Bowen v. Lazalere

• Decision Date: 31 August 1869
• Citation: 44 Mo. 383
• Parties: JOHN T. BOWEN, Plaintiff in Error, v. ALICE LAZALERE et al., Defendants in Error.
• Court: Missouri Supreme Court

44 Mo. 383

JOHN T. BOWEN, Plaintiff in Error,

v.ALICE LAZALERE et al., Defendants in Error.

Supreme Court of Missouri.

August Term, 1869.

Error to Fifth District Court.

S. A. Richardson, and Hall & Oliver, for plaintiff in error.

Vories and McFerran, for defendants in error.

I. The submission in writing to arbitration operated as a discontinuance of the cause; and the District Court did not err in reversing the judgment of the court below. (West v. Stanley, 1 Hill. 69; 4 Barb. 541; 4 Cow. 547; Larkin v. Robbins, 2 Wend. 505; Blunt v. Whitney, 3 Saund. 4.)

II. The bill of exceptions, signed by the bystanders and supported by affidavits, together with the sworn copies of the papers directed in said bill of exceptions to be copied therein, should be taken and considered as a part of the record in the cause. (Wallace v. Bolton, 10 Mo. 660; Dougherty v. Whitehead, 31 Mo. 255; Gen. Stat. 675; Hill. on New Trials, 21, § 10; 29 Mo. 447.)

III. The court below usurped the province of the jury by instruction No. 2 in the record, given to the jury at the instance of the plaintiff in error. (Benton v. Klein, 42 Mo. 97; Claflin v. Rosenberg, 42 Mo. 439; Singleton v. Pacific R.R. Co., 41 Mo. 465; McGovern et al. v. Craig et al., 39 Mo. 156.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff brought suit in the Daviess County Court of Common Pleas against the defendants, upon a promissory note for about $500. Defendants admitted the execution of the note, but said it was procured by fraud. The plaintiff, in reply, denied all the facts charged as constituting the fraud. Afterward the defendants filed a supplemental answer recapitulating the former answer, with the addition of a new defense--that the matter in dispute had been submitted to arbitrators, who had made their award. The record shows that the defendants at the same time filed the submission and award and a motion to confirm the award.

The court, upon motion of plaintiff, struck from the file the motion to confirm, for want of notice, whereupon the defendants withdrew the submission and all the papers connected with it. No reply to the supplemental answer is filed, and no further allusion is made to the matter during the trial. This seems to be the same award brought before the court at the present term in the case of Shores and Wife v. Bowen.

The cause proceeded to trial upon the allegation of fraud in procuring the note, and the verdict and judgment were for the plaintiff for its full amount, which judgment was reversed in the District Court. After the trial the defendants presented a bill of exceptions, which the judge refused to sign, certifying as his reason that it was untrue. It was then signed by three bystanders, but the judge refused to permit it to be filed in court for the same reason. Afterward, and within five days of the trial, the defendants took and deposited with the clerk four affidavits sustaining the bill of exceptions, which are annexed to and certified up as part of the record--the original bill of exceptions so sustained having been brought up by them and filed in the District Court--and come here with the rest of the record.

Counsel for the plaintiff seem to criticize this mode of bringing up the bill, but I do not see wherein it is not a compliance with the requirements of the statute. As this statutory mode of bringing up the facts of a case is unusual, and is liable to embarrass the appellate court by the necessity imposed upon it of deciding the truth of the bill, we take the opportunity of saying that it ought to be avoided if possible. To that end, the judge who presides at the trial would do well to state briefly wherein the bill is untrue, if he objects to it upon that ground, and to give the parties such assistance in making it up as his impartiality and his notes of the testimony eminently qualify and enable him to do. The law, however, does not require that he write the bill, or change one presented to him--only that he shall certify the cause of his refusal to sign it. A liberal construction of this requirement, we think, would make it his duty to point out in a general way, but with such particularity as to make it understood, in what the untruthfulness consists.

It is claimed by the plaintiff that the defendants, by withdrawing their motion to confirm the award, abandoned that portion of their answer. But it could not have that effect. The proceedings to obtain judgment upon the award form no part of this case, and should not have been mixed up with the record. When the parties agreed to submit the matter in controversy to arbitration, they thereby agreed that the suit be discontinued. Another tribunal was selected; and if the plaintiff did not voluntarily dismiss his case, the defendant could compel him to do so by motion setting up the submission, or by answer in the nature of a plea in abatement puis darrien. (Larkin v. Robbins, 2 Wend. 505; Ressequie v. Brownson, 4 Cow. 341.) The judgment sought upon the award had nothing to do with this case, and the withdrawal of the papers pertaining to it can not be construed as an abandonment of any portion of the answer. I do not know that I understand the views that prompted the action of counsel in the trial of the case. The allegation of submission and award was neither replied nor demurred to; and the parties went to trial upon that portion of the answer alleging fraud in the procurement of the note. They seem to have lost sight of the award altogether; the answer is upon the record with no reply; and we are unadvised whether the parties intended to retain or abandon it, or why no further allusion was made to it. We will, however, examine it and see what kind of defense it makes.

We have seen that a submission may be made to work a dismissal of the suit. It is not necessary that there be an award, for the consent to arbitrate is in itself a selection of another tribunal and an agreement to transfer the cause to that tribunal, which agreement the...