T. J. Moss Tie Company v. Miller

Hart, J., (after stating the facts). It is the settled public policy of this State that during their respective terms courts of record have complete control over their judgments and decrees, and may review and correct any mistakes or errors into which they may have fallen during the term'. When for good -cause shown-the judgment is reversed or modified, the record- stands precisely as if no such mistaken or erroneous judgment had ever been entered. Underwood v. Sledge, 27 Ark. 295; Hawkeye Tire & Rubber Co. v. McFarlin, 146 Ark. 491, and eases cited; and Dawson v. Mays, 159 Ark. 331. It does not follow, however, that the court had a right ‘ to set aside its original judgment 'and render a new .judgment against the T. J. Moss Tie Company. The plaintiffs sued E. A. Bryant to assert a laborers’ lien on certain ties which they had made for him. T. J. Moss Tie Company was made a defendant to the action on the ground that it had purchased the ties from Bryant with notice of their liens. Judgment was rendered against both defendants in the justice’s court. An appeal bond was -duly executed by them with the United States Fidelity & Guaranty Company as surety. In the circuit court the plaintiffs elected to dismiss their cause of action against the T. J. Moss Tie Company and to take judgment against E. A. Bryant and the United States Fidelity & Guaranty Company as the surety on his appeal bond. This they had the legal right to do. Under our statute in all cases of appeal from a justice of the peace, if the judgment of the justice be affirmed, or if, on a trial anew in the circuit court, .the judgment be against the appellant, such judgment shall be rendered against him and the surety on his appeal bond. Crawford & Moses’ Digest, § 6531. While the circuit court had control of its judgment during the term, it could only revise or set it aside for good cause shown. The court set aside. its original judgment because it believed that the T. J. Moss Tie Company was a surety on the .appeal bond of E. A. Bryant, and that it was its duty, under the provisions of the statute just referred to, to render judgment against it as a surety on the appeal bond. The circuit court was of the opinion that under the terms of the appeal bond the T. J. M.oss Tie Company was a surety on it. We do not agree with the circuit court in this conclusion. It seems to us that Bryant and the T. J. Mose Tie Company were principals in the bond, and that the United 'States Fidelity & Guaranty Company alone was tlie surety. The plaintiffs, having elected to voluntarily dismiss their cause of action against the T. J. Moss Tie Company, could not, after the judgment of dismissal, have that judgment set aside without a proper showing. No such showing was made as to the T. J. Moss Tie Company, and it follows that the court erred in setting aside the dismissal as to it and allowing a reinstatement of the cause of action against it. It follows that the judgment must be reversed as to. the T. J. Moss Tie Company with directions to the court to dismiss the cause of action against it. It is claimed by counsel for the United States Fidelity & G-uaranty Company that, if the court erred in setting aside the judgment of dismissal as to the T. J. Moss ■ Tie Company, it necessarily results in a reversal of the judgment as to it. Tihey invoke the well known rule that a surety is released by discharge of his principal. They claim' that the T. J. Moss Tie Company was released from all liability in the action by the voluntary dismissal by the plaintiffs of their suit against . it; and that this released the surety company as its surety. The original judgment recites that the plaintiff by his attorney dismisses the cause of action as to the T. J. Moss Tie Company. This recital is contained in the original judgment in the circuit court in each case. There is nothing whatever im the record to indicate that it was intended that the dismissal should be with prejudice. Under our statute the dismissal of a suit before submission on its merits must, in the absence of proof to the contrary, be presumed to have been without prejudice to the right to renew it. Jones v. Graham, 36 Ark. 383. . The record shows that the plaintiffs had separate • claims of liability against Bryant and the T. J. Moss Tie Company. They had an account against Bryant for making ties for him and were asserting: a laborers’ lien on the ties under the statute. The T. J. Moss Tie Company had purchased the ties from Bryant with knowledge of the lien of the plaintiffs. Under this state of facts, judgment was properly rendered against each of the defendants. It is true that they joined in one appeal bond; but this they had a right to do under the statute. The United States Fidelity & Guaranty Company became the surety of each of the principals and by the conditions of the bond, which was in the language of the statute, became liable to pay whatever judgment was rendered in the circuit court against either of the defendants. Bryant had no defense to the action of the plaintiffs, and, under the section of the statute referred to, the court properly rendered judgment in each case in favor of the plaintiffs against Bryant and the United 'States Fidelity & Guaranty Company, the surety on his appeal 'bond. The fact that the plaintiffs dismissed their cause of action against the T. J. Moss Tie Company did mot in any manner affect the liability of the surety company on the appeal bond of Bryant. It follows that the judgment as to the United States Fidelity & Guaranty Company must be affirmed.