Summy v. Hiestand, No. 1

No. 1 | Pa. | May 2, 1870

The opinion of the court was delivered, May 12th 1870, by

Sharswood, J.

'That there was an action pending in the court below and that the agreement of reference was confined to the matters in variance in that suit does not leave it open to contention, that it must be considered as having been made under the sixth section of the Act of June 16th 1836 (Pamph. L. 717) This section was a mere re-enactment of the Act of 1705, in the construction of which, as well as of the present law, it has been uniformly held that no express agreement that it shall be made a rule of court is necessary. A reference to the pending action is sufficient: McAdam’s Executors v. Stillwell, 1 Harris 90; Buckman v. Davis, 4 Casey 24; Painter v. Kistler, 9 P. F. Smith 331. It would be a strained interpretation of a submission by the parties themselves evidently without the assistance of their counsel, to hold that the clause providing that the suit “ should proceed no further in course of law,” meant that the action should be discontinued, and thus be taken entirely out of court. Nothing is said as to the costs already incurred, and without the payment of them the suit could not be discontinued. The case bears no resemblance to Brendlinger v. Yeagley, 3 P. F. Smith 464, for there besides an agreement “ to stop all further proceedings at law,” the submission was not confined to matters in variance in the cause, but embraced “all former transactions between the parties.” Neither has Benjamin v. Benjamin, 5 W. & S. 562, any applicability, for that was an award under the first section of the Act of 1836 of a controversy for which no action was pending. In Wall’s Administrators v. Fife, 1 Wright 394, there was an agreement to enter an amicable action and to refer at the same time, and the judgment entered on the award pursuant to the agreement was sustained without compliance with the provisions of the first and second sections of the Act of 1836. That was said not to be referable to any statute in terms, but that it was competent to the parties to settle their differences in their own way.

The award in this case was therefore a sufficient foundation for a judgment, but no' doubt it required the approval of the court, which was formally given, when the rule to show cause why the award should not be approved and entered as a judgment was made absolute. That was a final judgment for the amount found by the arbitrators, and should have been so entered by the prothonotary on the judgment docket. His neglect or omission to do so may perhaps endanger th'e lien of it as to third persons: Bear v. Patterson, 3 W. & S. 236; but as between the parties there is a valid final judgment of record: Montelius v. Montelius, 5 Penna. Law Journal 88. The prior entry upon the index of the award before approval was a mere clerical error — a nullity — and no doubt the court, if applied to by the defendant, would have ordered it to be stricken off.

Judgment affirmed.