It is mow well settled that the defendant in an action of bail-trover, which the plaintiff voluntarily dismisses, is ordinarily entitled to a judgment against the latter and his sureties upon the bond given by him nnder section 4606 of the-Civil Code for the purpose of obtaining possession of the-property in dispute. Thomas v. Price, 88 Ga. 533; Block v. Tinsley, 95 Ga. 436. A majority of the court axe, however, of the opinion that the general rule is inapplicable t'o the present case.
It appears that Seals, Armour & Co. brought against Stocks an action of bail-trover for the recovery of a mule. Pending the action the mule died; and the plaintiffs, becoming satisfied that on account of thei insolvency of the defendant they had no- hope of making their action productive, that is mo hope that anything could be realized upon a. judgment in their favor, were willing to' dismiss the case. It seems that a. conference of some kind was had between the plaintiffs’ counsel and counsel for the defendant with reference to this matter, and that both believed a, separate suit upon the bond — in which the question as to the cause of the death of the mule and the liability of the plaintiffs-therefor could be fully investigated — would be the proper remedy to be pursued by the defendant. It also appears that the plaintiffs’ counsel, in dismissing the bail-trover action,- intended merely to abandon the prosecution of that case, and that, in the conference above mentioned, the defendant’s counsel believed that such would he the legal effect of the dismissal. Accordingly, the case was dismissed.. There is nothing in the record remotely suggesting that the plaintiffs doubted their ability to obtain a verdict and judgment. Their -only reason for dismissing was, that the death of the mule satisfied them 'that such a judgment would be worthless. During the same term at which 'the dismissal was had, the defendant’s counsel moved to enter up a money judgment against the plaintiffs and their surety, for the *12sworn value of the mule, as recited in the bond given by the plain’tiifs, as above stated. In resistance to- this motion, the ifiaintiffs’ counsel moved to- set aside the. judgment of dismissal and reinstate the. case. The main ground of this motion was, that the plaintiffs’ action had been dismissed •because' of the conference which had taken place between ■the counsel, and of the mutual mistake of both as to what would be the legal effect of the dismissal. It also appeared from the recitals of the motion that the plaintiffs’ action, upon its merits, was sustainable if carried to trial. Assuming that these recitals were true, the plaintiffs would have been entitled to' a verdict. Th© court overruled the motion, holding that no sufficient legal reason was shown for reinstating the case, and that the court had no' discretion in the matter; and accordingly, the judgment moved for by the •defendant was allowed.
We think it obvious from this statement of the facts (as to which there was no dispute) that the plaintiffs would not, in the first instance, have dismissed their action but for the mutual mistake of law upon the part of counsel for both parties; and that what occurred between them amounted, if not to an express, at least to an implied understanding and agreement that the only effect of the dismissal would be a mere failure by the plaintiffs to' recover in their action. The record does not clearly disclose what was said pro and ■con, by 'the respective counsel, but th© result of their inter-id ew is sufficiently apparent. It cannot, we think, be ■doubted 'that the plaintiffs’ counsel dismissed the ease under the honest impression and belief that he was doing no more than abandoning his clients’ right to recover therein, and that counsel on the other side acquiesced in this view and •consented to. such a disposition of the case, and was therefore under an obligation not to take any further steps in the •cas©' inconsistent with such understanding and agreement. AAHiile there was no agreement in writing which the court •could enforce as such, there evidently was a definite under*13standing as to the legal effect -of an order of court which the-plaintiffs’ counsel, as a result of the conference had with counsel for the opposite party, caused to be entered under the honest belief that the latter consented thereto. It is true that Rule 20 of the 'Superior Courts declares: “Eo- consent between 'attorneys or parties will be enforced by the-court, unless it be in writing and signed by the- parties to the consent, where such consent or agreement is denied by the. opposite party.” -But it was held in Bradshaw v. Gormerly, 54 Ga. 557, 559, that though such an agreement, rested wholly in parol, yet, if acted upon, in good faith and partly executed by one of the parties thereto-, 'the opposite-party would be “estopped from, saying that the agreement was net in writing.” It is clear that counsel for the plaintiffs would not have procured the order in question, to boentered but for the fact that he relied upon what he believed to he -a distinct understanding and agreement between himself and opposite counsel that such order should operate as a final disposition of the case; and having acted upon and fully executed this agreement, it is binding on the defendant as effectually as though it had been reduced to writing and signed by his counsel. It makes no difference that, owing to a misconception of the legal effect of the order, the end in view failed of accomplishment. This result grew out of the mutual mistake of counsel as to a matter of law, viz.: as to how their agreement could he legally carried into effect. It would be- manifestly unfair to -allow one of the parties to profit thereby, deriving-an advantage not contemplated by the agreement as actually made. Indeed, our cod© distinctly recognizes the equitable principle that relief from the consequences of a mistake of law will be granted where, through a. misconception on the part of both parties to an agreement, the language employed tp express the same- has a different legal meaning-from that contemplated, -and “operates as a gross injustice-*14to one” of the parties, “and gives an uneonscierutious advantage to the other.” Civil Code, §3979.
Bnt even if the plaintiffs in error had no absolute right to insist upon the enforcement of the verbal understanding and agreement had with counsel for the defendant, we think the trial judge erred in holding that he had no discretion in the matter of reinstating the case. The motion to reinstate was made duiiug the same term at which the order of dismissal had been entered; and as all judgments .are, until the end of the term, under the control of the judge, he unquestionably has full and ample power, for any good and sufficient reason, to modify o«r vacate them, as the ends of justice may require. We think the case in hand was one calling for the exercise of this discretionary power resting with the trial judge. When he saw that the plaintiffs’ counsel had keen misled or entrapped, _ by the conduct of counsel on the other side, into making a disposition of the case which would not have been made but for the mistake in question, the trial judge might very properly have exercised this power by correcting the wrong thus done. It makes no difference that the defendant’s counsel was perfectly innocent of any intention to mislead or deceive, or that he was perfectly honest in his erroneous impression as to the effect of the dismissal when he permitted counsel for the plaintiffs to act upon his consent thereto. The injury to the plaintiffs is exactly the same as if the conduct of defendant’s counsel had been actually wrongful • — which was, however, by no means the ease.
Again, it is proper and pertinent to observe that the rale laid down in the cases cited at the beginning of this opinion is based solely upon the idea that the plaintiff in an action of trover, who obtains possession of the property in dispute by giving the requisite bond and security, will not be permitted. to unjustly deprive the defendant of his right to enter judgment on the bond, which might result if the plaintiff were allowed to capriciously dismiss his action. *15The reason of -that, rule does not apply even remotely to the case in hand, the facts of which show conclusively that the plaintiffs, in dismissing their action, had no. intention, to defeat any right of the defendant, and were" actuated by no improper motive, but -that their real purpose was perfectly legitimate, was disclosed and explained to defendant’s counsel, and was fully understood by and acquiesced in by the latter. Judgment reversed.