Bowers v. Keller, 12129.

• Decision Date: 16 February 1938
• Docket Number: No. 12129.,12129.
• Citation: 195 S.E. 447,185 Ga. 435
• Parties: BOWERS. v. KELLER.
• Court: Georgia Supreme Court

185 Ga. 435

195 S.E. 447

BOWERS.

v.KELLER.

No. 12129.

Supreme Court of Georgia.

Feb. 16, 1938.

Syllabus by the Court.

Where a suit is filed on a contract entered into between the plaintiff and the defendant in connection with and while the plaintiff was operating a business under an assumed or fictitious name, without having registered that name as required by the Code, §§ 106-301, 106-302, 106-303, 106-304, and the defendant files a plea setting up these facts as a defense to the suit, and the judge sustains such defense and enters a judgment of nonsuit, and thereafter the plaintiff brings the case to the Court of Appeals, properly presenting the question whether the court erred in sustaining such defense, and it appears that since the judgment of the trial court, and while the case was in process of being brought to the Court of Appeals, the Legislature, by the act of 1937, Ga.L.1937, pp. 804-806, repealed sections 106-301, 106-302, 106-303, 106-304, and expressly provided by section 5 of said act that, "The effect hereof shall be that no contract or undertaking entered into by any person, firm, or corporation, whether heretofore or hereafter entered into, shall be invalidated or declared illegal on the ground that the same was entered into in a trade or partnership name not filed or registered in accordance with the laws in force at the time such contract or undertaking was entered into; but all such contracts and undertakings are expressly validated as against any such objection; and no suit or action heretofore or hereafter instituted by any such person, firm, partnership, or corporation, whether sounding in contract or tort, shall be defeated because of any such failure to register, " the Court of Appeals, under the act of 1937, above quoted, should apply the provisions of that act, and reverse the judgment, not because the judge erred at the time of its rendition, but because it has subsequently become erroneous by operation of this statute.

Certified Question from Court of Appeals.

Suit on a contract by P. L. Bowers, agent, against W. E. Keller. To review a judgment of nonsuit, plaintiff brought error to the Court of Appeals, and that court certified a question to the Supreme Court.

Question answered.

The Court of Appeals certified the following question: "Where a suit is filed on a contract entered into between the plaintiff and the defendant in connection with and while the plaintiff was operating a business under an assumed or fictitious name, without having registered that name as required by the Code, §§ 106-301, 106-302, 106-303, 106-304 (Acts 1929, p. 233), and the defendant files a plea setting up these facts as a defense to the suit under the decisions of this court and of the Supreme Court in Dunn & McCarthy, Inc. v. Pinkston, 179 Ga. 31, 175 S.E. 4; Prater v. Larabee Flour Mills Co., 180 Ga. 581, 180 S.E. 235; Mobley v. Bailey, 52 Ga. App. 578, 184 S.E. 417; Constitution Publishing Co. v. Lyon, 52 Ga.App. 434, 183 S.E. 653; Gower v. Ozmer, 55 Ga.App. 81, 189 S.E. 540, and the judge sustains such defense and enters a judgment of nonsuit, and thereafter the plaintiff brings the case to this court, properly presenting the question whether the court erred in sustaining such defense, and it now appears that since the judgment of the trial court, and while the case was in process of being brought to this court, the Legislature, by the act of 1937 (Ga.L.1937, p. 804, 806), repealed §§ 106-301, 106-302, 106-303, 106-304, and expressly provided by section 5 of said act that 'The effect hereof shall be that no contract or undertaking entered into by any person, firm, or corporation whether heretofore or hereafter entered into, shall be invalidated or declared illegal on the ground that the same was entered into in a trade or partnership name not filed or registered in accordance with the laws in force at the time such contract or undertaking was entered into; but all such contracts and undertakings are expressly validated as against such objection; and no suit or action heretofore or hereafter instituted by any such person, firm, partnership, or corporation, whether sounding in contract or tort, shall be defeated because of any such failure to register, ' should this court on the present writ of error apply the law as it existed when the judgment of the lower court was rendered, or should it, under the act of 1937, quoted above, apply the provisions of that act, and hold that the court erred in sustaining such defense and in thereafter entering a judgment of nonsuit? See C.J. S., Appeal and Error, 1310, § 1841, and cit.; 3 American Jurisprudence, 668, § 1157, and cit."

Claud R. Caldwell and J. Paul Stephens, both of Augusta, for plaintiff in error.

A. R. Williamson, of Augusta, for defendant in error.

RUSSELL, Chief Justice.

In Metzger Motor Co. v. Parrott, 233 U.S. 36, 34 S.Ct. 575, 58 L.Ed. 837, it was held: "Where, since the judgment of the United States District Court was obtained the highest court of the State has declared the state statute on which the case was brought to be unconstitutional under the state constitution, and there is no right to recover in the absence of statute, it is the obvious duty of this court to reverse the...