78 Ind. App. 639 | Ind. Ct. App. | 1922
— This is an action on a promissory note, executed by appellant and her husband to appellee’s assignor. After issues were joined on the complaint, and appellant’s answer of coverture and suretyship, the cause was submitted to the court for trial. A special finding of facts, having been made, pursuant to request, a conclusion of law was stated thereon in favor of appellee, on which judgment was rendered against appellant and her husband. This appeal followed on an assignment of error based on the action of the court in stating its conclusion of law. Appellee has filed a motion to dismiss the appeal on the ground that appellant made no motion for a new trial in the court below. This fact, however, is immaterial since appellant bases her appeal on the action of the court in stating its conclusion of law. Appellee’s motion to dismiss is therefore overruled.
Appellant, in support of her contention that the court erred in stating its conclusion of law in favor of appellee, cites the following facts found by the court, viz.: That the note in suit was executed on February 15, 1911; that at the time of its execution she was, and still is, a married woman, the wife of her codefendant in this action, and that she executed the same as surety for her said husband. Based on these facts she asserts that she is not liable on said note by reason of §7855 Burns 1914, §5119 R. S. 1881, which reads as follows: “A married woman shall not enter
It may be stated, as a general rule, that, in the ab- ' sence of a legislative enactment to the contrary, the repeal of a statute without a saving clause, where no vested right is impaired, completely obliterates it, and renders the same as ineffective as if it had never existed. 25 R. C. L. 932; 36 Cyc 1224; 26 Am. & Eng. Ency. Law (2d ed.) 745; Vance v. Rankin (1902), 194 Ill. 625, 62 N. E. 807, 88 Am. St. 173; Ex parte McCardle (1869), 7 Wall. 506, 19 L. Ed. 264; Brown v. Western State Hospital (1909), 110 Va. 321, 66 S. E. 49; Taylor v. Strayer (1906), 167 Ind. 23, 78 N. E. 236, 119 Am. St. 469.
The repealing statute under consideration has no saving clause, and we find no statute in this state which would prevent an application of the general rule. Therefore, we are only required to determine whether its application in the instant case would impair any vested right of appellant. It is clear that the repeal of said §7855 Burns 1914, supra, did not impair any right conferred by the contract in suit, but, if held to be applicable thereto, merely enables appellee to enforce the contract, which we must presume the parties intended to make. Burget v. Merritt (1900), 155 Ind. 143, 57 N. E. 714; Ewell v. Daggs (1883), 108 U. S. 143, 2 Sup. Ct. 408, 27 L. Ed. 682; Mutual, etc., Co. v. Winne (1897), 20 Mont. 20, 49 Pac. 446; Wistar v. Foster (1891), 46 Minn. 484, 49 N. W. 247, 24 Am. St. 241. As said in the case of Burget v. Merritt, su
That an inchoate right which has not been exercised may be terminated by a repeal of the statute conferring it, and thereby take away a defense to an action based on a prior contract, is generally recognized. 25 R. C. L. 937; 36 Cye 1226; 26 Am. & Eng. Ency. of Law (2d ed.) 747; 1 Sutherland, Statutory Construction (2d ed.) 545; Moor v. Seaton (1869), 31 Ind. 11; Burget v. Merritt, supra. Such rights, while remaining, inchoate, may be modified by subsequent enactments, so as to limit their effectiveness as a defense to existing contracts. Berry v. Clary (1885), 77 Me. 482, 1 Atl. 360. In the case of Burget v. Merritt, supra, the court quoted the following statement with approval: “A party has no vested right in a rule of law which would give him an inequitable advantage over another; and such rule may therefore be repealed and the advantage thereby taken away. To illustrate this remark: If by law a conveyance should be declared invalid if it wanted the formality of a seal; or a note void if usurious interest was promised by it; or if in any other case, on grounds of public policy, a party should be permitted to avoid his contract entered into intelligently and without fraud, there would be no sound reason for permitting him to claim the protection of the Constitution, if afterwards, on a different view of public policy, the legislature should change the rule, and give effect to his conveyance, note, or other contract, exactly according to the original
In the case of Vance v. Rankin, supra, the court quoted the following statement with approval: “The doctrine is, that inchoate rights, derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute, and unless those rights have become so far perfected as to stand independent of the statute, * * * that is to say, executed. * * * The effect of a repealing statute is to obliterate the prior law as completely from the records as if it had never passed, and it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law.”
In the case of Ewell v. Daggs, supra, the court, after citing a number of decisions to the effect that the repeal of statutes with reference to usury, without a saving clause, operated retrospectively, so as to cut off the defense for the future, even in actions upon contracts previously made, said: “And these decisions rest upon solid ground. Independent of the nature of the forfeiture as a penalty, which is taken away by a repeal of the act, the more general and deeper principle upon which they are to be supported is, that the right of a defendant to avoid his contract is given to him by statute, for purposes of its own, and not because it affects the merits of his obligation; and that, whatever the statute gives, under such circumstances, as long as it remains in fieri, and not realized, by having passed into a completed transaction, may, by a subsequent statute be taken away. It is a privilege that belongs to the remedy, and forms no element in the rights that inhere in the contract. The benefit which he has received as the consideration of the contract, which, contrary to law,
Married women cannot rightfully complain because they can no longer avoid their contracts of suretyship, executed prior to the repeal of said §7855 Burns 1914,