Harris v. Moye's Estate, 4-8208.

• Decision Date: 26 May 1947
• Docket Number: No. 4-8208.,4-8208.
• Citation: 202 S.W.2d 360
• Parties: HARRIS v. MOYE'S ESTATE.
• Court: Arkansas Supreme Court

202 S.W.2d 360

HARRIS v. MOYE'S ESTATE.

No. 4-8208.

Supreme Court of Arkansas.

May 26, 1947.

Appeal from Monroe Chancery Court; A. L. Hutchins, Chancellor.

Action by D. C. Harris, doing business as D. C. Harris & Son, against the estate of W. H. Moye, deceased, to recover for breach of contract for sale of cotton. From an adverse decree, plaintiff appeals.

Affirmed.

John B. Moore, of Clarendon, and U. A. Gentry, of Little Rock, for appellant.

W. W. Sharp, of Brinkley, for appellee.

ROBINS, Justice.

Appellant instituted suit in the lower court against W. H. Moye, on December 19, 1942, alleging that Moye had, for valuable consideration, sold to appellant his equity in certain bales of cotton but had failed to deliver same. An accounting and judgment for value of Moye's equity in the cotton was prayed.

On October 9, 1944, the following order in that case was entered: "Now on this the 9 day of October, 1944, the same being a regular day of the October term of the court, this cause coming on to be heard upon the motion of the plaintiff [sic] filed at the last term of court to dismiss for the want of prosecution, the court, after being well and sufficiently advised as to all matters of law and fact arising herein, doth find: That the plaintiff has failed, neglected and refused to prosecute his action and the same should be dismissed with prejudice. It is therefore by the court considered, ordered and decreed that this cause be, and it is hereby, dismissed with prejudice, for want of prosecution."

On October 8, 1945, appellant filed a complaint in the instant case, identical with the one filed by him on December 19, 1942, except that in this case "Estate of W. H. Moye, Deceased" was designated as defendant.

To this latter complaint there was filed a motion to dismiss, which was a plea of res judicata, copy of the complaint in the previous case and the order of dismissal therein being attached as exhibits.

The motion was heard on this stipulation: "It is stipulated and agreed by and between the attorneys of record for the plaintiff and the attorney of record for the defendant, that the following is a correct statement of facts, and this stipulation shall be filed as a part of the record in this cause, and may be used by either party at any hearing thereof. That the plaintiff filed his complaint in the Monroe County Chancery Court against W. H. Moye on December 19, 1942, being cause Number 9042, which is identical with the complaint filed in this action, Number 9488. Both complaints allege the same facts and pray for the same relief. That the complaint in cause Number 9042 was filed in this court on December 19, 1942, and on August 7, 1944, the defendant filed a motion to dismiss for want of prosecution. That on October 9, 1944, this court entered an order in cause 9042 dismissing the plaintiff's complaint with prejudice. The precedent for the order was approved by the plaintiff's counsel of record at that time, and a copy of the same is attached hereto and made a part hereof. The present suit (No. 9488) was filed (in the legal sense), on October 8th 1945."

The lower court sustained appellee's motion to dismiss and rendered decree accordingly. This appeal followed.

For reversal app...