The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1862-04-03
$3.50 PER ANNUM IN ADVANCE.
NO. 43.

ton OF judicial tribunals, or their modes of in
vestigatiDg facts, or their we'll established
: rules of practice. Of course there are man,
things in the proceedings of courts of iustic,
which are mere matters of form, not in AM
affecting any substantial rights, nor touehins
the real merits of the controversy. Bat WI
can hardly say that right secured to suite
by the constitution OF an immaterial matter
to be regarded or not as the courts may think
proper. And certainly if an order affecting 8
ease where it was not authorized by law to be
f REFEREED or discharging an order for the exam
inaton of party before trial. or refusing al
attachment for witness who has been duly
subpoenaed and refuses to attend, can, with
any propriety Of language, be said to be orders
I which involve the merits OF an action, Their
with much stronger reason can il be said that
an order, which attempts to deprive q party
of his constitutional right to have his witnesses
examined in open court, is one involving the
merits of the action. Such an order comes
within the most rigid and technical construc-
tion which is admissible of this provision of the
statute. The view of the applicability of the
order is further Strengthened by the consider
alton that party must be to tie expense of at.
tending before the person appointed to take
the testimony must pay witness fees; and fur
! ther must pay all the charges of the person ap-
pointed to take TIE testimony, unless they are
waived, before the evidence is reported to the
court for trial of the cause. Section II, chap
ter SO, Laws of 1861.
But, assuming the order to be appealable,
then it is insisted that the appellant has sus-
tanned no injury from it; that 1t interferss with
none of his rights; and therefore that his OBJ
lection to it is premature. The case of Noonan
VS.. Orion, 2, Wis. so, is relied on in support
| of this position. The cases are clearly distn-
! guishable from each other. In NoonRn vs.
Orion, by the terms of the ORDER either party
might take his testimony before the commits
sioner, upon notice to the adverse party, at
any time within three months from its date
| The order has permission, not compulsory, in
! its character Here the order is peremptery
and absolute. Itrequires all the testimony to
be taken by the commissioner or examiner,
which either party may desire to use on the
trial. 1t connot be said that the order is mere
JrutNm futnneR, which a party may disregard,
and proceed with his suit; for by the fourteenth
section of the act under which the order was
made, it is provided that no action shall be
tried until all the testimony shall have been ts-
ken and reported to the court. For these rea-
SONS it is obvious that the decision of NoOnan
VS., Orion does not apply to this case.
Our objections to this order however, rest
upon higher and broader grounds than the
mere language of the order. We are of the
opinion that chapter So, Laws of 1861, is in
direct conflict with the constitution.
l have already indicated one objection TO
this law viz: that it requires The testimony In
these mortgage foreclosure cases to be taken
out Of court while by the constitution party
has the right to have the witness examined in
court, subject to the occasional exceptions
provided for in cases at law. In Brown vs..
Runals we have expressed our nviews upon
the constitutional provision requiring testimo-
ny III equity cases to be taken IN like manner
as in actions at law, and nothing further
need be said here upon that subject, The
language OF the constitution is clear positive
and explicit, and cannot be disreg arded. An
other objection to this law is. that il lmpaiTs
the obligation ofconracts within the meaning
and restriction of the constitution Of this State
/ do not propose to enter upon discussion OF
the question as to how far the legislature may
go in changing the remedy upon past contracts
without infringing their obligation. That
whole field of discussion has been very fully
gone over in the opinions of the Chief Justice
and Mr. Justice Paine in the recent case of
Van Bumbash VS.. Babe, 9 Wis $50, and l am
content to rest the discussion there. The con-
cIusion at. which the chief Justice arrived III
that case, and in which | concurred, was THAT
IT is within the power of the Legislature to re-
peal, change or modify the laws governing the
proceedings Of c0ur is of justice, as well as to
past as future contracts, so that the parties
have a substantial remedy, according TO the
course OF justice as it existed the time Che con
tract was nade" Applying his rule to the
contract under consideration, its lnvallGlty be
comes apparent. For without entering into a
minute analysis OF the law, it is plain to be
seen that it does not leave to the holders of
this class Of sec urities; substantial remedy
according to the course of justice it existed
at the time these contracts were made On
the contrary. it is difficult to perceive how any
candid person, capable of reading the law, and
comprehending lis provisions, can fail to see
upon its very face an intention TO Clog hamper
and embarass the proceedings to enforce the
remedy as to destroy it entirely, and thus i'm
pair the contract so far as it is in the power of
the Legislature to do 1t. Without stopping to |
draw the line between the remedies which may |
and those which may not be taken away, prob |
ably no one would contend, in view OF the pro- |
visions in our bill of rights, which declares
that 'every person is entitled TO certain rem |
edy in The laws, for all injuries or wrongs,
which he may receive in his person, property
or character that an act, taking away all
remedies for enforcing contracts would be
valid enactment. Equally Objectionable is
law which burdens the remedy with such res
trictions as to make it useless or not worth
pursuing. That such is the character oil THIS
law, is evident on the least examination. All
of its provisions declare an intention on the
Giles and de ay- in the way OF force osing this
class of mortgages to leave the creditor
without any substantial remedy. We further
more think other very serious objections exist
to this law, but we donot deem it necessary to
name them Those which we have already re-
ferred are sufficient to invaIidate the law and |
render it imperative and void.
That part of the law relating TO the giving
security for costs, NIGH be proper enough, If
Il Iy ar he
unconstitutional provisions. All the lmpor-
tant provisions Of the law we are constrained
to declare invalid and as section 10 was clear
" intended to come IN aid Of these provisions
and to stand or fail with them, we must ike
wise hold it imperative and void,
Itfollows from heFe views that the order Of
the Circuit Court must be reversed and the
and the cause remanded for further proceed
iDgs according to law.
BY JUSTICE PAINE.
concur entirely in the decision ofthe court
and in the views expressed by Justice Cole,
with the exception that do not place the in
validity of the law upon the ground that it i'm
pairs the obligation Of the contract. l have
no doubt that within the rule upon that ques-
ton, which has been established by the Su-
preme Cuurt Of the United States, and by the
current of state authority, this law would be
held invalid upon that account But IN Won
Baumhach VS.. Babe. Wis, $50, expressed
nv views upon that, and held that the remedy
might even be entirely destro, ed by the state
without impairing the obligation OF the CON
tract.
But section 9 in the bill of rights of the CON
stitution provides that every person is emit
fled to a certain remedy in the laws for all in
nries or wrongs which he may receive in his
person, property or character" &c Inc ei-
f.ct of this provision was considered by the
chief Justice in his opinion in she case OF
PhrIp, W.. Rooney =, al ~ Wis, sos e seq.
AID although did II as M to the appHc'-
non mhich Inc cave Il IN thai ease Yet | ~