Colclough v. Bank of Penfield

160 Ga. 303 | Ga. | 1925

Gilbert, J.

The petitioners in this case voluntarily dismissed their suits in the superior court. During the same term of court they filed a motion to reinstate the cases. This motion was denied, and no exception was taken to that judgment. It is alleged in the present petition that the judgment was proper under the law. “When a plaintiff, by his counsel, voluntarily dismisses his petition, whether for a good or bad reason, the court has no authority, over objection by the defendant, to reinstate the action.” Simpson v. Brock, 114 Ga. 294 (40 S. E. 266); Petty v. Piedmont Fertilizer Co., 146 Ga. 149 (90 S. E. 966). The ground upon which reinstatement was sought was that the party in control and who gave direction that the suits be voluntarily dismissed had informed counsel that a material and necessary witness absent when the case was called had not been subpoenaed, whereas the witness had been subpoenaed to attend at a previous term of the court; the person in control of the litigation and who gave that information to counsel in the case had made an honest mistake as to the law as to the effect of a dismissal of the suit, and an honest mistake of the law requiring the attendance of witnesses at all terms of the court subsequent to the service of the subpoena, and thus ignorantly misled counsel, who understood her to mean that the witness had not received any subpoena whatsoever in the case. The question, therefore, is whether equity will relieve a party who has voluntarily dismissed her cases under the circumstances stated. She insists that it was a mistake of law, such as may be relieved by a court of equity. Section 4570 of the Civil Code (1910) is as follows: “Mistake relievable in equity is some unintentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence. This power is exercised with caution, and to justify it the evidence must be clear, unequivocal, and decisive as to the mistake.” We will analyze that section to ascertain, if possible, whether the case falls under the provisions thereof. Under the allegations we can not say that the mistake was an unintentional act. The dismissal was intentional and voluntary, under the allegations of the petition. It was not an unintentional omission or an unintentional error arising from ignorance, surprise, imposition or misplaced confidence. Under the allegations the act was one which plaintiff would not have performed if her knowledge of the law had been accurate, but that does not mean that the act of dismissing the suits was unintentional. Certainly there was no imposition or misplaced confidence. The suits were intentionally. dismissed because of ignorance of the law. That brings us to the question whether an intentional act due to ignorance of the law will be relieved in equity. The Civil Code (1910), § 4575, provides: “Mere ignorance of the law on the part of the party himself, where the facts are all known, and there is no misplaced confidence, and no artifice or deception or fraudulent practice is used by the other party to induce the mistake of law or to prevent its correction, will not authorize the intervention of equity.” It is obvious that this section affords no relief, since it applies only to an honest mistake of the law as to the effect of an instrument on the part of both contracting parties. The mistake here has no reference to any contract or written instrument of any kind, nor is it suggested that the mistake or ignorance of the law was mutual. We conclude, therefore, that equity can not relieve where one has voluntarily dismissed a case with full knowledge of the facts, though ignorant of the law, where no fault or blame of any character is attributed to the opposite party. The court, therefore, did not err in dismissing the petition.

Judgment affirmed.

All the Justices concur.