Stewart v. Hasty, 31881.

• Decision Date: 09 June 1948
• Docket Number: No. 31881.,31881.
• Citation: 48 S.E.2d 757
• Parties: STEWART. v. HASTY.
• Court: Georgia Court of Appeals

48 S.E.2d 757

STEWART.

v.HASTY.

No. 31881.

Court of Appeals of Georgia, Division No. 2.

June 9, 1948.

Rehearing Denied July 26, 1948.

Syllabus by the Court.

1. "When the plaintiff in a trover suit has replevied the property and, on the trial of the case, fails to recover or dismisses his petition, the defendant, instead of suing on the replevy bond, may recover the property and its hire, or the sworn value placed upon the property in the petition." Code of 1933, § 107-209.

2. In the absence of proof of fraud, or of mutual mistake of law as to the effect of such voluntary dismissal, the court has no authority or discretion to reinstate the case over the objection of the defendant; and has no alternative than to enter up restitution judgment on motion by the defendant.

3. No fraud or mutual mistake of law being proven in the instant case, the court did not err in refusing to reinstate and in entering judgment for the defendant for the sworn value of the property.

4. The brief of the defendant in error contains references not entirely courteous to opposing counsel, and such expressions should not be found in a brief. Furthermore, the brief contains certain facts not found in the record. No such expression not found in the record should have been included in the brief.

Error from Superior Court, Lowndes County; Geo. R. Lilly, Judge.

Action of bail trover by C. E. Stewart against J. L. Hasty to recover an automobile, wherein plaintiff took possession of the automobile and later dismissed the action. To review a judgment overruling plaintiff's motion to reinstate the action and entering restitution judgment for defendant, plaintiff brings error.

Judgment affirmed.

On May 24, 1947, Charles E. Stewart filed an action of bail trover in the Superior Court of Lowndes County, Georgia, against James L. Hasty, d/b/a Hasty's Body and Fender Works, for the recovery of an automobile. When Hasty failed to furnish bond, Stewart on the same day filed bond and took possession of the automobile. On July 12, 1947, the plaintiff's attorney dis missed this action in writing on the petition and filed it with the clerk and on the same day filed a second bail trover suit on the same cause of action against the Hasty Body and Fender Works, a partnership composed of James L. Hasty and V. E. Hasty. Upon the call of the docket at the opening of the November Term of said court on November 17, 1947, when the plaintiff's order of dismissal of the first suit was entered upon the docket, counsel representing James L. Hasty moved for a restitution judgment because of the voluntary dismissal of the bail trover suit against his client, in response to which on the next day, November 18, the plaintiff by his counsel in writing moved the court to reinstate said case which had been dismissed. Prior to the hearing on this motion for reinstatement, but after the call of the docket and the defendant's motion for a restitution judgment, the plaintiff filed bond for the production of the automobile in the second trover case. Defendant James L. Hasty filed no answer to the first suit; however, the partnership answered the second suit and the same, having been continued for providential cause, now stands ready for trial.

At the hearing on the motion to reinstate on November 21, 1947, plaintiff's counsel stated in his place (the equivalent of testifying) that counsel for the defendant called him on the telephone, informed him that Hasty's Body and Fender Works was a partnership, composed of James L. Hasty and V. E. Hasty, and requested that he (plaintiff's counsel) amend the suit to include the partnership, agreeing that if the suit were amended the defendant would make no objection to the amendment; that later counsel for both parties met in the clerk of court's office and that at this time counsel for the defendant agreed to the plaintiff dismissing the first suit and filing a second suit to include the partnership, saying that if the proper parties were not included he would file a plea in abatement; and that he (counsel for the plaintiff) relied in good faith upon counsel for the defendant's representation that, if the first suit were dismissed and a second suit filed against the proper parties, he would raise no point of law against the dismissal of thefirst suit and would proceed to trial on the merits of the case, and that counsel for the plaintiff was misled by these representations of counsel for the defendant and by a mistake of law as to the effect of the dismissal of said case. Plaintiff's counsel asked that the first suit be reinstated on the docket to obviate the mutual mistake of law of the parties.

Counsel for the defendant stated in his place that he had met counsel for plaintiff in the office of the clerk of the superior court and had told him that the Hasty Brothers was a partnership and that it was his intention to file a plea of abatement in the case; that he as counsel for the defendant had requested that the plaintiff amend his suit to include the other partner and that he would consent to the amendment and would try the case on its merits; that several days later he was in the clerk's office and found that the case had been dismissed and a new case filed against the partnership; that he does not remember any other conversation about the matter; and that he had learned at the time of the call of the docket at the present term that counsel for the plaintiff was ignorant of the law concerning the effect of his dismissal and the resulting restitution judgment, and was confident that plaintiff's counsel only became aware of this effect of the dismissal during the present term of court when he was informed that counsel for the defendant intended to make a motion for restitution judgment.

Following the foregoing argument of counsel, the judge entered this judgment: "The within motion to reinstate said case having come on before me for a hearing, and after hearing arguments on both sides the motion is hereby overruled." The court then orally stated: "It is mandatory upon me to allow the defendant to enter up a restitution Judgment for $500.00 [the sworn value placed upon the automobile in the first petition];" and thereupon a written restitution judgment in the usual form was entered for the defendant on...