| Ark. | Apr 30, 1917
(after stating the facts). While there is some confusion in the record entries, yet it appears from the judgment roll proper that B. Forschler had instituted a suit in which D. C. Cash, the Liverpool & Lon-, don & Globe Insurance Company, C. H. Ellis, William Lytle and Abner Hargus were made parties defendant, and at the August term, 1914, the plaintiff by his attorneys elected to take a nonsuit and the cause was dismissed without prejudice and at his cost.
True, the record shows that at the August term, 1913, a stipulation was filed in a case styled “B. Forschler, Plaintiff, v. The Liverpool & London & Globe Insurance Company, Defendants,” in which the parties agreed that that cause should be dismissed by the plaintiff to save costs. The judgment entry of 1914 showing the disposition of the cause against the insurance company and Cash and the other defendants recites that it was a nonsuit and that the cause was dismissed without prejudice. At á succeeding term of the court the present' suit was instituted, in which B. Forschler and Katherine Forschler, his wife, were named as parties plaintiff and the appellees were named as parties defendant. The' defendants moved to dismiss the same, and the court,'at 'the'February term, 1916, dismissed the pres-r ent suit'under ,an order which recites as follows: “On this day’ the amended motion of the defendants to dismiss ’ the cause of action herein coming on to be heard, comes the parties by their ¡attorneys, and after hearing the argument of counsel and the examination of the records of tins cause aLid the exhibits to said motion, and being fully and sufficiently advised as to the law arising cm said motion, finds in favor of the defendants and sustaiiLS said motion to dismiss plaintiff’s complaint. It is therefore considered, ordered and adjudged that the plaintiff’s complaint and the cause of action herein be a Lid the same is dismissed.”
Afterwards, on motion of the defendants, the court corrected this judgment by the nunc pro tune judgment set forth in the statement. But appellees did not attempt to have the court correct the judgment of the court entered at a former term and which, therefore, had become final, showing that in the action which B. Forsehler had originally instituted against the appellees a nonsuit had been taken and that cause dismissed without prejudice. The appellees contend that the present suit was the same suit and the same cause of action, and the court so finds in its nunc pro tunc judgment.
Conceding, for the sake of argument, that this contention and this finding is correct, it does not follow that B. Forsehler would not have the right to maintain this suit. Because in the former action there was a nonsuit and the cause was dismissed without prejudice in August, 1914, and the present suit was begun in November thereafter.
(1-2) Therefore, even though the present suit be for the same cause of action and the same suit as the former, the appellant, B. Forsehler, instituted it within the- time allowed by the statute. (Sections 5083 and 6167 of Kirby’s Digest.) This court has held that a nonsuit, whether voluntary' or involuntary, does not constitute a judgment upon the merits and will not support a plea of res adjudicata. Hallum v. Dickinson, 47 Ark. 120" date_filed="1886-05-15" court="Ark." case_name="Hallum v. Dickinson">47 Ark. 120, 125; Floyd v. Skillern, 121 Ark. 454" date_filed="1915-12-20" court="Ark." case_name="Floyd v. Skillern">121 Ark. 454.
Appellees contend that if a bill of exceptions had been preserved and filed by the appellants that such bill of exceptions would show that the present suit had been dismissed at a former term by stipulation of the parties, but the appellees, themselves, by a certiorari, have brought into the record the judgment entry from which it appears, as already stated, that the original suit instituted by B. Forschler against the appellees was dismissed without prejudice to the plaintiff, plaintiff having elected to take a nonsuit. No bill of exceptions in the present case could have the effect to change that record. Appellees do not, and could not, by their motion to dismiss the present suit, change the effect of the judgment of nonsuit and dismissal without prejudice in the original suit. If this suit was dismissed at a former term by agreement of the parties based upon a consideration, and if this could avail appellees as a defense to the present suit it was a matter to be set up by answer and not by motion to dismiss.
In bringing the present suit, the appellants were clearly within their rights under the law, and the court erred in dismissing' same. The judgment is, therefore, reversed and remanded with directions to overrule the motion to dismiss and to reinstate the cause.