Lead Opinion
. This- action involved a conditional sale? contract on a
Defendant Mobile Home Finance Company, a corporation, hereinafter referred to as defendant, perfected an appeal to this court. Subsequent to the filing of the appeal, defendant filed a motion for extension of brief day, supported by an affidavit indicating that it intended to restrict the issues of the appeal to the effect and validity of remedial legislation passed by the Seventy-fourth (Extraordinary) Session of the Legislature of Nebraska, 1963, and specifically Legislative Bills 16 and 17. Defendant’s brief is restricted to these issues.
Plaintiffs challenged the right of the defendant under our rules to abandon its objection to the finding of the trial court on the evidence adduced and to perfect its appeal solely on the basis of the new legislation. Under Rule 8a 2 (4) of the Revised Rules of the Supreme Court, 1963, only assignments of error urged in the trial court will be considered in this court. We are dealing here with a special situation which constitutes an exception to the rule. Legislation affecting the merits of a controversy adopted subsequent to a trial in the district court dealing with a subject matter with which the Legislature has the power to act retroactively is an exception to the requirement that only assignments of error assigned in the trial court may be inquired into in this court.
Plaintiffs argue also that a case in Nebraska must be determined on the law as it stands when the judgment of the lower court is rendered therein. On the general
In the early case of Kleckner v. Turk,
Since the submission of the case herein, L. B. 16, Laws 1963, Special Session, chapter 8, page 98, has been determined to be special legislation and in violation of Article III, section 18, Constitution of Nebraska, and therefore unconstitutional. Davis v. General Motors Acceptance Corp., supra. L. B. 16, therefore, will not be discussed further herein.
L. B. 17, Laws .1963, Special Session, chapter 9, page 103, which amends the penalty sections of the Installment Loan Act, was held to be valid and constitutional and to be applicable to all loans which are subject to the Installment Loan Act, except where an action on such loan has been reduced to final judgment. Davis v. General Motors Acceptance Corp., supra.
On this latter point, L. B. 17 specifically provides as follows: “Sec. 5. Except as to those transactions on
Inasmuch as .many, of , the issues raised-by. the parties herein have-, been exhaustively, discussed. in- Davis v. General-, Motors Acceptance Corp., supra} we .concern oprselves in-.,this opinion only :with two narrow problems. Has the action herein been-reduced to final: judgment,; and- if not;, is the new law applicable because the action of, the -Legislature-took plaqe after-judgment-was •rendered, in the district court and while the appeal was pending' im-this; court? We will consider.them in reverse order;;
¡There is some disagreement as to what law should be applied where' judgment has been rendered in a. court of original jurisdiction. and is pending.in an, appellate court on appeal when a change is made in the law. There seems, however, -to be . very little disagreement - as to what law should be-applied, where penalties are involved, as noted -in the following found at page 1332 of an Annotation-in 111 A. L. R. 1317: “Although there is some authority to the contrary (Taylor v. Rushing (1829) 2 Stew. (Ala;) 160; Dunham v. Anders (1901),
, In 5 Am. Jur.- 2d, .Appeal and Error, § 729, p. 173, we find tbie following: “Where, the controlling, lay 'has changed.between.the entering of the decision-beloy and the..consideration of the ¡matter, qn .appeal- it has been said-that the. case-should-he determined..in .the light of the current law, as it existed at time of the- -appellate decision, at least, where, the- change in .the. law wa.s ¡intended-.to-be-retroactive.”-, • .4 ..............
-Where .the .Legislature .has the. right,to, act .retroactively, the law appears to be-settled in Nebraska. . If. it desires to do so, it may apply the , legislation, to cases pending on appeal. . In City of Beatrice v. Gage County,
There is no question but that the Legislature as to penalty provisions had the right to provide that L. B. 17 would be effective as to cases pending on appeal. The question then is not what the Legislature could lawfully do, but what it actually did do in L. B. 17.
It is the plaintiffs’ contention that the Legislature, in using the term “final judgment” used it in its generally accepted sense, which in this case would mean a judgment disposing of the merits, of the controversy, between the parties in the court of original jurisdiction. This, in a strict legal sense, appears to be the universally accepted meaning of the term. A final judgment is one which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for. 3 Blackstone Comm. 398.
The rule announced by the United States Supreme Court, unless the context of the act requires otherwise, is as follows: “The rule is well settled and of long standing that a judgment or decree to be final * * * must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but execute the judgment or decree it had already rendered.” Bostwick v. Brinkerhoff,
A final judgment is one that disposes of the merits of the case in the court of original jurisdiction. See, Nelson v. Brown,
It is axiomatic that only final judgments are appeal-able to this court. See cases collected under Nebraska Digest, Appeal and Error, Key No. 66. This has always been the Nebraska rule. In Daniels v. Tibbets,
In Anson v. Kruse,
Our statute defines “judgment” as: “* * * the final determination of the rights of the parties in an action.” § 25-1301, R. S. Supp., 1961. In section 25-1905, R. R. S. 1943, we find the following language, which indicates the application of the common meaning of the term “final judgment”: “The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment * * * sought to be reversed, vacated or modified.” (Emphasis supplied.)
In the instant case judgment was rendered in the district court against both defendants. Only one of them,
.¡.Our law ..specifically provides that.no appeal shall ,acf ay a supersedeas -unless a supersedeas, -bond is, filed). ,§ 25-191-6; R..R;. S.„ 1943. Unless- such bond-is. filed a judg7 ment-.-is enforceable- by. appropriate writ even-;though appeal may be pending. Could this be done if we .did.not consider, the-'judgment as final until reversed or vacated?
, .Even though -a judgment has been appealed and affirmed in- this court, it still, might subsequently be vacated for fraud-in a proper case. -Under the provisions of section 25-2001, R. R. S. 1943, many judgments which have been considered final for years have been vacated. No one questions, the fact that until -vacated they were final-judgments. - • . . . .. -,- ;
A case closely analogous in many ways to the instant one because of the similarity,of statutory provisions that a, judgment may-be enforced unless- superseded - and .a retroactive statute., was involved, is In re Bailey, 40 N. Y. S. 2d 746,
“The expression ‘final judgment’ has-a well-defined meaning in the Civil Practice .Act., . It designates that judgment of the court of original, jurisdiction by which the rights of the parties, are' adjudicated and..determined. The finality of the judgment , so entered is not affected by.the pendency of an.appeal.,.* *.* In..this State, in the absence of a stay a judgment ..entered in the .Supreme Court has completé finality. .Execution .may be entered thereon even though an appeal is., pending. The -judgr ment may be satisfied .while the appeal is pending. Though there may be a reversal and ánother final'judgment, nevertheless, the first judgment was a final judgment ih the action.” This case was affirmed by the Court of Appeals in In re Bailey,
Tn United States Cas. Ins. Co. v. Gilmore, 6 Ohio L. Ab. 334, the court held that .proceedings in error to reverse a judgment do .not render it any less final.
In Edwards v. Fidelity & Casualty Co. of New York,
In Sweet v. Sherman,
In Gray v. Sawyer (Ky. App.),
There is an even more potent argument as to the meaning intended by the language used in L. B. 17. In City of Beatrice v. Gage County,
For the reasons given, we find L. B. 17 not applicable
Affirmed.
Dissenting Opinion
dissenting.
The question presented in this case is the meaning of the words “final judgment” as used in section 5, L. B. 17, Extraordinary Session, 1963. This section states in part: “Except as to those transactions on which an action at law or in equity has been reduced to a final judgment as of the effective date of this act, the penalty provisions of * * * (L. B. 17) shall apply to all transactions made prior to the effective date of this act.”
The general rule is that a statute which the Legislature could properly make retroactive, which takes effect pending an appeal, should be decided on the law existing at the time of decision in the appellate court. I concur with the majority on this point. It is the holding of the majority opinion, however, that the questioned language is a restriction on the general rule and that any case that has been placed in the form of a judgment is not entitled to the benefit of the retroactive provisions of the act.
The words “final judgment” have varied meanings. Whether or not a judgment is final depends upon the sense in which it is used. A text writer has stated it as follows: “In determining whether a judgment is ‘final,’ no hard and fast definition or test applicable to all situations can be given, since finality depends somewhat on the purpose for which, and the standpoint from which, the judgment is being considered, and it may be final for one purpose and not for another.” 49 C. J. S., Judgments, § 11, p. 35.
I state without fear of contradiction that no case can be found that determines the precise point before us. The majority opinion relies on cases from this jurisdiction defining “final judgment” for the purpose of taking an appeal under our appeal statute. But the term “final judgment” as used in the statute before us does not in
The majority opinion relies largely on the case of In re Bailey, 40 N. Y. S. 2d 746,
The majority opinion states; as- a more potent reason for the result reached,' that' the'statute involved in City of Beatrice v. Gage County,
I submit. that the authorities" -cited in thé'májoritv opinion do not support-the result reached. I submit
-In' determining the intént of the Legislature in the usé of- an ambiguous provision, it is proper to eonsidér, as-an* aid to construction, the history of the legislation, the object to be accomplished, and the evils or- mischief sought to be remedied. The origin of the legislation with which we are here concerned arose in our holding the 1959- Nebraska Installment Sales Act unconstitutional in Elder v. Doerr,
Lending' agencies thereupon, assumed a position of injured innocence, asserting that the number and amount of such invalid loans was' such that the economy of the state ‘was threatened with serious consequences. A special session of the Legislature was cáíled and L. B. 17,'among others, was enacted, specifically providing fob its retroactive effect.
' The purpose of the act was to validate all previous installment sale contracts, not just , some of them, and to jreduce the penalty to a loss of interest and charges. This is'made cléar by the title to the act which provides: “An Act to amend *."* * relating to installfnent loans; to chahge the penalties' and the’ remedies relating' to instálljnént loans; to.declare that these amendments shall apply, retroactively to existing’ installment'.loans made prior to the effective date of ;this, act'; * * It will beobsérvéd that the title contained’nib words Of limitation upon loans made prior' to the effective date'of the act:;'
The object óf the legislation was to validate instalL ment contracts entered into' previous ’to-the-effective
At the same session of the Legislature at which L. B. 17 was enacted, the Legislature enacted L. B. 16, dealing with the same subject matter, and the latter may be considered in determining the intent of the Legislature in the present act. In section 3 of L. B. 16 it is provided: “In the event any such agreement is judicially determined to constitute, in whole or in part, a loan with interest, the applicable limit on such interest shall be that set forth in section 45-101, Revised Statutes Supplement, 1961, * * * and the sole remedy or defense available to such a buyer by reason thereof shall be that prescribed in section 45-105, Reissue Revised Statutes of Nebraska, 1943.” The judicial determination therein referred to contemplates the existence of a judgment. The intent of the provision is clear that the Legislature intended no limited operation of the act. From this it must be conclusively inferred that no such limited operation was intended in L, B. 17.
At the same session of the Legislature L. B. 19 was enacted. In that statute the general intent of the Legislature to validate all installment contracts entered into prior to the effective date of L. B. 17 is shown by the following language in section 1, subsection (4), thereof: “Common fairness and natural justice dictate that persons who contracted in good faith in accordance with such statutes, if judicially determined to be unconstitutional, should not be penalized or one party placed at a disadvantage to the other by reason thereof.” It was clearly the intent of the Legislature by the foregoing to validate all installment contracts previously made, and not validate some, but not others.
It is my conclusion that after considering the history of the legislation, the related statutes enacted at the same legislative session, the multiple meanings of the term “final judgment,” the object to be accomplished, the evils and mischief sought to be remedied, and the specific situation the Legislature had before it, the Legislature intended the words “final judgment” to mean a judgment that terminated the litigation in which contractual rights have been finally merged and vested in the judgment, and the judgment thereby placed beyond the power of the courts or legislatures to disturb as to its finality. A judgment from which an appeal has been taken has not, of course, reached such a finality. Under the holding of the majority, the retroactive benefit of the statute is denied to a lender whose contractual rights have been determined in any court, whether it be the justice, municipal, county, or district courts, even if an appeal is pending. I cannot bring myself to believe that the Legislature intended any such result. To me, the Legislature used the words “final judgment” in its general and colloquial sense, and not in any technical sense, which makes its meaning synonymous with a judgment completely adjudicating the litigation and beyond the power of courts or legislatures to' interfere.
Whatever may have been the methods employed or the motivations or pressures involved in its passage, the intention of the Legislature appears abundantly