We have not previously considered whether a final judgment creates a vested or substantive right in the holder of that judgment qualifying it as an “accrued right" for purposes of Code § 1-239 . However, in Bain v.Boykin, 180 Va. 259, 23 S.E.2d 127 (1942) , we held that the litigant's right in the trial court judgment was an “ ‘inchoate right, which would become vested upon the happening of one of two events, viz., an affirmance of the decree of the trial court by the Supreme Court of Appeals, or by the expiration of the period allowed at the time in which to take an appeal.’ " Id. at 264, 23 S.E.2d at 129 (quoting Kennedy Coal Corp. v. Buckhorn CoalCorp., 140 Va. 37, 45, 124 S.E. 482, 485 (1924) ).
In Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942), we deprived a defendant of his defense that the plaintiff had failed to register under the fictitious name statute in effect at the time the parties entered into the contract. The amendment came long after the contract had been performed and, in fact, while the case was on appeal before this Court.
See Corbin on Contracts, Vol. 6, Sec. 1532, p. 1043; 53 C.J.S., Licenses, 59-a, p. 714; Annotation, 118 A.L.R. 646, p. 659. Cf., Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127. But we do not agree with the contention that the parties are in pari delicto and for that reason the agreement is not enforceable by the plaintiffs.
As to the granting, or refusal, of leave to sue being discretionarywith lower court, and not subject to review byappellate court: 34 C.J. 1085. As to mere delay in assertinga right not ipso facto barring its enforcement in equity: 1 C.J. 1153, Par. 400; 21 C.J. 219. Messrs. Gregory Gregory and John D. Wylie, of Lancaster, for Appellant, in reply, cite: As to a judgment, morethan ten years old, being neither property nor vested right,but only a potential cause of action: 206 S.C. 355, 34 S.E.2d 592; 42 S.C. 88; 180 Va. 259, 23 S.E.2d 127; 11 Am. Jur. 1199, Sec. 370. As to permission to sue on ajudgment more than ten years old being a mere remedy andmay be entirely withdrawn by Act taking effect immediately: 16 C.J.S. 685, Sec. 266; 142 So. 550, 225 Ala. 199; 219 N YS. 420, 218 App. Div. 541; 12 C.J. 980, Note 8; 16 C.J.S. 691, Sec. 271; 18 Wis. 437; 12 C.J. 980; 213 Ill. 332, 72 N.E. 1058; 166 Cal. 707, 137 P. 919, L.R.A. 1916-B, 1209; 227 N.C. 72, 40 S.E.2d 690. November 26, 1947.
The district judge so opined, without citation of authority. If the statute were merely procedural and not substantive it would be an easy decision that the 1973 General Assembly intended to render the 1964 statute entirely inapplicable for any installation completed before March 13, 1973, at least those installations not yet five years old. See Bain v. Boykin, 180 Va. 259, 264, 23 S.E.2d 127, 129 (1942) ("It was an inchoate right which would become vested . . . by the expiration of the period allowed at the time in which to take an appeal."); Fletcher v. Tarasidis, 219 Va. 658, 661, 250 S.E.2d 739, 740 (Va. 1979) ("Litigants hold no vested rights in procedural statutes . . . ."); Phipps v. Sutherland, 201 Va. 448, 111 S.E.2d 422 (1959). We are dealing, however, with the situation where, though the statute was substantive, nevertheless, the fixed time had only started to run but had not fully elapsed when it was repealed.
” Id. at 751, 51 S.E.2d at 230 (emphasis added). In reaching this conclusion in Phlegar, we relied in part on our decision in Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942), where we interpreted former Code § 4722(1)–3 and held a certificate “filed after the bringing of [an] action and prior to the time of final judgment was a sufficient compliance with the statute.” Id. at 751, 51 S.E.2d at 229.
Rafferty correctly concedes that this procedural amendment does apply to his case if it is a civil proceeding. Code Sec. 1-16; see Bain v. Boykin, 180 Va. 259, 265-66, 23 S.E.2d 127, 130 (1942). Next, we consider which appellate court has jurisdiction.
Now it is the plaintiffs who say they are entitled to invoke the most recently enacted statute. As the plaintiffs point out, we held in Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942), that the law in effect at the time the appellate court decides a case is the governing law, except where substantive or vested rights would be affected. Under this rule, we look to the 1987 revision for resolution of the question to be decided in this case. This is not to suggest that we think the trial court erred in deciding the way it did under the law as it then existed or that we agree with the Marriott defendants' argument that the 1983 amendment impliedly repealed the exception contained in the 1982 law.
On the other hand, a mere expectancy of future benefit, or a contingent interest in property founded on anticipated continuance of existing laws, does not constitute a vested right. Brown v. City of Topeka, 146 Kan. at 981. See also Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942). A vested right is a right so fixed that it is not dependent on any future act, contingency or decision to make it more secure, and a defendant in an action does not acquire a vested right in a judgment dismissing an appeal, but only an inchoate right which will become vested upon the happening of an affirmance by the appellate court or by the expiration of the period allowed for appeal.
12:1), which, she says, mandates use of a statewide standard of care in malpractice cases. Relying on Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942) (amendment enacted to statute during appeal applied retrospectively), she argues that we should now hold that the new statute controls the determination of Kramer's qualifications and requires a remand of this case for a new trial because the evidence clearly shows the witness' knowledge of the statewide standard. Sec. 8.01-581.12:1.