Johnson v. Walls
| Decision Date | 24 November 1919 |
| Docket Number | 3 |
| Citation | 215 S.W. 888,140 Ark. 591 |
| Parties | JOHNSON v. WALLS |
| Court | Arkansas Supreme Court |
Appeal from Independence Circuit Court; Dene H. Coleman, Judge affirmed.
Judgment affirmed.
Jo Johnson, for appellant.
Makes the same points and cites the same authorities as in No. 2 ante, contending that the court erred in denying his petition to intervene and to reinstate the cause.
Troy Pace, for appellees.
The whole matter is res judicata; the judgment of the Baxter Circuit Court concludes the matter. 29 Ark. 80; 84 Id. 203. 1 R. C. L., sec. 24; 1 Cyc., sec. 275.
G. W Walls, as administrator of the estate of J. W. Fulson through his attorney, Jo Johnson, instituted this action against the Missouri Pacific Railroad Company in the Independence Circuit Court to recover damages for the death of Fulson, which the complaint alleged were caused through the negligence of the servants of the railroad company. After the complaint had been filed the Director General of Railroads ordered that suits against railroad companies should be commenced either in the county where the person injured by the railroad company resided at the time of his injury, or in the county where the accident occurred. After this rule was adopted, Walls, the administrator, through his attorney, Jo Johnson, instituted another suit against the Missouri Pacific on the same cause of action in the Baxter Circuit Court. But the suit in the Independence Circuit Court was not dismissed upon the institution of the second suit.
Afterwards the administrator of the estate of Fulson in succession to Walls compromised with the railroad company and settled for the sum of $ 10,000 and upon such settlement the administrator dismissed the cause pending in the Baxter Circuit Court. Following the order dismissing the cause in the Baxter Circuit Court the administrator, in succession, dismissed the case involving the same cause of action in the Independence Circuit Court at a special term of that court held on November 25, 1918.
At the December term of the Independence Circuit Court Jo Johnson filed a motion to set aside the order of dismissal and asking that the cause be redocketed and also filed his petition asking that he be allowed to intervene, setting up in substance that he had a contract with the administrator of the estate of Fulson and half expenses as plaintiff's attorney.
As grounds for his motion to reinstate the cause in the Independence Circuit Court, Jo Johnson, among other things, alleged that, after the dismissal of the case that was pending in the Baxter Circuit Court, he made inquiry of the clerk of the Independence Circuit Court as to the date the court would convene, and the clerk replied: "There won't be any court before the term beginning the 30th day of December, and these cases will be set for trial on Wednesday of the first week." That after receiving this information he (Johnson) relied upon the same and was misled thereby, and without any fault on his part was thus prevented from appearing in the Independence Circuit Court on the day the cause was dismissed. He also set up that he was misled by certain statements and correspondence made by the appellee's counsel and induced to believe that no action would be taken in the case of the administrator of the estate of Fulson against the Missouri Pacific and hence was not in attendance on the court at the time the case was dismissed.
The railroad company responded to the motion disclaiming and denying any responsibility for the act of the clerk and denying that any act upon its part or upon the part of its attorney or any other employee misled the petitioner and disclaiming responsibility for any act of the clerk in that particular.
The railroad company further alleged that the intervener, many months after the institution of this suit, without taking any further steps to prosecute the same, refiled the same complaint, setting up the same cause of action in the circuit court of Marion County, and therefore, in compliance with the order of the Director General of Railroads, filed copy of the same complaint setting up the same cause of action in the circuit court of Baxter County, the county where the accident occurred; that later the administration in succession, becoming dissatisfied with the services of Jo Johnson, the intervener, dismissed the cause of action and settled same with the appellee; that thereafter the intervener filed petition in his name and in the name of one F. B. Sizer, associate counsel, in the circuit court of Baxter County, for the allowance of attorney's fee on account of the prosecution of this same cause of action. This petition was heard upon the response of the appellee thereto, together with the evidence adduced and a judgment was rendered in the Baxter Circuit Court denying the right of Jo Johnson, the intervener, to claim or recover any fee and pleading such proceeding and judgment as res judicata.
The railroad company further alleged that all matters and things in connection with the original action and in connection with the intervention had been completely settled in the circuit court of Baxter County, and that, therefore, there was no reason for...
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