CAMPBELL et al. v. IRON-SILVER MIN. CO., 83 F. 643

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. It will be observed from the foregoing statement that one new trial was had in the case at bar, as of right, on June 16, 1896, — nearly a year after the amendatory act of April 13, 1895, was passed and became operative. The case falls, therefore, within the language of said act; and the general question to be determined is whether the act of April 13, 1895, should be construed as applicable to pending cases, or as solely applicable to suits for possession of real property brought after the act took effect.

It is contended by the plaintiffs, in substance, 1hat the act in question is not applicable to suits which, were pending at the date of its passage, because, if thus applied, it would have a retroactive effect, in violation of

article 2-, § 11 of the Colorado constitution, which prohibits the enactment of laws that are “retrospective in their operation"; and, second, because the amendatory act, if held applicable to pending suits, and particularly to Jhe case at bar, would destroy vested rights. Both of these contentions would have great weight if it: appeared that an adverse verdict had been rendered, and was standing on July 12, 1895, when the amendment took ('fleet, and if the amendment was invoked to prevent the plaintiffs from having that verdict set aside without showing cause.

In that event it might well he claimed that the amended act, if thus ajiplied, would have a retrospective operation, and take away a right already vested under the prior law. But the conditions last mentioned did not exist when the act in question took effect, and it was then problematical whether they ever would exist. A. new trial as of right was. had on June 1(1, 189(5, and it is that trial, which occurred 11 months after the amendment:, that is invoked to prevent another ¡.rial except for cause shown.

The act, as applied to the case in hand, operates upon a state of facts which came into existence subsequent to its passage; and, as thus applied, it would seem to be no more retrospective, or unjust or unfair in its operation, than it would be if applied to a suit brought after its passage to recover the possession of real property upon a cause of action which existed when the act took effect. Mellingor v. City of Houston, 68 Tex. 37, 45, 46, 3 S. W. 249. It is urged, however, that the statute in force when this suit was hied, to wit,

section 272, above quoted, which allowed one new trial to each party on the payment of costs, without showing cause, created a vested right, of which a litigant could not be deprived by an amendment of the statute after a suit had been brought. With reference to this contention, it may be said that

section 272 is found in the Colorado Code of Civil Procedure, and is unquestionably it provision relating to (he remedy for the enforcement of a certain civil right It confers a privilege on litigants, in a certain class of civil suits, which the legislature; was at liberty either to grant or to withhold.

It is to be observed, further, that the privilege in question does not appertain ' o suits brought for the enforcement of private contracts, hut applies solely to a class of actions which sound in tort; and for that reason it is apparent that the withdrawal of the privilege by the legislature could not, in any event, operate to impair the obligation of a contract. Xow, the rule is well settled,- by a great: number of adjudications, that no one lias a vested interest in any particular remedy for the enforcement of a right.

The remedies which one legislature may have prescribed for the redress of private wrongs, a subsequent legislature can change or modify at pleasure,- and make the new remedy applicable to pending controversies, provided a substantial or adequate remedy is left, and provided, further, that the legislature is not prohibited from making (lie new remedy applicable to pending suits by some provision of the organic law. In this respect there is an .iniportant distinction between statutes creating rights and those which afford remedies. Von Hoffman v. City of Quincy, 4 Wall. 535, 553; Mason v.

Haile, 12 Wheat. 370, 378; Morley v. Railway Co., 146 U. S. 162, 13 Sup. Ct. 54; Willard v. Harvey, 24 N. H. 344, 352; Read v. Bank, 23 Me. 318, 321, 322; Hughes v. Russell, 43 Ill. App. 430, 433; Insurance Co. v. Flynn, 38 Mo. 483, 484; Harrison v. Smith, 2 Colo. 625; Smith v. District Court, 4 Colo. 235; Callahan v. Jennings, 16 Colo. 471, 474, 27 Pac. 1055; Ex parte McCardle, 7 Wall. 506; Story, Const. (5th Ed.) § 1385, and cases there cited; Endl. Interp. St. § 281.

It is true that the courts have, on some occasions, refused to apply statutes which dealt with the remedy for the redress of private grievances to existing controversies, and have held them solely applicable to actions thereafter brought.

But it will be found, we think, on an examination of most of this class of cases, that the refusal to apply to existing suits statutes which were plainly applicable thereto, and which merely changed or modified the course of procedure, was based either on the ground that, if. so applied, they would operate unfairly, and cause loss or inconvenience to the parties, or on the ground that the right involved had become so far established by acts done and performed in reliance on the prior law, and its continuance in force, that it would savor of injustice to take away such right by making the new law applicable to the pending controversy.

Railway Co. v. Woodward, 4 Colo. 162; Newsom v. Greenwood, 4 Or. 119; Bates v. Stearns, 23 Wend. 482; Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249. See, also, Hyman v. Bayne, 83 Ill. 256. It cannot be said that the mere bringing of a suit entitles the party who brings it to have the same conducted at every stage according to the course of procedure which was prescribed by law when the suit was commenced.

Actions' are always brought in, view of the known power of the legislature to change or modify rules of procedure at pleasure, and a litigant cannot consistently claim that, because the legislature takes away some privilege which was accorded to litigants when the suit was instituted, he is thereby deprived of a vested right.

No privilege is usually regarded as of more value to a litigant than the right of appeal, in case he is defeated at nisi prius; yet it is held in Colorado, and in other jurisdictions as well, that if, pending the suit, an appellate jurisdiction which existed at the commencement of the action is taken away, and the parties are thereby deprived of the benefit of an appeal, they have no right to complain. Harrison v. Smith, 2 Colo. 625; Smith v. District Court, 4 Colo. 235; Railroad Co. v. Grant, 98 U. S. 398; Gowen v. Bush, 36 U. S. App. 543, 18 C. C. A. 572, and 72 Fed. 299.

We conclude, therefore, that the act of April 13, 1895, was intended to control subsequent proceedings in pending cases as well as proceedings in suits which might be thereafter brought, except in those cases where a verdict was standing which, a litigant was entitled to have set aside, as of right, when the act took effect. At all events, we can perceive no sufficient reason for holding the act inapplicable to a case like the one at bar, where a trial was had, as of right, months after the statute had become operative.

In a number of the cases heretofore cited, statutes regulating procedure were held applicable to pending cases by virtue of their general provisions; and in Re Claasen, 140 U. S. 200, 11 Sup. Ct. 735. it was decided that a statute granting a writ of error from the supreme court of the United States to the various circuit and district courts was applicable to a pending case in which a verdict of conviction had been returned before the statute was enacted, although, previous thereto, no writ of error in criminal cases had been allowed.

The statute in question, as applied by the trial court to the case at bar, did not deprive the plaintiffs of a rested right, but, at most, only took away a privilege which in a certain contingency, that might never happen, they would he entitled to assert, and for that reason the right was inchoate or incomplete. The judgment of the circuit court is therefore affirmed, and, as the case has been considered and decided on the merits, the motion by the defendants below to dismiss the writ of error will be overruled, without expressing any opinion as to the merits of the motion.