Dowd v. American Surety Co., 118 P. 198

Dowd v. American Surety Co.

118 P. 198 | Or. | 1911

Mr. Justice McBride

delivered the opinion of the court.

1. The demurrer to the defendant’s cross-complaint was properly sustained. Every legitimate defense therein urged had been set up in its answer in the law action and the cross-complaint set up no equity. It asks to be subrogated to any rights that the Pence Company have in the land, but does not allege that it has any such rights, and, in fact, contends that it has not acquired any.

2. The court erred in sustaining the demurrer to defendant’s answer. The submission being made in an action pending and being for the purpose of ascertaining a particular fact, namely, the amount of damages, the rights obtained under it could be no greater than stipulated in the agreement of submission. By that agreement the award was to be filed in the court, and the court was then to enter judgment upon it. When this judgment was entered the award was complete. The defendant *62had his remedy by execution only when the judgment was entered pursuant to the stipulation. Here it is alleged in the answer that no judgment was ever rendered. The intent and purpose of the submission went no further than to substitute the decision of the arbitrators for the verdict of the jury and to dispense with the calling of witnesses.

If we treat this as a submission in an action pending, then, before it can have the effect to create a liability against the plaintiff, there must be a judgment of the court in accordance with the stipulation. If, on the other hand, we treat it as a common-law arbitration, to have effect irrespective of any action of the court, then the jurisdiction of the court was ousted and the agreement effected a discontinuance of the action and released the surety from any .obligation on its undertaking given therein. 3 Cyc. 605, and cases there cited. The agreement by its terms required a judgment of the court before the award should become complete. These considerations render it unnecessary to discuss the other questions so ably argued by the respective counsel.

The judgment will be reversed and the cause remanded, with directions to overrule the demurrer to defendant’s answer. Reversed.