J. R. Watkins Medical Co. v. Horne

• Decision Date: 22 April 1918
• Docket Number: 312
• Citation: 203 S.W. 24,133 Ark. 570
• Parties: THE J. R. WATKINS MEDICAL CO. v. HORNE
• Court: Arkansas Supreme Court

203 S.W. 24

133 Ark. 570

THE J. R. WATKINS MEDICAL CO. v. HORNE

No. 312

Supreme Court of Arkansas

April 22, 1918

Appeal from Greene Circuit Court; W. J. Driver, Judge; reversed.

Judgment reversed and cause remanded.

R. P Taylor, for appellant; Tawney, Smith & Tawney (of Winona Minn.), of counsel.

1. The record contains no proof that appellant ever transacted business in Arkansas.

2. It was error to direct a verdict. The first suit was properly dismissed without prejudice. Kirby's Digest, § 6167; 69 Ark. 431; 122 Id. 456. After the dismissal of the first suit, appellant complied with the Arkansas laws and was entitled to sue again. Thompson on Corp. (2d ed), § 6720; Kirby's Digest, §§ 5083, 6167; 115 Ark 166; 124 Id. 539; 122 Id. 456; 55 Id. 173, 295.

3. The suit was not barred. 77 Ark. 228.

Burr, Stewart & Burr and R. E. L. Johnson, for appellees.

A verdict was properly instructed. It was error to allow the dismissal of the suit, and then after appellant had complied with our laws to bring the second suit. 77 Ark. 379; 14 Cyc. 406; 6 A. & E. Enc. Pl. & Pr. 843; 109 U.S. 715; 81 Ark. 102; 74 Id. 536.

OPINION

HART, J.

This is a suit by The J. R. Watkins Medical Company against J. A. Horne and G. O. Light, to recover on a promissory note. On August 1, 1910, the defendants, J. A. Horne and G. O. Light executed their promissory note for $ 583.30 due and payable on or before six months after date to the J. R. Watkins Medical Company. On December 19, 1912, the Medical Company sued Horne and Light in the circuit court to recover a balance alleged to be due on the note.

The defendants filed an answer alleging that the plaintiff was a foreign corporation and had never complied with the statute of the State of Arkansas authorizing foreign corporations to do business in the State. It also alleged that the condition of the note was illegal. On September 6, 1916, in vacation, the plaintiff dismissed the action upon the payment of the costs to the clerk. On the 11th day of September, 1916, the plaintiff instituted the present action against Horne and Light on the same note. In the meantime the plaintiff had received authority to transact business in the State of Arkansas. In the instant case the defendants set up the same answer as in the original suit and also filed a motion to dismiss the complaint because the dismissal of the original suit in vacation without the knowledge or the consent of the defendants and the prosecution of the instant case, deprive the defendants of the right to set up plaintiff's noncompliance with our statute authorizing foreign corporations to do business in the State.

The court was of the opinion that under the facts stated the plaintiff could not dismiss its action in vacation, and, by subsequently complying with the laws of the State in regard to foreign corporations doing business here, again institute a suit on the same note and deprive the defendants of a defense available to them in the original action. The court therefore instructed a verdict for the defendants and from the judgment rendered the plaintiff has appealed.

The court was wrong. Section 6168 of Kirby's Digest reads as follows:

"The plaintiff may dismiss any action in vacation, in the office of the clerk, on the payment of all costs that may have accrued therein, except an action to recover specific personal property, when the property has been delivered to the plaintiff."

The facts in the present action do not bring it within the exception provided in the statute. In other words the instant case was not an action to recover the possession of specific personal property. Therefore, the statute expressly confers upon the plaintiff the right to dismiss its action in vacation upon the payment of the costs. This plaintiff elected to do. It subsequently complied with the law of the State with relation to foreign corporations doing business here. It then instituted another action against the defendants on the same cause of action. This it had a right to do. If it had the right to dismiss the first action under the statute, it is equally certain it had the right to bring another. The mere fact that in the interval it had complied with the laws of the State with reference to foreign corporations doing business here did not have the effect to deprive it of its right to bring the second action or to render available the dismissal of the first action as a plea of res adjudicata. At common law the plaintiff may submit to a voluntary nonsuit at any time before a verdict. Deneen v. Houghton County Street Railway Co., 150 Mich. 235, 13 A. & E. Ann. Cas. 134, 113 N.W 1126; Hancock Ditch Co. v. Bradford, 13 Cal. 637; New Hampshire Banking Co. v. Ball (Kan.), 57 Kan. 812, 48 P. 137, and Jones' Blackstone, book 3, par. 500, vol. 2, p. 1987. In the same section Blackstone says that after a nonsuit, which is only a default, the plaintiff may commence the same suit again for the same cause of action; but that after a verdict had, and judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. Other cases holding that a judgment of nonsuit is not a judgment upon the merits, and can not be pleaded as res adjudicata in another suit between the same parties upon the same cause of action are the following: Forschler v. Cash, 128 Ark. 492, 194 S.W. 1029; Hall v. Chess & Wymond Co. (Ark.) 131 Ark. 36, 198 S.W. 523; Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121, 27 L.Ed. 878, 3 S.Ct. 99; Gardner v. Michigan, etc., R. R. Co., 150 U.S. 349, 37 L.Ed. 1107, 14 S.Ct. 140, and extensive case...