Bullard v. Holman

• Decision Date: 16 October 1937
• Docket Number: 11949.
• Citation: 193 S.E. 586,184 Ga. 788
• Parties: BULLARD v. HOLMAN et al.
• Court: Georgia Supreme Court

193 S.E. 586

184 Ga. 788

BULLARD v. HOLMAN et al.

No. 11949.

Supreme Court of Georgia

October 16, 1937

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

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.

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 originaly 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 designated 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.

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 filed 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 fact and render final judgment, subject to the right of each party to appeal from said judgment by bill of exceptions. The demurrers interposed by the defendant, both general and special, are hereby overruled. After agreed statement of facts submitted, and after argument of counsel for both sides, it is ordered and adjudged by the court that judgment be and the same is hereby rendered in favor of the plaintiff and against the defendant on the plea in bar. The court holds that the act of the General Assembly, approved the 29th day of March, 1937, is remedial in its nature, valid, and does not contravene any of the provisions of the constitution of the State of Georgia. The issues made by the petition and defense as to the merits of the cause are not decided. This judgment goes only to the demurrers and plea in bar.' The defendant excepted to this judgment, and in the brief of counsel only two questions are insisted on: First, that the note sued on in this case was executed jointly by H. T. Bullard and W. W. Bullard as joint makers, and that the failure of the plaintiff to join H. T. Bullard as a party defendant, without showing that he is dead or could not be found, is fatal to the case, and the petition should have been dismissed on demurrer; second, that section 5 of the act approved March 29, 1937, is unconstitutional as applied to a note which (quoting from the brief) 'became barred under the act of 1929 (Code, § 106-301 et seq.), and before the passage of the act of 1937, approved March 29th.'

1. This was a plain suit on a note asking a common-law judgment for a stated amount. It appears from the record that the defendant presented various defenses, and more than once amplified them by amendment; but since only two questions are insisted upon in the brief of counsel any other contentions will be treated as abandoned. The first point insisted upon by plaintiff is that the note sued on was executed by H. T. Bullard and W. W. Bullard as joint makers, and that the failure of the plaintiff to join H. T. Bullard as a party defendant, without showing that he is dead or cannot be found, is fatal to the case, and that for this reason the petition should have been dismissed upon demurrer. This position is untenable, in view of the seventh subsection of section 14-217 of the Code, which declares: '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.' Counsel cites several cases to support a contrary position, but examination discloses that in each of these cases the word 'we' or its equivalent, instead of the word 'I,' was employed, and therefore the distinction is very apparent.

2. The second point insisted upon in behalf of the plaintiff in error is that section 5 of the act approved March 29, 1937 (Ga.L.1937, pp. 804, 805), is unconstitutional as applied to a note which 'became barred under the act of 1929 (Code § 106-301 et seq.), and before the passage of the act of 1937, approved March 29th.' The question of the constitutionality of the act of 1937, supra, is naturally one of great importance, for it is of a public nature, and not related merely to the rights of the litigants in a partcular case. The act of 1929, which required persons carrying on a business in a trade-name to register their real name with the clerk of the superior court, and providing that it should be unlawful to conduct business under such assumed on trade-name without so registering, was an exercise of the police power of the state. Consequently it was enacted...