Seals v. Stocks

• Decision Date: 09 November 1896
• Citation: 30 S.E. 278,100 Ga. 10
• Parties: SEALS et al. v. STOCKS.
• Court: Georgia Supreme Court

30 S.E. 278

100 Ga. 10

SEALS et al. v. STOCKS.

Supreme Court of Georgia

November 9, 1896

Syllabus by the Court.

Although 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 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 latter motion.

Where a bail-trover proceeding is 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, as 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 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.

Error from superior court, Greene county; John C. Hart, Judge.

Action of bail trover by Seals, Armour & Co. against upon the bond plaintiffs having dismissed; whereupon plaintiffs moved for a reinstatement of their action, which was denied, and plaintiffs bring error. Reversed.

Per Atkinson, J., dissenting.

G. A Merritt and Saml. H. Sibley, for plaintiffs in error.

P. Robinson and J. B. Park, Jr., for defendant in error.

LUMPKIN J.

It is now 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, under section 4606 of the Civil Code, for the purpose of obtaining possession of the property in dispute. Thomas v. Price, 88 Ga. 533, 15 S.E. 11; Block v. Tinsley, 95 Ga. 436, 22 S.E. 672. A majority of the court are, however, of the opinion that the general rule is inapplicable to 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 the insolvency of the defendant, they had no hope of making their action productive,--that is, no hope that any thing 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 be the legal effect of the dismissal. Accordingly the case was dismissed. There is nothing in the record remotely suggesting that the plaintiff's 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 plaintiffs, as above stated. In resistance to this motion, the plaintiffs' 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. The 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 the result of their interview is sufficiently apparent. It cannot, we think, be doubted that the plaintiffs' counsel dismissed the case 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 case inconsistent with such understanding and agreement. While 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 the 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: "No 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 not in writing."

It is clear that counsel for the plaintiffs would not have procured the order in question to be entered but for the fact that he relied upon what he believed to be 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 the 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 be 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 Code distinctly recognizes the equitable principle that relief from the consequences of the mistake of law will be granted where, through a misconception on the part of both parties to an agreement, the language employed to 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 unconscientious advantage to the other. Civ. Code, § 3979.

But 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...