Bullard v. Holm An, No. 11949.

• Court: Supreme Court of Georgia
• Writing for the Court: RUSSELL, Chief Justice
• Citation: 184 Ga. 788,193 S.E. 586
• Parties: BULLARD. v. HOLM AN et al.
• Docket Number: No. 11949.
• Decision Date: 16 October 1937

184 Ga. 788

193 S.E. 586

BULLARD.
v.
HOLM AN et al.

No. 11949.

Supreme Court of Georgia.

Oct. 16, 1937.

[193 S.E. 586]Syllabus by the Court.

1. "Where an instrument containing the words, 'I promise to pay, ' is signed by two or more persons, they are deemed to be jointly and severally liable thereon." (Code 1933, § 14-217(7).

2. The Constitution of this state naturally expressly prohibits the passage of retroactive statutes (Const. art. 1, § 3, par. 2, Code 1933, § 2-302). They are indeed prohibited by the first principles of justice; but a statute which may be retrospective in its operation is not necessarily prohibited by the Constitution or by any principle of justice. Only those laws are inhibited which injuriously affect vested rights. The same rule which forbids interference with vested rights likewise prevents the disturbance of vested defenses. There is no distinction between a vested right of action and a vested right of defense. However, no one has a vested right to a defense based on mere informalities, especially when such informalities consist of matters which originally could have been dispensed with by the Legislature; though the Legislature has no power, by a subsequent curative statute, to remedy a jurisdictional defect, or one which obviously goes to the substance of a vested right. In other words, "A party has no vested right in a defense based upon a mere informality not affecting his substantial equities, " and "there is no such thing as a vested right to do wrong." Very frequently the right which a curative or repealing act takes away is the right of a party to avoid his contract; a naked legal right which it is usually unjust to insist upon, and which no constitutional provision was designed to protect.

3. The court did not err in overruling the demurrers to the petition, or in sustaining the constitutionality of section 5 of the act approved March 29, 1937 (Ga.L.1937, pp. 804, 805), and in rendering judgment in favor of the plaintiff on the plea in bar filed by the defendant.

Error from Superior Court, Mitchell County; B. C. Gardner, Judge.

[193 S.E. 587]

Suit by J. C, W. C, Grady, and J. L. Holman comprising the partnership of J. C. & W. C. Holman Mule Company against W. W. Bullard, wherein defendant filed demurrers. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Frank S. Twitty, of Camilla, for plaintiff in error.

S. C. Walden, Jr., and A. N. Durden, both of Albany, for defendants in error.

Little, Powell, Reid & Goldstein, of Atlanta, for parties at interest, not parties to record.

RUSSELL, Chief Justice.

J. C, W. C, Grady, and J. L. Holman, a partnership trading under the name of J. C. & W. C. Holman Mule Company, filed suit in Mitchell superior court against W. W. Bullard on a promissory note and sales agreement executed by W. W. Bullard and H. T. Bullard. The defendant tiled a plea that the plaintiff was a partnership, but that the trade-name thereof had never been registered with the clerk of the superior court of Mitchell county, and that said trade-name had not been registered with the clerk of the superior court of Dougherty county, where the plaintiff's principal office and place of business was located, until nine days after the filing of the suit; and that because of such failure to register its trade-name the plaintiff could not maintain this action. He demurred to the petition generally as setting forth no cause of action, and specially to a specified paragraph on the ground that one of the signers of the note, H. T. Bullard, was a necessary party to said suit but was not made a defendant. He filed also an answer setting up accord and satisfaction. Thereafter by amendment the defendant attacked section 5 of the act of the General Assembly approved March 29, 1937 (Laws 1937, p. 805), as follows: "That section five of the trade-name act, approved March 29, 1937, [which] provides: '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 such failure to register. But the party who has failed to register his trade or partnership name at the time suit is filed, as required by this Act, shall be cast with court costs, ' is retrospective and violates paragraph two of section three of article one of the constitution of this State, * * * which provides that no retroactive law shall be passed." On the issues made by the demurrer and plea in bar the court rendered the following judgment: "The plea in bar in this case was submitted to the court to pass upon the law and facts and render final judgment, subject to the right of each party...