
    SEALS, ARMOUR & COMPANY v. STOCKS.
    Although the defendant in an action of hail-trover, which the-plaintiff voluntarily dismisses, is ordinarily entitled to a judgment against the latter and his sureties upon a bond given by. him under section 4606 of the Civil Code for the purpose of obtaining possession of the property, yet, where such an action was dismissed because of a mutual mistake of law upon the part of counsel for both parties as to its effect, and upon an implied, if not an express understanding that the only effect, of the dismissal would be a mere failure by the plaintiff to recover in his action, and during the same term the plaintiff,, in resistance to a motion of the defendant to enter a judgment, upon the bond, made a motion to reinstate the bail-trover action for the purpose of having the same tried upon its merits,, it was error to deny the lattdr motion.
    
      Atkinson, J., dissenting. — Where a bail-trover proceeding was voluntarily dismissed by the plaintiff for the reason that counsel did not believe that its further prosecution would be fruitful, it. affords no ground for its subsequent reinstatement, even during-•the term at which it was dismissed, that the plaintiff’s.counsel afterwards discovered that, ás a matter of law, the plaintiff and his sureties were liable over to the defendant upon the bail-bond because of the failure of the action. If, in order to relieve' against the consequences of such dismissal, the plaintiff’s counsel desired to invoke the exercise of an equitable discretion of the court upon the ground that the conduct of the defendant’s, counsel had misled him, and that he was induced to the dismissal because of some agreement or understanding between the defendant’s counsel and himself, he cannot complain of the refusal of the court to interfere in his behalf, where he does-not plainly and distinctly set out the alleged agreements or-understandings of the opposite counsel, or that such statements, if any, were made with the design of misleading him,, nor allege distinctly how and in what manner he was misled..
    Submitted June 15,
    Decided November 9, 1896.
    Motion to reinstate. Before Judge Hart. Greene' superior court. August term, 1895.
    
      Samuel H. 'Sibley and (r. A. Merritt, for plaintiffs.
    
      James B. Park, Jr., and Ph. Robinsqiv, for defendant..
   Lumpkin, Justice.

It is mow well settled that the defendant in an action of bail-trover, which the plaintiff voluntarily dismisses, is ordinarily entitled to a judgment against the latter and his sureties upon the bond given by him nnder section 4606 of the-Civil Code for the purpose of obtaining possession of the-property in dispute. Thomas v. Price, 88 Ga. 533; Block v. Tinsley, 95 Ga. 436. A majority of the court axe, however, of the opinion that the general rule is inapplicable t'o the present case.

It appears that Seals, Armour & Co. brought against Stocks an action of bail-trover for the recovery of a mule. Pending the action the mule died; and the plaintiffs, becoming satisfied that on account of thei insolvency of the defendant they had no- hope of making their action productive, that is mo hope that anything could be realized upon a. judgment in their favor, were willing to' dismiss the case. It seems that a. conference of some kind was had between the plaintiffs’ counsel and counsel for the defendant with reference to this matter, and that both believed a, separate suit upon the bond — in which the question as to the cause of the death of the mule and the liability of the plaintiffs-therefor could be fully investigated — would be the proper remedy to be pursued by the defendant. It also appears that the plaintiffs’ counsel, in dismissing the bail-trover action,- intended merely to abandon the prosecution of that case, and that, in the conference above mentioned, the defendant’s counsel believed that such would he the legal effect of the dismissal. Accordingly, the case was dismissed.. There is nothing in the record remotely suggesting that the plaintiffs doubted their ability to obtain a verdict and judgment. Their -only reason for dismissing was, that the death of the mule satisfied them 'that such a judgment would be worthless. During the same term at which 'the dismissal was had, the defendant’s counsel moved to enter up a money judgment against the plaintiffs and their surety, for the sworn value of the mule, as recited in the bond given by the plain’tiifs, as above stated. In resistance to- this motion, the ifiaintiffs’ counsel moved to- set aside the. judgment of dismissal and reinstate the. case. The main ground of this motion was, that the plaintiffs’ action had been dismissed •because' of the conference which had taken place between ■the counsel, and of the mutual mistake of both as to what would be the legal effect of the dismissal. It also appeared from the recitals of the motion that the plaintiffs’ action, upon its merits, was sustainable if carried to trial. Assuming that these recitals were true, the plaintiffs would have been entitled to' a verdict. Th© court overruled the motion, holding that no sufficient legal reason was shown for reinstating the case, and that the court had no' discretion in the matter; and accordingly, the judgment moved for by the •defendant was allowed.

We think it obvious from this statement of the facts (as to which there was no dispute) that the plaintiffs would not, in the first instance, have dismissed their action but for the mutual mistake of law upon the part of counsel for both parties; and that what occurred between them amounted, if not to an express, at least to an implied understanding and agreement that the only effect of the dismissal would be a mere failure by the plaintiffs to' recover in their action. The record does not clearly disclose what was said pro and ■con, by 'the respective counsel, but th© result of their inter-id ew is sufficiently apparent. It cannot, we think, be ■doubted 'that the plaintiffs’ counsel dismissed the ease under the honest impression and belief that he was doing no more than abandoning his clients’ right to recover therein, and that counsel on the other side acquiesced in this view and •consented to. such a disposition of the case, and was therefore under an obligation not to take any further steps in the •cas©' inconsistent with such understanding and agreement. AAHiile there was no agreement in writing which the court •could enforce as such, there evidently was a definite understanding as to the legal effect -of an order of court which the-plaintiffs’ counsel, as a result of the conference had with counsel for the opposite party, caused to be entered under the honest belief that the latter consented thereto. It is true that Rule 20 of the 'Superior Courts declares: “Eo- consent between 'attorneys or parties will be enforced by the-court, unless it be in writing and signed by the- parties to the consent, where such consent or agreement is denied by the. opposite party.” -But it was held in Bradshaw v. Gormerly, 54 Ga. 557, 559, that though such an agreement, rested wholly in parol, yet, if acted upon, in good faith and partly executed by one of the parties thereto-, 'the opposite-party would be “estopped from, saying that the agreement was net in writing.” It is clear that counsel for the plaintiffs would not have procured the order in question, to boentered but for the fact that he relied upon what he believed to he -a distinct understanding and agreement between himself and opposite counsel that such order should operate as a final disposition of the case; and having acted upon and fully executed this agreement, it is binding on the defendant as effectually as though it had been reduced to writing and signed by his counsel. It makes no difference that, owing to a misconception of the legal effect of the order, the end in view failed of accomplishment. This result grew out of the mutual mistake of counsel as to a matter of law, viz.: as to how their agreement could he legally carried into effect. It would be- manifestly unfair to -allow one of the parties to profit thereby, deriving-an advantage not contemplated by the agreement as actually made. Indeed, our cod© distinctly recognizes the equitable principle that relief from the consequences of a mistake of law will be granted where, through a. misconception on the part of both parties to an agreement, the language employed tp express the same- has a different legal meaning-from that contemplated, -and “operates as a gross injustice-to one” of the parties, “and gives an uneonscierutious advantage to the other.” Civil Code, §3979.

Bnt even if the plaintiffs in error had no absolute right to insist upon the enforcement of the verbal understanding and agreement had with counsel for the defendant, we think the trial judge erred in holding that he had no discretion in the matter of reinstating the case. The motion to reinstate was made duiiug the same term at which the order of dismissal had been entered; and as all judgments .are, until the end of the term, under the control of the judge, he unquestionably has full and ample power, for any good and sufficient reason, to modify o«r vacate them, as the ends of justice may require. We think the case in hand was one calling for the exercise of this discretionary power resting with the trial judge. When he saw that the plaintiffs’ counsel had keen misled or entrapped, _ by the conduct of counsel on the other side, into making a disposition of the case which would not have been made but for the mistake in question, the trial judge might very properly have exercised this power by correcting the wrong thus done. It makes no difference that the defendant’s counsel was perfectly innocent of any intention to mislead or deceive, or that he was perfectly honest in his erroneous impression as to the effect of the dismissal when he permitted counsel for the plaintiffs to act upon his consent thereto. The injury to the plaintiffs is exactly the same as if the conduct of defendant’s counsel had been actually wrongful • — which was, however, by no means the ease.

Again, it is proper and pertinent to observe that the rale laid down in the cases cited at the beginning of this opinion is based solely upon the idea that the plaintiff in an action of trover, who obtains possession of the property in dispute by giving the requisite bond and security, will not be permitted. to unjustly deprive the defendant of his right to enter judgment on the bond, which might result if the plaintiff were allowed to capriciously dismiss his action. The reason of -that, rule does not apply even remotely to the case in hand, the facts of which show conclusively that the plaintiffs, in dismissing their action, had no. intention, to defeat any right of the defendant, and were" actuated by no improper motive, but -that their real purpose was perfectly legitimate, was disclosed and explained to defendant’s counsel, and was fully understood by and acquiesced in by the latter. Judgment reversed.

Atkinson, Justice

dissenting.

Whatever of difference there is between the members of the court upon the questions of law in this ease arises from .a. disagreement as to the legal effect, of the judgment which was Sought to he set aside in the court- below. The majority -of the court consider that judgment as being in effect a mere dismissal or discontinuance of their action by the plaintiffs; whereas the- writer is of the opinion that, under the facts stated, the act of the plaintiffs amounted to a retraxit, -and that the dismissal in open court of their suit, because of the fact that they did not believe that the same would be fruitful if prosecuted to- a conclusion, was an open, public, and voluntary renunciation by ’the plaintiffs of their suit, and as well of their cause of action. The legal effect of a retraxit, 'after judgment of dismissal -entered in consequence thereof, is to extinguish the plaintiffs’ cause of action; the legal effect of a mere dismissal or discontinuance of a suit by the plaintiffs is to leave the cause of action still alive, and it operates only to dispose of 'the pending suit with a privilege- to' the plaintiffs to renew their suit thereafter upon the payment of costs. Civil Code, §§5042-5043. That the action of the plaintiffs amounted to- a re’traxit within the. meaning of the provisions of the code is evident from a statement of the facts preceding the- rendition of the judgment, as they state them in their application to reinstate the dismissed suit. The plaintiffs s-ued out a bail-troVer proceeding to recover a certain mule; the defendant failing- /to give bond for the forthcoming of the property to answer the judgment, the plaintiffs, under the provisions of onr code., executed a bond and took possession of the property. Pending the action the mule which Was the subject of the controversy died, and when the case came on for 'trial, the/ plaintiffs voluntarily, and in open court, dismissed their action, assigning as a reason therefor that they could not hop© that the action would in future prove fruitful, and, therefor©, they dismissed it. That they intended this as a final abandonment of the pending suit, and as well a. renunciaition of their cause of action, is conceded in the opinion of the majority, and it is therefore unnecessary to cite the evidente further upon that point; for Mr. Justice Lumpkin, speaking for the court, says: “It-also appears that the plaintiffs’ counsel, in dismissing the bail-trover action, intended merely to abandon the prosecution. of that case, and that, in the conference above mentioned, the defendant’s counsel believed that such would be ■the legal effect of the dismissal.” And further in his opinion he says: “It cannot, we think, be doubted tbat the plaintiffs’ counsel dismissed the ease under the honest, impression and belief that he was doing no more than abandoning-his clients’ right to recover therein.” These references to. the opinion of the majority are made for the purpose merely of showing that in the minds of the plaintiffs, at the time the suit was dismissed, there was a fixed determination not to prosecute, their action, and, according to section 504-2 of the Civil Code, their right of action was thereupon gone forever. When the dismissal upon these considerations occurred, it was a judgment upon the merits- as conclusive upon the plaintiffs as would have been a judgment of dismissal upon a general demurrer filed to- their declaration as for the want of a cause: of action. It was as conclusive upon the plaintiffs as would have been a. judgment in their favor entered upon a confession of the cause of action made by the defendant. It was a judgment which disposed of the entire matter of controversy between the parties, and such a judgment as the Court would neither have had the power nor discretion to set aside, except for error committed in its rendition, or for such reason 'as would have authorized a court of equity to furnish relief in faVor of the plaintiffs.. If all the facts stated in the plaintiffs’ application for the reinstatement be admitted as true, 'then no reason appears why they should prosecute; their action at this time that did not appear and was controlling and operative at the time they dismissed their suit.

It is submitted that the majority of the court, in its opinion, anticipates the force of the alleged estoppel which is sought to be set up as against the. defendant in this case. If in consequence of any fraud, legal or moral, practiced upon the plaintiffs by the defendant 'they have been induced to dismiss their action, and ¡thus have exposed themselves to a liability to the defendant upon the replevy bond givear by the plaintiffs, that estoppel should have been urged and could have been made effective only in reply to the application of the defendant for a judgment of restitution upon the bond.. If the plaintiffs dismissed the case’ because their action, if affirmatively prosecuted, could mot have been fruitful, the alleged conduct of the defendant in acquiescing in. the dismissal would not have had the effect, upon the reinstatement of the suit, to have rendered that fruitful which theretofore was confessedly fruitless. Tor this reason the Conduct of the defendant could not be urged as a reason for the reinstatement of the case. As has been stated before, if the conduct of the defendant were such as to raise an estoppel in favor of the plaintiffs as against the defendant’s right to a judgment of restitution, that estoppel should have been set up, not in aid of a motion to' reinstate a suit which had been voluntarily dismissed upon an open and public renunciation of the cause of action upon which it was based, but to< defeat the right in favor of the defendant which grew out of the judgment of dismissal.

The writer of this cannot bring his mind 'to agree to the proposition that the facte stated make such a case of fraud as would authorize the court to set aside the judgment coinplained of, upon equitable principles such -as are invoked. It is respectfully submitted that section 3979 of the Civil Oode (it being the section, upon which the majority supports the argument that the court was justified in granting relief against the consequence of an alleged mutual mistake of law) has no application to the facts of the present case. That section provides as follows: “An honest mistake of the law as to the -effect of an instrument on the part of both contracting parties, when such mistake operates as a gross injustice to one-, and gives an unoonscienitious advantage to the -other, may be relieved in equity.” This is the rule with respect to- contracts; but it is submitted that where contracts have been reduced to- judgment, -another rule of law applies, 'and this is to be found in sections 3987 and 5370 of the Civil Code. Section 3987 provides, “The judgment of a co-unt of competent jurisdiction may be set aside by a decree, for fraud, accident, or mistake, o-r the acts of the adverse party unmixed with the negligence or fault of tixei petitioner.” Section 5370 of the Civil Oode provides,' “The judgment o-f a court of competent jurisdiction may be set aside by a decree in chancery, for fraud, accident, o-r mistake, or the acts of tine adverse party unmixed with the negligence or fault of the complainant.” The judgment of dismissal in this case ntot only disposed of the plaintiffs’ suit, huit extinguished ‘their cause- of action. It was rendered by a court of competent, jurisdiction, and the writer is unable to- find in 'the- facts of the present case any such circumstances as would authorize a court of equity to grant relief against the judgment. The -counsel for the defendant and for the plaintiffs dealt with each other at arm’s length. There were no mutual confidences! between, them. Ho- representation 'appears to have been made by the defendant’s counsel to induce the plaintiffs’ counsel to ■dismiss his action. The plaintiffs’ counsel may have been .laboring under an honest mistake, blit that mistake was not induced by any act of the adverse party. 'If the mistake • existed, it was a mistake which resulted from ign'oranoe of the law. It was a mistake which may be attributable to the negligence of the plaintiffs’ counsel in omitting to inform himself as to the legal effect of the step he was about ■to take iu bis client’s interest. The defendant’s counsel owed him no duly in the premises, and was under no obli- . gaition to point out -to him, even if he had himself known •to the contrary, the error into which the plaintiffs’ counsel ■was about to' fall. 'Counsel learned in the law are mot supposed to look to their adversaries for advice touching the legal rights of -their clients, and the writer has yet to see a case in which the courts have granted relief against the con- . sequences of the ignorance of counsel where the adverse party has done nothing to- induce the complainant to- act to-his own prejudice.

The reinstatement of the case, even if allowed, could :no-t have revived the plaintiffs’ dead cause of action. It would, therefore, have beeu useless to- have reinstated it. ' The judgment was- fairly rendered. The court- had no- arbitrary power to- set it aside; and no reason appearing which would have authorized it to- he set aside, he had no dis-cretion in the premises.

The legal effect of the reversal of the judgment refusing to reinstate the case- is to- deny to the defendant the benefit of the salutary rule of law which 'entitles him to restitution .as against a plaintiff who- institutes and prosecutes uns-uc- ■ cessfully a. badl-trov-er proceeding. Such a proceeding is one of the harshest known to tibie law. ■ The defendant nfay be 'deprived of Ms property by la summary proceeding, but ■the law reserves to Mm the right to restitution if the plaintiff should fail in his action. Such was the present case, and this court- should not deny to him the right which the [law has established iu Ms favor.

Upon 'these considerations, the judgment 'of the court below should be affirmed.  