# State Ex Rel. Osage County Savings & Loan Ass'n v. Worten

> Supreme Court of Oklahoma · October 17, 1933 · 167 Okla. 187

URL: https://www.frixlaw.com/law-library/cases/3831004

## Case

- **Full name:** STATE Ex Rel. OSAGE COUNTY SAVINGS & LOAN ASS’N v. WORTEN, Dist. Judge
- **Court:** Supreme Court of Oklahoma
- **Decided:** October 17, 1933
- **Citations:** 167 Okla. 187; 29 P.2d 1; 1933 OK 545; 1933 Okla. LEXIS 56
- **Precedential status:** Published
- **Opinion:** Dissent by Swindall
- **Judges:** Andrews, Swindall, McNeill, Riley, Cullison, Bayless, Busby, Welch, Wind, Osborn
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3831004

## Opinion text

SWINDALL, J.
(dissenting). Owing to (ho fact that I am unable to harmonize the views expressed in the majority opinion in this ease with the views expressed by the majority in the case of State ex rel. Roth, Trustee, v. Waterfield, Court Clerk, No. 24650. 167 Okla. 209 , 28 P. (2d) 24 , and in addition to the views expressed in the dissenting opinion of Mr. Justice Osborn, in which I concur, I feel it my duty to discuss certain issues which I do not feel are fully covered in the dissenting opinion delivered by Mr. Justice Osborn.
The first paragraph of the syllabus in this case declares the rule of law to be that:
“The provision of section 54, art. 5, of the Constitution of Oklahoma that the repeal of a statute' shall not affect any proceedings begun by virtue of such repealed statute, applies whether the repeal be expressed or implied, the purpose of the provision being to require an action to pass to judgment under the law applicable thereto at the time of the institution of the action unaffected by any change in the law made after the institution of' the action.”
In the third paragraph of the syllabus the majority opinion holds that:
“In so far as Senate Bill No. 76 of the Fourteenth Legislature of Oklahoma, chapter 16, Session Laws of 1933, purports to change the procedure in a proceeding pend ing at the time of fhe effective date thereof it is ineffective, unconstitutional, and void.”
It is nowhere pointed out in the majority opinion what section or sections of the Code of Civil Procedure is repealed by chapter 16, Session Laws 1933, or wherein said chapter changes a proceeding pending at the
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time of the effective date thereof. The Legislature may provide for changes in procedure which affect only the remedy. Said chapter, by the terms thereof, is only a temporary act to be and remain in full force and effect for a period of two years from and after the date of its passage and approval, at the expiration of which time it shall become inoperative and void. In construing statutes the general rule is that the intent of the Legislature, when ascertained, must govern. McCarter v. State ex rel., 82 Okla. 78 , 196 P. 303 ; Brown v. Miller, 89 Okla. 287 , 215 P. 748 ; Board of Commissioners of Creek County v. Alexander, 58 Okla. 128 , 159 P. 311 ; Sampson v. Clark, 2 Okla. 82 , 35 P. 882 . Any rule of statutory construction which defeats the legislative intent must be abandoned. Cherokee County Publishing Co. v. Cherokee County, 48 Okla. 722 , 151 P. 187 . In the construction of a statute it is the duty of the court to seek to ascertain and carry out the intention of the Legislature in its enactment and to give full effect to such intention. Town of Haskell v. Edmonds, 90 Okla. 44 , 215 P. 629 . The intention of the Legislature is the cardinal consideration in the construction of statutes, and whether a particular provision is mandatory or directory is to be determined from the language used and the purposes in view. City of Enid v. Champlin Refining Co., 112 Okla. 168 , 240 P. 604 . Among other things which may be considered in determining the intent of the lawmakers is the evil which it is designed to remedy: and, therefore, the court properly looks at contemporaneous events, the situation as it exists and as it was pressed upon the attention of the lawmakers. De Hasque v. Atchison, T. & S. E. Ry. Co., 68 Okla. 183 , 173 P. 73 . When the language of the statute is dubious, the court, in construing it, will consider the reason and intent of the law to discover its scope and true meaning. Grayson v. Thompson, 77 Okla. 77 , 186 P. 236 . Repeals by implication are not favored, and in construing separate enactments of the Legislature, that conclusion as to their intent must be reached, if possible, so as to give effect to each provision, and an earlier statute will not be held to be repealed by a later one by implication, unless the conflict between the two is irreconcilable. State ex rel. Power v. Wenner, County Treasurer, 121 Okla. 190 , 248 P. 408 ; State ex rel. v. Taylor, 68 Okla. 38 , 171 P. 452 . The majority opinion in State ex rel. Roth, Trustee, v. Waterfield, County Clerk, supra, held section 1 of chapter 16, supra, to be unconstitutional and void- This is the only section of chapter 16 involved in State ex rel. Osage County Savings & Loan Association v. Worten, District Judge. Certainly the majority opinion does not intend to hold that an unconstitutional section in chapter 16 of the Session Laws of 1933 purports to change the procedure pending at the time of the effective date thereof or amend by implication any section of the Code of Civil Procedure.
Section 54 of article 5 of the Constitution does not apply to a mere change in procedure. In the case of Youst et al. v. Willis and Bradford, 5 Okla. 413 , 49 P. 1014 , this court said:
“This Legislature may provide for changes in the procedure of courts which affect only the remedy, and do not affect the obligation of any contract or the substantial rights of tire parties.”
In the case of Ensley v. State, 4 Okla. Cr. 49 , 109 P. 250 , the Criminal Court of Appeals held that section 54, article 5, does not apply to a change in the law of procedure merely. In the case of Independent Cotton Oil Co. v. Beacham, 31 Okla. 384 , 120 P. 969 , this court in the second paragraph of the syllabus announced the rule of law relative to procedure as follows:
. “No person has a vested right in any particular mode of procedure, and if, before the trial of the cause, a new law of procedure goes into effect, it governs, unless the statute itself provides otherwise.”
In the case of Shelby-Downard Asphalt Co. v. Enyart, 67 Okla. 237 , 170 P. 708 , the first paragraph of the syllabus reads:
“No one has a vested right in any particular mode of procedure for the enforcement or defense of his fights. Hence the general rule that statutes will be construed to be prospective only does not appiy to statutes affecting procedure; but such statutes, unless the contrary intention is clearly expressed or implied, apply jto all actions falling within their terms, whether the right of action existed before or accrued after the enactment.”
The rule declared in the two cases just cited was approved by this court in the case of Coats et al. v. Riley et al., 154 Okla. 291 , 7 P. (2d) 644 .
The ninth paragraph of the syllabus in that case is:
“The general rule that a decision of a court construing a statute is prospective in operation only and does not affect a contract. made pursuant to a former decision of the court, does not apply to.a decision of a court construing a statute affecting procedure or a legal remedy, and a subsequent decision construing such a statute
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applies retroactively as well as prospectively.” .
In the case of Monumental Brewing Co. v. Larrimore (Md.) 72 Atl. 596 , the Court of Appeals of Maryland held that:
“A prayer to withdraw an action from the jury which makes no reference to the pleadings presents only the question -whether the facts that might properly be found by the jury from the evidence constitute a good cause of action, and, if the prayer refers to the ‘proceedings,’ it does not by that term include the ‘pleadings,’ as the ‘proceedings’ consist of successive acts done and steps taken as parts of the suit during its progress, while the ‘pleadings’ consist of the statements of the litigants, in legal form, of facts constituting a cause of action and grounds of defense.”
The court in that ease quotes with approval from Strom v. Montana Cent. Ry. Co., 81 Minn. 346 , 84 N. W. 46 , wherein the Minnesota court held that:
“ ‘Proceedings,’ in its most comprehensive sense, ‘includes every step taken in a civil action except the pleadings’.”
The Maryland court then continues in this language:
“Without adopting all of the views expressed in the cases to which we have referred, we think that the words ‘pleadings’ and ‘proceedings’ are not sufficiently alike in import to be interchangeably employed in instructions to juries. When it is desired in framing prayers to make special reference to the pleadings in the case, it should be done by referring to them as such.”
In the case of People’s Bank of Green-ville v. Aetna Insurance Company, 53 Fed. 361 , the Circuit Court of the United States for the District of South Carolina, considering certain sections of the Code of Civil Procedure of that state relative to pleading, says:
“The question, then, is, Within what time is the defendant required by the laws of the state of South Carolina, or by the rule of the state court, to answer a complaint? The answer to this question can not be" found in decisions of courts sitting in other states. The act of Congress prescribes but one rule, the laws of the state in which the suit is brought, or the rule of the state court. We must find the solution of the question in the laws and the rule of the court of South Carolina. We can find it nowhere else.
“The Code of Procedure of South Carolina (section 104) provides: ‘The only pleading on the part of the defendant is eitfier a demurrer or an answer. It must be served within 20 days after the service of a copy of the complaint.’
“This rule is not inflexible. Section 195 of the same Code provides: ‘The court may likewise, in its discretion, or upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this Code of Procedure, or, by an order, enlarge such time.’
“So, also, section 405: ‘The time within which any proceeding in an action must be had after its commencement, except the time within which an appeal must be taken, may be enlarged upon affidavit showing grounds therefor by a judge of the court.’
“Reading these sections as in pari materia together, it appears that, under the statute law of South Carolina, a defendant is required to answer or demur to the complaint within 20 days after service of a copy thereof upon him, unless the time has been enlarged by the court or a judge thereof.”
Section 395, O. S. 1931, provides that:
“The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses.”
Section 197, O. S. 1931, provides that:
“The only pleadings allowed arej First: The petition by the plaintiff. Second: The answer or demurrer by the defendant. Third. The demurrer or reply by the plaintiff. Fourth. The demurrer by the defendant to the reply of the plaintiff.”
Section 217, O. S. 1931, provides that:
“The answer or demurrer, by the defendant, shall be filed within 20 days after the day on which the summons is returnable: the reply or demurrer shall be filed within 30 days after the day on which the summons was made returnable;. the demurrer to the reply filed within 40 days after the day on which the summons was made returnable.”
Section 218, O. S. 1931, provides that:
“The. court, or any judge thereof in vacation, may, in his discretion, and upon such terms as may be just, allow an answer or reply 'to be made, or other act to be done, after the time limited by this article, or by an order enlarge such time.”
Section 259. O. S. 1931, provides that:
“A motion is an application for an order, addressed to the court, or a judge in vacation. or by any party to a suit or proceeding, or one interested therein, or affected thereby.”
This brings us to a consideration of the intent of the Legislature in enacting chapter 16, Session Laws 1933. It is entitled-■among other things, “An Act regulating procedure relating to the foreclosure of mortgages and other liens upon real estate,” and is temporary in its nature, to remain
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in force only for a period of two years, and in order to meet an economic condition existing in the state of Oklahoma. Prior to its enactment the procedure in force for foreclosing mortgage liens was that the answer or demurrer by the defendant shall be filed within 20 days after the day on which the summons is returnable, or at such time as the court or a judge thereof, in his discretion and upon such terms as may be just, allow an answer or reply to be made or other act to be done after the time limited by article 8, or the court or judge might enlarge such time. Under chapter 16 the Legislature, instead of granting discretion in the trial court to enlárge the time to answer on account of an economic condition, but in order to regulate ihe procedure so that the same might be uniform throughout the state during a period of depression, provided in the first clause in section 1 that the defendant or defendants shall not bo held to answer therein until the expiration of nine months after the date of the service of summons upon the defendant who is the record owner of the real estate at the time of the filing of suit upon which the mortgage or other lien is sought to be foreclosed. As stated by Mr. Justice Osborn in his dissenting opinion, this portion of section 1 did not attempt to change the time for service and return of summons or the time in which the defendant or defendants were required io plead, that is, in the event the defendant or defendants should desire to file a motion to quash the summons or return thereon or to separately paragraph or number or make more definite and certain, or upon other grounds authorized by statute, or desired to demur to the petition of the plaintiff, the time of such defendant or defendants was not extended for such purpose, as section 1 does not provide that the time to demur or otherwise plead, except lo answer, is extended, but clearly states l hat such defendant or defendants shall be held to answer, that is, that they shall not be required to answer, until the expiration of nine months after the date of the service of summons upon the defendant who is the i coord owner of the real estate at the time
of
the filing of the suit upon which the mortgage or other lien is sought to be foreclosed. We think this is a fair interpretation of the legislative intent. The Legislature knew that in certain districts of the .‘-late the district judges, exercising a sound judicial discretion, might upon a showing by the defendant or defendants, .extend the timo within which to answer for a longer period thah a judge in another district might feel inclined to do, and in order to temporarily regulate the procedure throughout the state and make the same uniform as to all parties, they enacted the chapter under consideration. If in doing so they did not act unreasonably or capriciously, we are not authorized as a court to declare Ihe act unconstitutional. In the case of Suring State Bank v. Ernestine Giess et al., 246 N. W. 656 , 85 A. L. R. 1477, the Supreme Court of Wisconsin held that:
‘Where economic depression operates to prevent competitive bidding at a foreclosure sale, the court may, upon application for confirmation of a sale, determine upon a hearing the fair value of the property and give the holder of the mortgage a choice between crediting the value so determined on the foreclosure judgment and a resale.
“The court, in ordering- a sale or resale of property on foreclosure during a period of economic depression operating to preveut competitive bidding, may, in its discretion and after a proper hearing, fix a minimum or upset price at which the premises must be bid in, if 'the sale is to be confirmed.”
If, as held by the Supreme Court of Wisconsin, a court of equity in exercising a sound judicial discretion may, on account of an economic depression, upon application for confirmation of a sale, determine upon a hearing the fair value of (lie property and give the holder of the mortgage a choice between crediting the value so determined on the foreclosure judgment and a resale, then a court of equity, on account of an economic depression, might enlarge the time to answer, or if the Legislature felt that as a result of an economic situation such as baa existed in Oklahoma for more than two years the granting of ’such time would promote the common good, then and under such circumstances, it had the right to enact such legislation in the exercise of the reasonable police power of the state. A court will never declare an act of the Legislature, passed with all the formality and solemnity required to give it the force of law, unconstitutional and void unless the nullity and invalidity of the act are placed, in its judgment, beyond a reasonable doubt. City of Pond Creek v. Haskell, 21 Okla. 711 , 97 P. 338 . In the case of State ex rel. Roth, Trustee, v. Waterfield. supra, the majority opinion in that case sustains all of chapter 16, Session Laws 1933, except section 1. as constitutional upon the ground that there exists in the state of Oklahoma an emergency calling for a reasonable exercise of the inherent police power of the state, and that the Legislature acted within the proper exercise of its powers in enact
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ing all of said act except section 1. Under tlie holding of the court, section 217, O. S. 1931, providing that the answer or demurrer shall be filed within 20 days after the day on which the summons is returnable, and section 218, O. S. 1931, authorizing the court or any judge thereof in vacation, in his discretion and upon such terms as may be just, to allow an answer or reply to be made or other act to be done after the time limited in section 217, supra, or by an order to enlarge such time, are still in full force and effect and not repealed by implication.
Section 54 of article 5 of our Constitution provides that, “The repeal pf a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.” It does not prohibit a change in “the procedure” in a pending- proceeding, and this court has many times so held, and when this court inserts the words “the procedure” preceding the words “in a pending proceeding” in the third paragraph of the syllabus, it goes beyond the clear meaning and intent of the Constitution. Under the law as it existed at the time the action involved was commenced in the district court of Osage county, the district court or judge thereof was authorized to enlarge the time of the defendants to answer, and the act under consideration does not materially change any step in the proceedings.
I am of the opinion the only thing the act under consideration, except the 3rd paragraph of section 1, attempts to do is to put in foree temporarily the inherent police power of the state, and such being clearly the legislative intent, we should so hold.
I am authorized to state that Mr. Justice- McNEILL and Mr! Justice OSBORN concur in the views expressed herein.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3831004. Public record. Not legal advice.