Id. at 405 (emphasis added). In Howie v. Baker, 232 Miss. 661, 100 So.2d 1131 (1958), the case was dismissed with prejudice, on January 22, 1953. A motion to set aside the dismissal was sustained February 20, 1953. There is no mention that this was a different term of court; however, we held that "[t]he reinstatement at the same term of court of a dismissed cause must be left, in large measure, to the discretion of the court."
Ethridge v. Webb, 210 Miss. 729, 50 So.2d 603; Kimbrough v. Powell, 143 Miss. 498, 108 So. 498; Lewis v. Ladner, 177 Miss. 473, 168 So. 281; Ritter v. Whitesides, 179 Miss. 706, 176 So. 728; Scott v. Scott, 73 Miss. 575, 19 So. 589; Sylvester v. Stevens, 186 Miss. 503, 191 So. 483; Wilson v. Gray, 59 Miss. 525; Secs. 317, 328, Code 1942; Griffith, Outlines of Law, 81. II. Mrs. Livelar is estopped from asserting any claim. Brock v. Kelly, 208 Miss. 323, 44 So.2d 452; Howie v. Baker, 232 Miss. 661, 100 So.2d 113; Kelso v. Robinson, 172 Miss. 828, 161 So. 135; Quin v. Northside Baptist Church, 234 Miss. 51, 105 So.2d 151; 19 Am. Jur., Estoppel, Sec. 55. III. The Court below was correct in overruling appellant's motion to strike portions of appellees' answers and the Court was correct in admitting testimony by the Kepner appellees by which they controverted issues decided in a former separate maintenance suit between appellant and her husband, Frederick P. Livelar. Hayes v. First Joint Stock Land Bank, 174 Miss. 880, 165 So. 605; 30A Am. Jur., Judgments, Secs. 371, 400.
I. The action of the lower court in entering the decree of dismissal with prejudice without notice to appellant was a violation of the rules of our chancery courts and should have been set aside on proper application and notice to the opposite party. Anderson v. McInnis, 99 Miss. 823, 56 So. 170; Gordon v. Walston, 194 Miss. 760, 13 So.2d 627; Howie v. Baker, 232 Miss. 661, 100 So.2d 113; Knox County Council v. State, 217 Ind. 493, 29 N.E.2d 405; Ross v. Milner, 194 Miss. 497, 12 So.2d 917; Weathersby v. Pearl River Lumber Co. 88 Miss. 535, 41 So. 65; Wilson v. Town of Hansboro, 99 Miss. 252, 54 So. 845; Chap. 151, Laws 1924; Griffith's Mississippi Chancery Practice (2d ed.), Rules 38, 39, Sec. 624 pp. 673, 783, 791. W. Vol Jones, Sr. Jr., Waynesboro, for appellee, George Rainwater.
[a]s Mississippi Rice Growers Ass'n [v. Pigott, 191 So.2d 399 (Miss. 1966)], supra, and Howie [v. Baker, 232 Miss. 661, 100 So.2d 113 (1958)], supra, indicate, the general rule regarding dismissals is the same as default judgments โ the dismissed case cannot be reinstated after the expiration of the term of court within which the dismissal was entered unless the dismissal was defective, or fraud, mistake or accident was involved. See also, Carter v. Kimbrough, 122 Miss. 543, 84 So. 251 (1920); 27 C.J.S. Dismissal and Non-Suit ยง 79 (1959).
Brock v. Kelly, 208 Miss. 323, 44 So.2d 452 (1950). cf. Howie v. Baker, 232 Miss. 661, 100 So.2d 113 (1958). (250 Miss. at 611-12, 170 So.2d at 634-35)
This undisputed fact clearly resulted in appellants having an equitable lien on the house and a statutory lien pursuant to the provisions of Mississippi Code Annotated section 85-7-137 (1972). Howie v. Baker, 232 Miss. 661, 100 So.2d 113 (1958); Connolly v. McLeod, 212 Miss. 133, 52 So.2d 473 (1951); Brock v. Kelly, 208 Miss. 323, 44 So.2d 452 (1950); Kelso v. Robinson, 172 Miss. 828, 161 So. 135 (1935); Chears Floor Screen Co. v. Gidden, et al., 159 Miss. 288, 131 So. 426 (1930). In Weathersby v. Sleeper, 42 Miss. 732 (1869), it was said:
"A judgment by default may be set aside during the term in which it was rendered, at the request of either party thereto, without notice to the party in whose favor it is rendered, and we cannot say that the court below erred in holding that the defendant's attorneys were not negligent in failing to file his plea when due." In the case of Howie v. Baker, 232 Miss. 661, 665, 100 So.2d 113, 115 (1958), this Court pointed out that: "The reinstatement at the same term of court of a dismissed cause must be left, in large measure, to the discretion of the court.
Brock v. Kelly, 208 Miss. 323, 44 So.2d 452 (1950). cf. Howie v. Baker, 232 Miss. 661, 100 So.2d 113 (1958). (Hn 6) Harvey Collier affirmatively misled Oscar King into believing that if he purchased the property from H.P. King he would get a good title.
In a quiet-title action where it appeared that the defendant stood by and watched the plaintiff erect improvements to the land in question, knowing that the plaintiff was acting under the assumption that he had title, the court held that the defendant's acquiescence would work as an estoppel against him. Thompson v. Page, 255 Ala. 29, 49 So.2d 910. In the case of Howie v. Baker, 232 Miss. 661, 100 So.2d 113, the Supreme Court of Mississippi held that one may not stand by and see improvements made under circumstances which call for protest and then, afterwards, assert title against the person making the improvements. The plaintiff Monica Brandhagen could have entered into a legal agreement with the defendant for the erection of his building, using the plaintiffs' east wall as a party wall. Acquiescence of one owner in the use of his property as a party wall by an adjoining owner may estop him to deny that the wall is a party wall. 69 C.J.S. Party Walls ยง 8, p. 7.
" This Court also, in Kelso, et al. v. Robinson, 172 Miss. 828, 161 So. 135, stated the equitable rule applicable here as follows: "* * * if a person knowingly suffers another to expend money on land under an erroneous opinion of title, although he does it passively by looking on without making known his claim, he shall not afterwards be permitted to enforce his legal right against such other." The same principles were announced in the recent case of Howie, et al. v. Baker, 232 Miss. 661, 100 So.2d 113. The foregoing principles, under the facts of this case, as found by the chancellor, require a dismissal of the original and amended bills in this cause. Affirmed.