Dolph v. Clemens, 4 Wis. 181

4 Wis. 181 | Wis. | 1856

By the Court,

Cole, J.

We are not able to understand upon what ground the Circuit Court proceeded, in rendering the de cree in this cause. For if the hypothesis be adopted that the submission of the suits pending on appeal to arbitrators, did not operate as a discontinuance of them, or did not in any way affect the judgments of the justice; that those judgments at the time the transcripts were filed, were good.and valid judgments, and the sales made under them, legal and proper, we cannot then see why Clemens should not have his sheriff’s deed upon the ■expiration of the time given by statute for Dolph to redeem. • In this view of the case, when the deed became due, why should the court interfere and force Clemens to take the amount due upon the sheriff’s certificates?

But if, on the other hand, it is held that by-this submission of the suits to arbitrators, eo ado, they were discontinued ; and the judgments of the justice, as well as all other matters embraced in the award, and .the sales made under these judgments by the sheriff, null and void; then what principle of law or equity applicable to the case, requires that Bolph’s rights should be prejudiced by these sales, thus illegally made, or why should he pay any more than the award in consequence of these proceedings ? If Clemens has undertaken to sell property under judgments that were no judgments, he should abide by .the legal-consequences of his own acts.

Upon examination of the proofs in this case, it will appear beyond all doubt, that there was a submission of the suits pending an appeal in the Circuit Court, to arbitrators; and we think there is as little room to doubt that a good and valid award was made by the arbitrators, according to the bond of submission. What, then, was the effect of this submission upon the suits pending in court? It necessarily operated as a discontinuance of them. Camp and another, Adm'r &c. of Clark vs. Root, 18 J. R. 22; Ex parte Wright, 6 Cowen, 399; The People ex rel. Van Corllandt vs. Onondaga, C. P. 1 Wend. 314; Miller vs. Van Auken, id. 516; Larkins vs. Rabbins, 2 id. 505; Toon vs. Wilcox, 12 id. 503; West vs. Stanley, 1 Hill, 69; Smith vs. Barse, 2 Hill, 387 Wells vs. Lain, 15 Wend. 99; Muckey vs. Pierce, 3 Wis. R. 307.

And we likewise think that the submission removed all the proceedings before the justice to another tribunal, and that those matters became merged in the award. At all events, if there could be any question as to whether the original judgments before the justice remained in full force after the discontinuance of the appeals therefrom by submission — as is intimated in the case of Miller vs. Van Anteen (1 Wend. 516) — there can be none after we examine the condition of the bond of submission in this case. The submission is as comprehensive as language can make it. It includes “ all manner of action and actions, cause or causes of action, suits, bills, bonds, specialties, judgments, executions, quarrels, controversies, trespasses, damages, and all claims and demands of whatever name or nature at any time heretofore had, moved, made, brought, commenced, sued, prosecuted, done, suffered, committed, or depending by and between tbe parties. It was competent for the parties, if they saw fit, to refer the question whether or not the judgments, were erroneous, void, or had been fraudulently obtained, to the arbitrators, and we see no objection to this proceeding. Watson on Arb. & Award, 59; Roberts vs. Marriott, 2 Saund. 190.

The judgments submitted here were ones to which appeals .had been interposed; and it appears from the face of the award that the subject matter of these suits pending án appeal, was examined into by the arbitrators. That being the case, we think the parties should abide by the decision of the tribunal to which they have chosen to refer all their differences.

It follows, then, the suits having been discontinued, that there were no cases pending in the Circuit Court to be dismissed. The cases were already out of court, and as a matter of course, it had no jurisdiction of them.

The counsel for the defendant, Clemens, is compelled to admit that as a general proposition, the submission of a cause to arbitrators amounts to a discontinuance of the suit; but he insists ■that it is competent for the parties by common consent, to waive the submission and award, re-instate the cause in court, and proceed to judgment, citing 1 Wend. 314; 2 Hill, 389. In the former case the party who might have -insisted upon the discontinuance, -waived it by appearing at the trial of the cause and defending the same upon the merits. He raised the question of discontinuance after verdict, but the court decided that he had waived it. Bronson, J., in Smith vs. Barre (2 Hill, 389), makes the following observation upon this case: “ The suit was at an end, unless the parties had afterwards waived the discontinuance by going on with the action by common consent.”

In the case under consideration, does it .appear, as asserted, that the parties mutually abandoned the submission and award, and went into court for the settlement of their differences? We think not. The testimony shows that there was considerable wrangling before the arbitrators, that Dolph was dissatisfied with the award, and repeatedly said he would hot pay it. But notwithstanding the quarreling, before the arbitrators, they made their award, and a copy of it was left by Clemens.at Dolph’s house. As far as acts are concerned, this was an end of the matter until the transcripts of the justice’s judgments were filed, about a year and a half afterwards. We have not overlooked the action of the Circuit Court, in dismissing the appeals in March, 1850, upon the motion of Clemens’ attorney. But Dolph never appeared in court, never agreed to a re-instatement of the cause, or that he would proceed with it as though it had not been discontinued. His declarations that he would not pay the award, that it was outrageous, and all that, did not affect the rights of either party. He might have been sued upon the award, or bond of submission, and made to pay.

Objections are taken to the award, that witnesses were not sworn, or competent evidence of any kind introduced, or facts agreed upon. It does not appear upon what evidence the arbitrators based their award. We presume they proceeded regularly and properly, and received all the testimony that was offered. The parties were present, and if there was any error of the arbitrators they should show it. We are not to presume error in their action. Courts make every reasonable intendment in favor of awards, and will support them if possible. Watson on Arb. and Aw. 176 ; Kyd, id. ; Rolle Arb. (K.) (M.) (N.) 12 Wend. 159; 19 id. 285.

Again; it is said the award was not made in time, and therefore was not binding. We do not think that is established by proof. The award does not bear date. The arbitrator, Collins, thinks in one place that it was made shortly after the submission, which was January 2, 1850; and in another place that it was made the last of March or first of April. When first examined he did not know whether the submission was in writing or not. The recollection of this witness, as well as that of the other arbi-. trator, is quite too indistinct to guide us to a safe conclusion as to what was done, and particularly as to the time the award was made. They undoubtedly testified the best of their recollection, but the whole transaction had faded very much from their memory.

The only remaining point to be noticed, is that, admitting there was a proper and legal arbitration,- and a valid award founded upon competent evidence, yet that the complainant Dolph had a full and adequate remedy at law, and a court of equity, therefore, ought not to interfere to grant him relief. We do not, however, think that Dolph could have had full relief upon a motion made in due time in tbe Circuit Court. He might, perhaps, by such motion, have set aside the judgments in the Circuit Court for costs, upon the ground of irregularity ; but how would that motion have affected the judgments in the justice’s court? Would they have been set aside, by a motion in the Circuit Court ? It will be recollected that transcripts of those judgments were not filed until 28th July, 1851, and September, 1851, a year and a half, or thereabouts, after the rendition of judgment for costs on the dismissal of the appeals. And for that matter, Clemens might have never filed transcripts of them if he had found personal property to satisfy them. We, therefore, do not think that the complainant might have obtained full relief by a motion in the Circuit Court.

Under all the circumstances of the ease we think it equitable and just that the parties be decreed to stand by and abide the award made by the arbitrators. We might, perhaps, have been disposed to have granted the complainant full relief, so far as this suit was concerned, without his paying the amount due by the award, leaving the defendant to his own action at law, had the complainant insisted upon it, but he has not. He prays for relief upon paying the amount before tendered as due upon the award. Tbe decree, therefore, will be that upon the complainant’s paying Clemens the amount awarded him, and interest on that sum up to the time the tender was made, and the costs according to the award ; that the parties execute mutual releases, and the sheriff’s certificates be delivered up and canceled, and that the complainant recover costs upon this appeal.