Central of Georgia Railway Co. v. Jones ( 1922 )

Jenkins, P. J.,

concurring specially. In concurring with the rulings made in this case, I desire to do so without any reference to the correctness or the incorrectness of the previous decisions rendered by this court, and referred to in the first division of the opinion, in respect to the assignment of error upon exceptions pendente lite; this for the reason that in my opinion the correctness of these rulings is no longer controlling, but the question as to whether the assignments shall he considered as properly made is controlled absolutely by the act of the legislature of 1921 (Ga. L. 1921, p. 232.) In this respect I differ with the intimation made in the majority opinion that the statute referred to is not retrospective in its operation.

The clauses of the State and Federal constitution prohibiting the enactment of ex post facto laws have reference solely to criminal statutes, although civil statutes retrospective in character, which impair the obligations of contracts or which have the effect of divesting previously acquired rights, stand upon the same basis. A purely remedial statute, although retrospective in character, does not, however, come within such inhibition, where it does not purport to relieve an appellant of any duty or obligation in which the opposite party might have a vested right or interest, but which seeks merely to provide the proper construction which the appellate courts are to give as to what constitutes a proper compliance by an appellant with already existing duties in the enforcement of already existing rights. Wilder v. Lumpkin, 4 Ga. 208; Baker v. Smith, 91 Ga. 142 (16 S. E. 967); Pritchard v. Savannah &c. R. Co., 87 Ga. 294 (13 S. E. 493); Willis v. Fincher, 68 Ga. 444, 445 (1); Lears v. Seaboard Air-Line Ry., 3 Ga. App. 614, 618 (60 S. E. 343); 36 Cyc. 1206 (d).