Erie v. Tracy , 2 Grant 20 ( 1852 )

The opinion of the court was delivered October 7, 1852, by

Lewis, J.

— The compulsory arbitration law has place only in actions pending at the time the rule is entered, or the reference agreed upon; and an appeal, such as is contemplated by the statute, can exist in no other. But to give to the term “appeal,” as used in the agreement before us, a technical application to proceedings under that law, when the whole argument shows that the parties were not proceeding under the statute, and used the word in no such sense, would indeed be sticking in the bark. The provision to secure a trial by jury upon other terms than those required to secure an appeal under the statute, was in perfect harmony with the other parts of the agreement. The parties made no provision in their agreement, for the service of process, the payment of costs, entering into recognizance of bail, or making affidavit; and therefore the amicable action stands, and the parties are in court by virtue of their own agreement, without any of these preliminary steps. It is clear that the parties have not agreed that the award shall be final. On the contrary, their agreement is directly the reverse. Under these circumstances, to conclude them by the award, might produce gross injustice, and would certainly be a palpable violation of their contract. Although unskillful in putting their proceedings into form, they have expressed their purpose in language too plain to be misunderstood. And their object may be accomplished without any serious disrespect for the formalities of the law.

By the common law, either party may revoke a submission, even though contrary to his express agreement, at any time before the award is made; and there is no rule of law which prevents an extension of the time for revocation by mutual consent. This is all that was done in the present case. The right of revocation was extended for twenty days, upon the terms prescribed, and the terms were proper and appropriate to the object. The dissatisfied party was required to signify his intention, so that the other should have notice, and to file the agreement for an amicable action, in order that the controversy might be settled by due course of law.

The plaintiff in error has complied with these terms. The award therefore falls to the ground with the submission, and nothing remains but the amicable action. As the award was thus nullified, strictly speaking, there was no appeal upon which the order of the court quashing the appeal could operate; but as it is understood to be a final judgment, which arrests the further proceedings in the cause, it is reversed, and a procedendo awarded.

Judgment reversed, and procedendo awarded.

Mr. Justice Woodward dissented.