reply. We have, therefore, the clear, undisputed fact that from‘1876 to 1884, under this legislation of the state of Ohio, the plaintiff sat still and witnessed the statute running, without a single disability imposed upon her in any form, and allowed the twenty-one years fixed by the statute of 1876 to run out without taking a step towards the revivor of this judgment. It is also to be noticed that the plaintiff, although a married woman, is not within any of the exceptions of the statute, nor does the absence of the defendant from the state prevent the limitation of the statute from applying with full force and effect. As we understand the contention of the plaintiff, it is that, in some remote way, the statute of April 16, 1867, enables this party to proceed and relieves her from the operation of the limitation of the statute of 1876. One conclusive answer to this argument is that the statute of 1867 had been entirely repealed and superseded by section 5367 of the Revised Statutes, long before any steps were taken by the plaintiff to revive this judgment, and that she can get no benefits from the claimed distinction between the different methods of proceeding recognized by the act of 1867 for the revivor of judgments; whatever rights she lias in this matter are to be determined by section 5367 of the Revised Statutes. But the statute of 1867 does not warrant any such conclusion as the plaintiff’s counsel seeks to draw from it. From the case of Mistier v. Misner, 41 Ohio St., 678, cited by them in their brief, it is evident that this statute in providing the two methods of revivor, bjr conditional order < or by petition and summons, provides in each case only for additional proceedings in the old action. The two methods are alike then in character and results, but different in the means employed. This is of vital importance when we come to construe the language employed in the statute of 1876.
    II. Even if section 5368 be construed as differing in meaning from the act of 1876, it does not avail the plaintiff in error, for the reason that the act of 1876 applies, and governs the right of the plaintiff to revive this judgment.
    
      Under the construction of this act given in the case of Lafferty v. Shinn, 38 Ohio St., 46, it is very clear that, when the act of 1876 was passed and made applicable to the judgment sought to be revived in this case, the limitation therein provided affected the “cause of proceeding” thereunder, and that, under section 79, any subsequent changes of that legislation would not affect that statute of limitation as a rule of action governing that “cause of proceeding,” unless, in the amending or repealing statute, there was an express provision to that effect. In the revision of 1878 as carried forward into the Revised Statutes of 1880, by which this act of 1876 was molded into section 5368, there is no intention expressed to indicate that the provisions of the law of 1876 should not continue to furnish the rule of limitation as to ail judgments to which it applied at the time it was enacted, and to all to which it in terms applied up to the time of its amendment or repeal.
    III. The claim of unconstitutionality of the law of 1876 is without any foundation whatever.
    Even if the result contended for by the plaintiff in error followed from the law of 1876, it would by no means follow that it was an unconstitutional act as affecting vested rights acquired under existing laws. It is to be remembered that this proceeding to revive a judgment stands upon the same basis as the right to error proceedings or appeals, and is not protected bjr the constitutional provisions insuring to parties a right to “due process of law.” The plaintiff’s counsel forget that all such proceedings áre in no way matters of right, but are matters of favor granted by the legislature, and that they may be entirely taken away without regard to whether they affect pending proceedings or not, without affecting any constitutional right of the parties affected thereby. Sullivan v. Haugh, 82 Mich., 548; Railroad Co. v. Grant, 98 U. S., 398.
   Dickman, J.

The plaintiff in error, Mary E. Bartol, under the name of Mary E. Fleming, then a femme sole, recovered a judgment against the defendant in error, Thomas Thompson Eckert, on the 17th day of December, 1845, in the court of cpmmon pleas of Wayne county, Ohio, for the sum of $2,250.00, with costs. On the 24th day of May, 1850, execution was duly issued upon the judgment, and returned without being satisfied. Subsequently, on the 23d day or February, 1858, in a proceeding by motion to revive the same judgment, the judgment for damages and costs was revived in the name of Mary E. Bartol plaintiff, she then having become a married woman under that name.

After the revivor in the j^ear 1858, no action was taken upon the judgment until the present proceeding was begun in the court of common pleas of Wayne county, upon a motion filed September 24, 1885, setting forth that the judgment had become dormant, and asking that it might be again revived.

Upon affidavit that the defendant was a non-resident of the state of Ohio, an order was made in the action, that the dormant judgment be revived, unless sufficient cause be shown to the contrary; and the defendant was thereupon notified by publication, to appear and answer the motion for an order of revivor, and show cause why the judgment should not stand revived.

The defendant filed an answer to the conditional order of revivor, setting forth two defenses; first, that the motion to revive was not made within twenty-one years after the judgment became dormant; and second, that the motion was not made within one year after the judgment became dormant.

To the first defense in the answer the plaintiff replied: first, that on the 23d day of February, 1858, and ever since then, the defendant was and had been a non-resident of the county of Wayne, and state of Ohio, and absent therefrom during all that period, in parts unknown to the plaintiff until a short time prior to the commencement of this proceeding; and second, that before, and at the time the judg.ment had become dormant and was revived in the year 1858, and from thence until the year 1876, the plaintiff was and had been continuously a married woman, subject to the disabilities of coverture.

To the second defense in the answer a demurrer was sustained. The defendant filed a demurrer to the reply of the plaintiff, and the court sustained the demurrer, on the ground, that the statute of limitations of twenty-one years, as set up in the answer of the defendant, was a bar to the plaintiff’s right of revivor of the judgment, and refused to order that the same stand revived, as asked for by the plaintiff in her motion. To this action of the court the plaintiff excepted, and prosecuted a petition in error in the circuit court. The circuit court affirmed the judgment and proceedings of the court of common pleas; and to this action of the circuit court error is prosecuted in this court.

The only question, therefore, presented by the record for our determination, which we deem material, is, whether the right of the plaintiff to revive her judgment was barred in twenty-one years from the 23d day of February, 1863—the time when it became dormant. When it became dormant after its revivor in 1858, there was no statute of limitations in this state against the revivor of a judgment. But on March 31, 1876, (73 Ohio Raws, 148), an act was passed which provided: “That in any case in which a judgment has been or may hereafter be rendered in any court, whether a court of record or not, and such judgment is or shall hereafter become dormant, action can only be brought to revive the same within twenty-one years after it became dormant, except the person entitled to bring such action be at the same time such judgment become dormant, within the age of twenty-one, insane, or imprisoned, every such person shall be entitled to bring such action within fifteen years after such disability shall be removed.”

This act came under revision in May 1878, (75 Ohio Raws) 676), and was carried into the Revised Statutes of 1880, as sec. 5368, which reads as follows: “No action shall be brought to revive a judgment after twenty-one years after it becomes dormant, unless the party entitled to bring such action was, at the time the judgment became dormant, within the age of t-wenty-one years, insane, or imprisoned, in which cases the action may be brought within fifteen years after the disabilitj' has ceased.”

It is thus provided by the original act, that when “a judgment is or shall hereafter become dormant, action can only be brought to revive the same within twenty-one years after it became dormant”; while, by section 5368, “no action shall be brought to revive a judgment after twenty-one years after it becomes dormant." If it was intended by that section to apply the statutory limitation prospectively—only to judgments that might become dormant after its enactment, and not, as in the act of 1876, to judgments that were dormant at the time of its passage, the proceeding to revive the judgment under consideration would, nevertheless, be governed by the act of 1876. When a statute is repealed or amended, such repeal or. amendment cannot affect a cause of proceeding existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act. Section 79, Revised Statutes. The act of 1876, when it took effect, was obviously applicable to the judgment sought to be revived in this case, and which became dormant in the year 1863. The right to revive that judgment was barred bjr the act, in twenty-one years after thus becoming dormant, and the limitation imposed by the act regulated the cause of proceeding under the same. But there is nothing in section 5368, as it stood in 1880, that expressly indicates an intention to change the limitation for the revivor of any judgment to which the act of 1876 applied at the time of its enactment, or of its amendment or repeal.

It is contended, however, that conceding that the law of 1876 is applicable to, and controls the revivor of the judgment recovered by the plaintiff, it was retroactive, or retrospective in its provisions, and therefore, in conflict with section 28 of article 2 of the constitution of Ohio. Courts will not declare a statute void, unless the nullity and invalidity of the act are placed, in their opinion beyond all reasonable doubt; °and until so placed, it is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of. its validit}r. Ogden v. Saunders, 12 Wheat. 213.

In Rairden v. Holden, 15 Ohio St., 207, this court cited with approval Judge Story’s definition of a retrospective statute, as found in The Society v. Wheeler, 2 Gall. 139, viz:

“Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already passed, must be deemed retrospective.” In the present case, no vested right of the plaintiff has been taken away or impaired, nor has the plaintiff been subjected to any illegal disability by the statute. She had her day in court to prosecute the original action—her remedy by due course of law, as ordained in the constitution—and recovered judgment against the defendant. It is well settled, that a party to a suit has no vested right to an appeal, or writ of error from one court to another. In Lafferty v. Shinn, 38 Ohio St., 46, it is stated that in the right to appeal to the courts, there is not involved a further right to appeal from the judgment of the court to which such application for redress is made; on the contrary, that a right to appeal from such judgment exists only when given by statute; that such right to appeal, when so given, may be taken away by statute, even as to cases pending on appeal; and that the same thing is true with us as to proceedings in error. See Com. v. Messenger, 4 Mass. 469; Ex parte McCardle, 7 Wall. 506; The Marinda v. Dowlin, 4 Ohio St., 500; Railroad Company v. Grant, 98 U. S. 398. We see no satisfactory reason why a different rule should be applied to the revivor of a dormant judgment, the recovery of which implies that there has been a previous recourse to the courts, and that due process of law has been invoked.

In fact, after the act of 1876 took effect, the plaintiff had over seven j^ears within which to institute proceedings to revive the dormant judgment; and after the year 1876, she was no longer under the disability of coverture. And recognizing the principle that statutes of limitation should allow a reasonable time after thej>- take effect for the commencement of suits upon existing causes of action, the opportunity had by the plaintiff to begin proceedings after the act took effect, would have been manifestly reasonable and sufficient, even if the limitation had referred to the commencement of the original action. But, the limitation in the statute did not go to the merits of the action—to the establishment of a contested right—but to a remedy for the enforcement of a right already established. When an alleged conflict between a statute and the constitution is not clear, the implication must always exist that no violation was intended by the legislature. And so, as said by the court, in Newland v. Marsh, 19 Ill. 384, “acts of the legislature having elements of limitation, and capable of being so applied and administered,'although the words are broad enough to and do, literally read, strike at the right itself, will be construed to limit and control the remedy; for as such they are valid, but as weapons destructive of vested rights, they are void, and such force only will be given the acts as the legislature could impart to them.”

The argument advanced that the limitation of the statute does not operate to bar the right of revivor of the judgment, for the reason, that the defendant was a non-resident of and absent from the county and state as alleged, and that the plaintiff labored under the disability of being a married woman from the year 1858 until the year 1876, cannot, in our view, avail. The act of 1876 does not embrace absence from the county or state, or the disability of coverture, among the disabilities therein mentioned. Under section 4989 of the Revised Statutes, if, when the original cause of action accrued to the plaintiff against the defendant, the defendant was out of the state, the period limited for the commencement of her action would not have begun to run until he came into the state; and if, after the cause of action accrued, he had departed from the state, the time of his absence would not have been computed as any part of the period within which the action must have been brought. But, the statute contemplates two different objects—one the revivor of a dormant judgment, and the other the commencement of an action. To each object, distinct disabilities are attached, and we discover no grounds for interpolating into the law regulating the revivor of judgments, disabling provisions which have not been placed there by the legislature. Besides, such absence of the defendant has not prevented the plaintiff from effectively instituting proceedings of a revivor, for, it has been competent to her for that purpose, to make due and legal service upon the defendant by publication. Act of March 10, 1860, S. & C. 1061; Act of April 16, 1867, S. S. 562; sec. 5367, Revised Statutes, 1880.

It is urged, however, in behalf of the plaintiff, that under the statute, dormant judgments may be revived either by motion and conditional order, in the manner prescribed for reviving actions before judgment, or by action; that the twenty-one years limitation applies only to a revivor by action, and not by motion and conditional order, the mode adopted in the present case.

Original sec. 417 of the code of civil procedure provided: “If a judgment become dormant, it may be revived in the same manner, as is prescribed for reviving' actions before judgment.” By the act of April 16, 1867 (S. & S. 562), this section was amended by adding the words, “or by petition setting forth the judgment and the amount due thereon, and asking that the same be revived against the adverse party, on which petition a summons shall issue, and be served and returned as in other cases.”

For these amendatory words, the words, “or by action,” of substantially the same import, were substituted in sec. 5367 of the Revised Statutes (1880), which provided that, “when a judgment becomes dormant, it may be revived in the same manner as prescribed for reviving actions before judgment, or by action; * * * and the lien of the judgment shall operate from the time of the entry of the conditional order, or the filing of the petition.”

We have been unable to reach the conclusion that, in the revivor of judgments, because the act of 1876 provided that, “action can only be brought to revive the same within twenty-one years after it became dormant,” it was the intention of the legislature to impose no limitation upon the revivor of dormant judgments by motion and conditional order. We think the obvious design. was to fix upon twenty-one years, as the period within which dormant judgments could be revived, whether by motion and conditional order, or by action, so called.

In Misner v. Misner, 41 Ohio St., 678, where there was a revivor of a dormant judgment by petition, under the act of April 16, 1867, this court held, that the petition and summons did not make a new action, but were only additional proceedings in the original action. The two methods of revivor are analogous; the procedure in the two is similar; in neither is there a new inquiry into the merits of the suit. The word “action,” in the act of 1876, is not, we conceive, to be taken in a technical sense, as corresponding with “civil action,” under the code of civil procedure, but rather as signifying additional proceedings in the original action, authorized for the purpose of reviving a judgment. The application of the term “action” to a proceeding will not make it a “civil action” under the code of procedure, unless it has the same attributes and functions. Thus “the power given to courts of record to vacate or modify their own judgments or orders, after the term at which they were made, does not confer original jurisdiction. The power thus conferred is only that of further proceedings, for the causes enumerated, in an action after judgment; andaré, therefore, merely special proceedings in an action, and are not an original action, or the ‘civil action provided by the code.’” Coates v. Chillicothe, 23 Ohio St., 431. But to designate such proceedings by the word “action,” would not change their inherent character. Eor the aforegoing reasons, we are of opinion that the judgment of the circuit court and of the court of common pleas should be affirmed.

Judgment accordingly.  