Bain v. Boykin
| Decision Date | 07 December 1942 |
| Citation | 23 S.E.2d 127,180 Va. 259 |
| Court | Virginia Supreme Court |
| Parties | BAIN et al. v. BOYKIN. |
Error to Circuit Court, Sussex County; Robert W. Arnold, Judge.
Action by F. B. Bain and R. F. Bain, trading as L. F. Bain & Son, against Edgar Boykin to recover amount evidenced by a bond dated July 8, 1930. A judgment was entered dismissing the action, and the plaintiffs bring error.
Reversed and remanded.
Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and EGGLESTON, JJ.
Carlton E. Holladay, of Wakefield, and T. N. Crymes, of Surry, for plaintiffs in error.
W. Stanley Burt, of Claremont, and Frank P. Pulley, Jr., of Waverly, for defendant in error.
Plaintiffs in error, F. B. and R. F. Bain, trading as L. F. Bain and Son, brought an action at law, by warrant, before the trial justice of Sussex county, to recover of the defendant, Edgar Boykin, the gross sum of $305.64, evidenced by a bond dated the 8th day of July, 1930. The trial justice rendered a judgment in favor of the plaintiffs, whereupon the defendant appealed to the circuit court.
Upon the call of the case in the circuit court, the defendant filed a plea alleging that plaintiffs were barred from a recovery on the bond because of their failure to comply with the provisions of the Act of the General Assembly of 1936, c. 326, p. 531--Michie's Code of Virginia, section 4722(1)--in that they had not, prior to the bringing of the action, registered, as required by the statute, the assumed or fictitious name under which they were doing business at the time the alleged action on the bond accrued.
The facts upon which defendant relied to sustain his contention are as follows:
The original partnership of L. F. Bain and Son, composed of L. F. Bain and P. D. Bain, came into existence more than sixty years before the bringing of this action (Jesse Hargrave, the clerk of the circuit court, testified that both L. F. Bain and P. D. Bain departed this life many years ago); that the present partnership was composed of F. B. Bain and R. F. Bain; and that the plaintiffs did not file the certificate required by section 4722(1) of Michie's Code until after the bringing of the present action.
The pertinent provision of section 4722 (1) of Michie's Code reads thus:
"No person nor corporation shall conduct or transact business in this State under any assumed or fictitious name unless such person or persons or corporation shall sign and acknowledge a certificate setting forth the name under which such business is to be conducted or transacted, and the names of each and every person or corporation owning the same, with their respective post office and residence addresses, and where the corporation is a foreign corporation the date of the certificate of authority to do business in Virginia issued to it by the State Corporation Commission, and file the same in the office of the clerk of the court in which deeds are recorded in the county or corporation wherein the business is to be conducted." Section 1.
"Any person violating any of the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined not exceeding one thousand dollars, or imprisonment not more than one year, or both." Section 3.
The trial court, being of opinion that the provision of the statute is mandatory, sustained the plea of the defendant and dismissed the action at the costs of the plaintiff. To this action of the trial court a writ of error was awarded.
At the April, 1942, session of this court, the case was argued and submitted. The assignment of error relied upon in argument was the action of the trial court insustaining defendant's plea and dismissing plaintiffs' action. Upon a consideration of the case in conference, a majority of this court was of opinion that the assignment of error was without merit, for the reason that the case was controlled by our decision in Colbert v. Ashland Construction Company, 176 Va. 500, 11 S.E.2d 612, 616.
In that case, Mr. Justice Holt, dealing at length with the statute, said: "When the law prohibits a thing, it is unlawful to do it, and the courts should not lend their aid to the enforcement of prohibited contracts."
Prior to the convening of the appellate court for the June, 1942, session, our attention was called to the fact that the Act of 1936 (Michie's Code, section 4722(1), was amended by the 1942 session of the General Assembly (Acts 1942, c. 286, p. 408), which materially affected a decision of the case, and thereupon, a reargument of the case was directed at the October, 1942, session of the court.
The amendment to the Act of 1936 appearing in chapter 286 of the Acts of 1942 leaves the entire act intact, with the exception of section 3 thereof. The amendment is as follows:
In the present state of the record the sole question for our determination is the force and effect of the amendment upon the case at bar. The primary question for solution is whether the law applicable at the time of the rendition of the judgment, or the law in effect at the time of the decision of the appellate court, applies. Upon this question there is a diversity of opinion.
In 5 Corpus Juris Secundum, Appeal and Error, § 1841, this is said:
"While the courts are agreed that an appellate court will not by its decision allow a change in the law during the pendency of an appeal to affect vested rights, that it will give effect, according to its terms, to a statute enacted while the appeal was pending and expressly intended to apply, or not to apply retroactively,...
To continue reading
Request your trial
-
School Bd. of City of Norfolk v. U.S. Gypsum Co.
...contract or the commission of any tort. Our previous holdings indicate that we should not adopt such a rationale. In Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942), we deprived a defendant of his defense that the plaintiff had failed to register under the fictitious name statute in effec......
-
City Of Norfolk v. Stephenson
...take an appeal." This decision was followed in Farris v. Norfolk & Western Ry. Co., 141 Va. 622, 126 S.E. 673. The facts in Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127, were that F. B. and R. F. Bain, trading as L. F. Bain and Son, instituted an action on a bond. The trial court, following t......
-
Vaughn v. Nadel
...of existing laws, does not constitute a vested right. Brown v. City of Topeka, 146 Kan. at 981, 74 P.2d 142. See also Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942). A vested right is a right so fixed that it is not dependent on any future act, contingency or decision to make it more sec......
-
Nolte v. MT Tech. Enters., LLC
...at 751, 51 S.E.2d at 230 (emphasis added). In reaching this conclusion in Phlegar, we relied in part on our decision in Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942), where we interpreted former Code § 4722(1)–3 and held a certificate “filed after the bringing of [an] action and prior t......