Bray v. English

| Conn. | Jun 15, 1816

Swift, Ch. J.

The agreement respecting the time of meeting for a hearing by the referees, was no part of the submission, and, as such, cannot be noticed by the court ; but if it was made use of to practice a fraud, and while the plaintiffs relied upon it, the defendants, in violation of it, procured the referees to notify a meeting, when the plaintiffs were absent, or under such circumstances that they could not have a fair trial, it might then be considered as a ground for setting aside the award. But in this case, it appears that actual notice was given to the plaintiffs ; and it was in their power to have attended, and for any proper cause moved the referees to postpone the hearing. Instead of this, they only sent a message that they could not, and should not, attend ; and that it would be useless to proceed to a hearing, if they sustained any damage or inconvenience, it is not imputable to the defendants, but to their own neglect in not making a proper application to the referees.

When a submission is made by rule of court, it is irrevocable ; for the object is to place the parties in a situation that either may compel the other to make a final settlement of the dispute. If no provision is made to the contrary, it is incidental to the power of referees or arbitrators to appoint the time and place of trial, and to proceed therein according to their discretion. They may adjourn from time to time, as the case may require. It is the duty of the parties to appear before them, and proceed to trial; and if either should refuse, it then results from the nature of the submission, that the referees may proceed to an ex parte hearing ; for otherwise either party might defeat the trial, and indirectly revoke the submission. In cases where the plaintiff only claims damages, if the defendant should refuse to appear, the referees might examine the witnesses for the plaintiff, and ascertain and award the sum due. If the plaintiff refuses to appear, there need be no enquiry ; for on failure of proof, the referees must award in favour of the defendant. But if there are mutual claims, they may make proper enquiries to ascertain the claims, and award accordingly. In this way, the parties may be compelled to a final settlement of the controversy submitted. It is true, where a plaintiff is before a court of law, he can withdraw his suit at pleasure, and commence a new action ; but by his submission by rule of court, he has waived this privilege, and has given an irrevocable power to the referees to decide the question. Such construction ought to be given to the statute as will enable courts to carry into effect this voluntary agreement of the parties. By giving the referees the power of an ex parte hearing, they are enabled to compel the parties to proceed to a final hearing ; but if no such power is given, then the parties may indirectly revoke the submission, or some other measure must be taken by the court before whom the submission is made to compel the parties to proceed. This can be done only by process of contempt ; a process never adopted in this state, and which would be much less effectual and convenient than to give the referees the power to proceed ex parte. If the court should order a nonsuit when the plaintiff refused to proceed, then he might bring another action ; the controversy would not be settled ; and the submission would not be irrevocable.

In order, then, to give full effect to the statute authorising submissions by rule of court, it is to be construed to give the arbitrators the power to proceed to an ex parte hearing and trial, in all cases where either party refuses to appear upon due notice being given ; and there can be no more impropriety in subjecting the plaintiff upon an ex parte trial before arbitrators, that there is a defendant upon default of appearance in court.

I am of opinion that the judgment of the superior court it erroneous, and that it be reversed.

In this opinion the other Judges concurred.

Judgment reversed.