1 Mich. 463 | Mich. | 1850
By the court,
The error assigned in the circuit court was founded on the decision of the county court, denying the
From the view I have taken of this case, it becomes unnecessary to determine whether the decision of the county court, and the affirmance of that decision by the circuit court, upon the motion to quash the twit of attachment, was right or wrong: that question, in my opinion is not properly before us for adjudication.
Issue having been joined, the parties thought proper to refer the subject matter of the suit to arbitrators. A written stipulation to that effect was entered into between them, and was duly acknowledged before a. proper officer.
What was the legal effect of this act of the parties ? It was clearly to withdraw the suit from a tribunal constituted by law, and refer the matter in controversy to the determination of a domestic tribunal of their own creation. Our statute has authorized parties to submit any controversy which might be the subject of an action at law or suit in equity (with few exceptions), to the decision of arbitrators; and when thus submitted under the regulations provivedby the statute, judgment may be summarily entered on awards. If a controversy exists between persons, either is at liberty to appeal to the tribunals established by law for its determination, or, both consenting, its adjustment may be referred to judges of their own selection.
In the case before us, the defendant in error, Mrs. Dean, resorted to the county court for the recovery of a sum of money which she claimed was honestly due her from the plaintiff in error, who controverted this claim. The issue having been made lip, the parties thought proper to avail themselves of the provisions of our statute, and agreed to submit the controvesy between them to the determination of three arbitrators. By this act the forum in which the cause was to be heard and determined, was changed: thenceforth, by the implied assent of the parties, it was no longer pending in the county court. Ho proceeding on the part of the court was asked for, or required to give validity to the act of the parties. The agreement to submit a cause pending in court to arbitrators, operates as a discontinuance of the cause in court, as effectually as if a rule to that effect had been entered under the sanction of the court; and this results from an Implied understanding that, having made choice of another tribunal provided by law in which to litigate
In the ease of Wells v. Lain, 15 Wendell 99, Chancellor Walworth admits, that “ a general agreement to. submit to arbitration operates as a discontinuance, from the implied understanding of the par-ties tha the suit is to be no further prosecuted.” He was of opinion, however, that “ a valid submission might be made, leaving the suit in full life provided it appears from the agreement itself that such was the intention of the parties.” No case is cited, and none, it is believed, can be found in support of this pfopositiotr. It was repudiated by the court of errors, as will be seen by reference to the opinion of other members of the court-in the same cause. Senator Tracy, in delivering his opinion, uses this language: “ Here was an agreement between the parties to arbitrate the subject matter of the suit.” “It is not doubted that a parol submission in ordinary cases is valid, nor that a valid submission discontinues the suit.” Again: “ A- reference under the statute is strictly a proceeding in the suit;” “ but a submission to arbitration is not merely an agreement to discontinue, but is, eo acto, a discontinuance which requires no subsequent interposition of the court to give it effect.” The language of Senator Maison is equally clear: “ These parties, then, having- a right to submit this matter to arbitration, and having agreed to do so, the suit is discontinued.” The same doctrine is maintained by Senator Edwards.
The case of Larkin v. Robbins, 2 Wendell 505, is also in point Mr. Justice Marey, in that case, held, that “ the submission of a cause to arbitration, the arbitrators never taking or consenting to take upon themselves the burden of the' submission, operates as a discontinuance of a suit pending in court.” See, also, opinion of Parker, Ch. J., 17 Mass. 603; 1 Wendell 314, 516; 6 Cowen 399.
Applying the principle I have been endeavoring to establish to the case before us, I think enough appears on the record to support the judgment of the circuit and county court. The statute in relation to arbitrations appears to have been literally complied with: 1, there was a written submission; 2, that submission was duly acknowledged by
It was argued, that, as by the agreement of the parties to refer the cause to arbitration, the award to be made' was to have “ the' effect of a verdict, and' that judgment might be rendered on said áwar-d ás upon a verdict,” the obvious intention of the parties was to retain the cause in court, and that the ¡rlaintiff in error is therefore, permitted tó assign errors upon any part of the record. Admitting that the views of Chancellor Walworth are right, ás expressed in the case of Wells v. Lain, I am clearly of the opinion that this part of the agreement would, of itself, operate as a waiver of all errors up to the date óf the submission. It would seem inconsistent with good faith, that the defendant bel'ow should be permitted to allege irregularities in the proceedings in the cause, after he had consented to refer the cause to arbitratióh, and authorized the court to render judgment in case the award should be against him. I think such an act would operate as a waiver of all' errors, and that the defendant is estopped from alleging any that may have crept into the proceedings previous to the date of the submission.
It was also intimated, that the agreement to' arbitrate was not within the statute, inasmuch as the award was t‘o be considered in the light of a verdict. We have had occasion to determine, at the present term, that unless a submission is within the- statute, the summary mode of enforcing an award by a judgment would be unauthorized. I cannot, however, regard this part of the stipulation as impairing the authority of the county court to enter judgment on the award. -Under our statute;
It follows, that the judgment of the circuit court must be affirmed.
Judgment affirmed,.
