| Ala. | Dec 15, 1883
— It may be that, if there Was a former action pending between the plaintiff and Halstead, under whom the defendant derives title to the lands, involving the question of title, or the right to possession for a term not yet expired, which was submitted to arbitration, and, in pursuance of the submission, an award was rendered determining the question against the plaintiff, the award would bar the plaintiff from a recovery in the present action. An award, though it can not have the operation and effect of a conveyance of lands, is evidence of title, upon which ejectment,^ or the corresponding statutory real ac
2. A motion to dismiss a suit is, ordinaril}', founded upon matter of record, apparent upon the face of the proceedings, because of some imperfection, gap or chasm, caused by the act or neglect of the plaintiff, or because of his disobedience to orders of the court: unless, perhaps, it is founded upon a release given, or an agreement to dismiss made pending suit. It can not be founded on matters extrinsic to the record; nor can it be made to serve the purpose of a plea in bar; nor can it devolve upon the court the determination summarily of the merits of the case. — Allen v. Lewis, at present term. P. 379.
3. It is true, the plaintiff admitted the facts upon which the motion to dismiss was founded ; but that admission can not be construed into a waiver of a trial by jury, nor into an agreement to substitute the court as the trier of the facts. Nor was there an admission that the award was unimpeachable ; and it is open to impeachment, whether it is specially pleaded, or only given in evidence to conclude the plaintiff. Upon this motion, the court ought not to have determined the merits of the case, but ought to have remitted the parties for trial to a jury.
Reversed and remanded.