11 How. Pr. 355 | N.Y. Sup. Ct. | 1854
The general doctrine, that a mere submission to arbitration of an action depending in court, without any provision that judgment may be entered on the award, is a discontinuance of the action, is well settled. (Ressequie agt. Brownson, 4 Barb. 541, and cases there cited.) The ground upon which the doctrine'rests is, that the parties have selected another tribunal—one of their own creation, to settle the controversy. (Same cases.)
It is conceded by the counsel on this motion, on both sides, that the submission between the parties, referred to in the papers, was a discontinuance of the appeal therein mentioned; and that is undoubtedly correct. But the defendant’s counsel insists that it was also a discontinuance of all legal proceedings between the parties from the commencement, and operated to set aside the judgment. On the part of the plaintiff it is contended that the appeal only was discontinued. The submission .consists of an agreement of submission, and also of mutual bonds of submission. The agreement recites that “ a controversy is now existing and pending in the supreme court,” &c., in relation to slander, which' action has once been tried, and a verdict and judgment rendered therein in favor of the plaintiff; that
In Van Slyke agt. Lattice, (6 Hill, 610,) after an appeal to the common pleas had been taken from a judgment in a justice’s court, the parties submitted “ the matters at issue between them in the suit pending in the common pleas ” to arbitrators; and it was agreed between fhem as follows : “ all future proceedings in said suit at law are to be hereby stayed and ended, and the award or determination of the said arbitrators in the said matter is to be final.” The arbitrators did not agree upon an award—an action was brought in the common pleas upon the judgment before the justice, and the submission "was set up as a bar; but the plaintiff recovered, and the defendant brought a writ of error. The court say, at the conclusion of the opinion
In the present case it is as clear, from the' submission, that it was intended the proceedings in the action, including the judgment as well as the appeal, should be ended, as if the parties had said so in express terms. The legal proceedings from the first were to be blotted out. Another tribunal was selected for the entire controversy. The doctrine that a submission works a discontinuance of an action, does not depend upon an express agreement that the action shall cease: such an agreement is implied in all cases, from the selection of another mode of adjustment and settlement of the litigation.
The Bonds of submission in this case express that the action is submitted. Under the general doctrine referred to, the action is discontinued. The action embraces all the legal proceedings. An appeal is but a step taken in the action. (Brockway agt. Jewett, 16 Barb. 593, and the cases there cited.)
There is an apparent injustice in allowing the defendant thus
The question considered having been discussed on the argument, and subsequently examined by me, I have thought proper to express my views in relation to it, although I have come to the conclusion upon another point, that the motion must be granted.
The sheriff cannot avail himself of the submission to arbitration, as an answer to proceedings to compel a return of the execution. The execution is not, by reason of the submission, void; it is only voidable; and the right to avoid it is personal to the defendant. His remedy" is by motion to set aside, or for a perpetual stay of proceedings on the execution. Upon such a motion, the plaintiff can present such facts as-he thinks proper and pertinent in resisting it; he was not called upon in this proceeding to anticipate, and be prepared to meet such an objection. In the present case, it is not suggested that any answer exists which has not been made; but the plaintiff is entitled to the application of the general rule of practice, which sends a party in such cases to an affirmative application. (Ontario Bank agt. Hallett, 8 Cow. 192; Orange County Bank agt. Dubois, 21 Wend. 351.)
The motion for an attachment is granted, with a stay of proceedings for ten days, to enable the defendant to prepare papers and give notice of a motion for relief, and obtain a further stay of proceedings with a view to a motion.