dissenting.
Whatever of difference there is between the members of the court upon the questions of law in this ease arises from .a. disagreement as to the legal effect, of the judgment which was Sought to he set aside in the court- below. The majority -of the court consider that judgment as being in effect a mere dismissal or discontinuance of their action by the plaintiffs; whereas the- writer is of the opinion that, under the facts stated, the act of the plaintiffs amounted to a retraxit, -and that the dismissal in open court of their suit, because of the fact that they did not believe that the same would be fruitful if prosecuted to- a conclusion, was an open, public, and voluntary renunciation by ’the plaintiffs of their suit, and as well of their cause of action. The legal effect of a retraxit, 'after judgment of dismissal -entered in consequence thereof, is to extinguish the plaintiffs’ cause of action; the legal effect of a mere dismissal or discontinuance of a suit by the plaintiffs is to leave the cause of action still alive, and it operates only to dispose of 'the pending suit with a privilege- to' the plaintiffs to renew their suit thereafter upon the payment of costs. Civil Code, §§5042-5043. That the action of the plaintiffs amounted to- a re’traxit within the. meaning of the provisions of the code is evident from a statement of the facts preceding the- rendition of the judgment, as they state them in their application to reinstate the dismissed suit. The plaintiffs s-ued out a bail-troVer proceeding to recover a certain mule; the de*16fendant failing- /to give bond for the forthcoming of the property to answer the judgment, the plaintiffs, under the provisions of onr code., executed a bond and took possession of the property. Pending the action the mule which Was the subject of the controversy died, and when the case came on for 'trial, the/ plaintiffs voluntarily, and in open court, dismissed their action, assigning as a reason therefor that they could not hop© that the action would in future prove fruitful, and, therefor©, they dismissed it. That they intended this as a final abandonment of the pending suit, and as well a. renunciaition of their cause of action, is conceded in the opinion of the majority, and it is therefore unnecessary to cite the evidente further upon that point; for Mr. Justice Lumpkin, speaking for the court, says: “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 be ■the legal effect of the dismissal.” And further in his opinion he says: “It cannot, we think, be doubted tbat 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.” These references to. the opinion of the majority are made for the purpose merely of showing that in the minds of the plaintiffs, at the time the suit was dismissed, there was a fixed determination not to prosecute, their action, and, according to section 504-2 of the Civil Code, their right of action was thereupon gone forever. When the dismissal upon these considerations occurred, it was a judgment upon the merits- as conclusive upon the plaintiffs as would have been a judgment of dismissal upon a general demurrer filed to- their declaration as for the want of a cause: of action. It was as conclusive upon the plaintiffs as would have been a. judgment in their favor entered upon a confession of the cause of action made by the defendant. It was a judgment which disposed of *17the entire matter of controversy between the parties, and such a judgment as the Court would neither have had the power nor discretion to set aside, except for error committed in its rendition, or for such reason 'as would have authorized a court of equity to furnish relief in faVor of the plaintiffs.. If all the facts stated in the plaintiffs’ application for the reinstatement be admitted as true, 'then no reason appears why they should prosecute; their action at this time that did not appear and was controlling and operative at the time they dismissed their suit.
It is submitted that the majority of the court, in its opinion, anticipates the force of the alleged estoppel which is sought to be set up as against the. defendant in this case. If in consequence of any fraud, legal or moral, practiced upon the plaintiffs by the defendant 'they have been induced to dismiss their action, and ¡thus have exposed themselves to a liability to the defendant upon the replevy bond givear by the plaintiffs, that estoppel should have been urged and could have been made effective only in reply to the application of the defendant for a judgment of restitution upon the bond.. If the plaintiffs dismissed the case’ because their action, if affirmatively prosecuted, could mot have been fruitful, the alleged conduct of the defendant in acquiescing in. the dismissal would not have had the effect, upon the reinstatement of the suit, to have rendered that fruitful which theretofore was confessedly fruitless. Tor this reason the Conduct of the defendant could not be urged as a reason for the reinstatement of the case. As has been stated before, if the conduct of the defendant were such as to raise an estoppel in favor of the plaintiffs as against the defendant’s right to a judgment of restitution, that estoppel should have been set up, not in aid of a motion to' reinstate a suit which had been voluntarily dismissed upon an open and public renunciation of the cause of action upon which it was based, but to< defeat the right in favor of the defendant which grew out of the judgment of dismissal.
*18The writer of this cannot bring his mind 'to agree to the proposition that the facte stated make such a case of fraud as would authorize the court to set aside the judgment coinplained of, upon equitable principles such -as are invoked. It is respectfully submitted that section 3979 of the Civil Oode (it being the section, upon which the majority supports the argument that the court was justified in granting relief against the consequence of an alleged mutual mistake of law) has no application to the facts of the present case. That section provides as follows: “An honest mistake of the law as to the -effect of an instrument on the part of both contracting parties, when such mistake operates as a gross injustice to one-, and gives an unoonscienitious advantage to the -other, may be relieved in equity.” This is the rule with respect to- contracts; but it is submitted that where contracts have been reduced to- judgment, -another rule of law applies, 'and this is to be found in sections 3987 and 5370 of the Civil Code. Section 3987 provides, “The judgment of a co-unt of competent jurisdiction may be set aside by a decree, for fraud, accident, or mistake, o-r the acts of the adverse party unmixed with the negligence or fault of tixei petitioner.” Section 5370 of the Civil Oode provides,' “The judgment o-f a court of competent jurisdiction may be set aside by a decree in chancery, for fraud, accident, o-r mistake, or the acts of tine adverse party unmixed with the negligence or fault of the complainant.” The judgment of dismissal in this case ntot only disposed of the plaintiffs’ suit, huit extinguished ‘their cause- of action. It was rendered by a court of competent, jurisdiction, and the writer is unable to- find in 'the- facts of the present case any such circumstances as would authorize a court of equity to grant relief against the judgment. The -counsel for the defendant and for the plaintiffs dealt with each other at arm’s length. There were no mutual confidences! between, them. Ho- representation 'appears to have been made by the defendant’s counsel to induce the plaintiffs’ counsel to *19■dismiss his action. The plaintiffs’ counsel may have been .laboring under an honest mistake, blit that mistake was not induced by any act of the adverse party. 'If the mistake • existed, it was a mistake which resulted from ign'oranoe of the law. It was a mistake which may be attributable to the negligence of the plaintiffs’ counsel in omitting to inform himself as to the legal effect of the step he was about ■to take iu bis client’s interest. The defendant’s counsel owed him no duly in the premises, and was under no obli- . gaition to point out -to him, even if he had himself known •to the contrary, the error into which the plaintiffs’ counsel ■was about to' fall. 'Counsel learned in the law are mot supposed to look to their adversaries for advice touching the legal rights of -their clients, and the writer has yet to see a case in which the courts have granted relief against the con- . sequences of the ignorance of counsel where the adverse party has done nothing to- induce the complainant to- act to-his own prejudice.
The reinstatement of the case, even if allowed, could :no-t have revived the plaintiffs’ dead cause of action. It would, therefore, have beeu useless to- have reinstated it. ' The judgment was- fairly rendered. The court- had no- arbitrary power to- set it aside; and no reason appearing which would have authorized it to- he set aside, he had no dis-cretion in the premises.
The legal effect of the reversal of the judgment refusing to reinstate the case- is to- deny to the defendant the benefit of the salutary rule of law which 'entitles him to restitution .as against a plaintiff who- institutes and prosecutes uns-uc- ■ cessfully a. badl-trov-er proceeding. Such a proceeding is one of the harshest known to tibie law. ■ The defendant nfay be 'deprived of Ms property by la summary proceeding, but ■the law reserves to Mm the right to restitution if the plaintiff should fail in his action. Such was the present case, and this court- should not deny to him the right which the [law has established iu Ms favor.
*20Upon 'these considerations, the judgment 'of the court below should be affirmed.