Appeal from Court of Civil Appeals of Second Supreme Judicial District.
BISHOP, J.
The Court of Civil Appeals of the Second Supreme Judicial District certifies the question "whether or not the trial court erred in overruling the plea in abatement presented by appellant" in this case under the following statement:
"On September 29, 1922, G. M. Rhoades, C. E. Christie, and C. Groves, as members of the copartnership doing business under the name of Rhoades Drilling Company, instituted this suit against the Paragon Oil Syndicate (a commonlaw company), John F. Nein, trustee, E. H. Nein, trustee, John F. Nein, and E. H. Nein, R. M. Roddie, E. A. Gatlin, C. E. Snively, and F. W. Whitney, as individuals, to recover the sum of $2,559.53, alleged to be due the plaintiffs for drilling two oil wells. It was alleged that the wells were drilled under a contract with the defendants, which was entered into during the year 1922, and that they were drilled on two surveys located in Young county.
"It was further alleged that the plaintiffs were doing business in Young county under the firm name of Rhoades Drilling Company, and that the amount sued for became due July 1, 1922. When the suit was filed, an attachment was sued out and levied upon certain property alleged to belong to the defendants for jurisdictional purposes, upon allegations that all the defendants were nonresidents of the state.
"The defendants filed a plea in abatement, in which they prayed that the suit be abated and dismissed because the business transacted by plaintiffs, which was made the basis of their suit, was in violation of chapter 73, Acts of the Thirty-Seventh Legislature (Acts of 1921), in that said business was transacted without first filing for record in the office of the county clerk of Young county a certificate setting forth the name under which said business was being conducted, together with the names and postoffice addresses of the persons conducting the same, as required by the provisions of that act, the said name of Rhoades Drilling Company being an assumed name and not disclosing the names of the persons who were transacting the business thereunder.
"Upon a hearing of the plea in abatement, counsel entered into the following agreement of facts pertaining thereto:
"`It is agreed that no assumed name, affidavit or certificate showing the partnership of the Rhoades Drilling Company was filed in the county clerk's office of Young county, Tex., until May 3d, 1923. It is further agreed that the Rhoades Drilling Company have been operating in Young county, Tex., for a period of three years, and that they were so operating at the time of the alleged contract in this suit. It is further agreed that the county deed records of Young county, Tex., and mechanics' lien records and chattel mortgage records show that the Rhoades Drilling Company was a partnership composed of George M. Rhoades, C. E. Christie, and C. Groves, which individuals composed the firm of Rhoades Drilling Company.'
"The plea in abatement was thereupon overruled by the court, and upon the trial of the cause upon its merits judgment was rendered for the amount sued for in plaintiff's favor against all the defendants and the American Surety Company of New York, surety, on the replevin bond filed by the defendants, and under which the property attached was replevied by the defendants. All the defendants in that judgment have appealed, and that appeal is now pending in this court and undisposed of.
"The first error assigned is to the action of the trial court in overruling the plea in abatement, which, as noted, is based on the statute
referred to above. That statute seems to be substantially the same as a Kentucky statute with the exception that the latter provides for a jail sentence in addition to a fine for a violation thereof, while in our statute the penalty is a fine only. The Kentucky statute appears in Hunter v. Big Four Auto Co. 173 S. W. 120; Warren Oil & Gas Co. v. Gardner 212 S. W. 456; Acme Drilling Co. v. Gorman Oil Syndicate 249 S. W. 1003. All of those decisions were by the Court of Appeals of Kentucky. All of the Kentucky cases just noted, as well as others cited in those opinions, are to the effect that a failure to comply with the Kentucky statute renders the contract unenforceable in the courts by the persons who are doing business in violation of the statute."
The provisions of chapter 73, Acts of the Thirty-Seventh Legislature material to the discussion of this question are as follows:
"Section 1. No person or persons shall hereafter carry on or conduct or transact business in this State under any assumed name or under any designation, name, style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact or intend to conduct or transact such business, a certificate setting forth the name under which such business is or is to be conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the postoffice address or the addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting or intending to conduct said business in the manner now provided for acknowledgment of conveyance of real estate.
"Sec. 2. Persons now owning or conducting such business under an assumed name or under any such designation referred to in section one, shall file such certificate as hereinbefore prescribed, within thirty days after this Act shall take effect, and persons hereinafter owning, conducting or transacting business aforesaid shall before commencing said business file such certificate in the manner hereinbefore prescribed.
"Sec. 3. Whenever there is a change in ownership of any business operated under any such assumed name as set out in section 1 hereof, the person or persons withdrawing from said business or disposing of their interest therein, shall file in the office of the clerk of the county or counties in which such business is being conducted and has a place or places of business, a certificate setting forth the fact of such withdrawal from or disposition of interest in such business; and until he has filed such certificate he shall remain liable for all debts incurred in the operation of said business, which certificate shall be executed and duly acknowledged by the person or persons so withdrawing from or selling their interest in said business in the manner now provided for acknowledgment of conveyance of real estate."
"Sec. 6. Any person or persons, owning, carrying on or conducting or transacting business aforesaid, who shall fail to comply with the provisions of this act, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars, and each day any person or persons shall violate any provisions of this act shall be deemed a separate offense.
"Sec. 7. The fact that there is now no law providing for the registration of the names of persons doing business under assumed or fictitious names, and that the absence of such law impairs the stability of credits in the State, creates an emergency and imperative public necessity requiring that the Constitutional Rule that bills shall be read upon the three several days shall be suspended, and it is hereby suspended, and this Act shall take effect from and after its passage, and it is so enacted."
Where the statute prohibits the sale of property, any contract of sale made in violation thereof is void, and for this reason neither party to the contract can enforce its terms. The contract is unenforceable because it is not binding on the parties thereto, and not because such parties are prevented from instituting suits in the courts to enforce their rights. It is because they have no rights. The sale of intoxicating liquors, except for certain specified purposes, and made in accordance with certain specified regulations, is prohibited by law....
