Callinan v. Port Huron & N.W. Ry. Co.
| Decision Date | 15 April 1886 |
| Citation | 61 Mich. 15,27 N.W. 718 |
| Parties | CALLINAN v. PORT HURON & N.W. RY. CO. |
| Court | Michigan Supreme Court |
Error to St. Clair.
W.M Cline, for plaintiff and appellant.
O'Brien J. Atkinson, for defendant.
In this case a jury was, without objection, sworn to try the cause on the merits; and, having heard the plaintiff's case, the defendant, under a notice in bar puis darrein continuance was allowed to show an agreement to arbitrate the matter in dispute, and enter judgment on the award when rendered, under which no steps were taken to complete an award. The court held that this put an end to the suit, and so the jury found. Plaintiff brings error.
There is, so far as we have discovered, no authority in favor of treating such a defense as one which can be introduced in bar upon a trial on the merits. The only case referred to which seems to favor such a practice is Wells v. Lane, 15 Wend. 99, where a defendant having put in a special plea in bar of a parol reference of matters in dispute, the plaintiff, instead of demurring, replied to it, and this was held to waive the objection to its form in bar instead of in abatement. The supreme court held it was a void agreement because in parol, and made no further inquiry into its effect if valid. In the court of errors a majority of the lay members, overruling the chancellor and the judges of the supreme court, held the submission valid, and that it operated as a discontinuance. But all agreed it could not be pleaded in bar. Under our practice a notice can be given, and cannot be demurred to, so that the issue must stand for its true purpose. But it was not a proper issue to be passed upon when the case is up on the general merits.
But the question will perhaps arise hereafter, and may as well be met, whether the agreement was in fact a discontinuance. It may be assumed to have been made by defendant's authority, although it is difficult to see how this question could be settled by the court on the facts. After providing for an award by the persons named, it concluded as follows "It is further agreed by and between the said parties that judgment in the suit aforesaid pending in the circuit court for St. Clair county, Michigan, may be entered upon such award for the amount allowed by the said arbitrators in favor of said Michael Callinan, together with the costs of the clerk of said court in said suit, to the end that all matters and controversies between them in that behalf may be settled and concluded."
How far an agreement to submit to arbitration operates to discontinue a pending suit, where there has been no award, is a disputed question on which there is more apparent than real contradiction. In this state it has been held on two occasions, (Dunn v. Sutliff, 1 Mich. 24; Vanderhoof v. Dean, Id. 463,) that a statutory arbitration providing for judgment on the award, and actually carried into judgment, operated on the suits which were displaced by the award, so that in one instance the sureties on appeal were discharged in a case appealed from a justice, while in the other case it was held that an alleged defect in the affidavit for attachment by which the suit was commenced could not be considered after the award made in pursuance of the submission. The question of the effect of a mere agreement to submit, not conforming to the statute, and not carried out, was not involved in either. But in considering the general question reference was made to New York and Massachusetts decisions which have some bearing on it.
In McGunn v. Hanlin, 29 Mich. 476, it was held that an agreement to arbitrate which did not conform to the statute, and which contained no covenant not to sue, could only be enforced by action, and was no bar to an action. It certainly seems difficult to discover how a mere executory contract can operate, ipso facto, upon a lawsuit pending or not pending. In his treatise on Arbitration, after giving the decisions on both sides, Mr. Morse makes the sensible suggestion that such an agreement should rather operate as ground for staying a suit pending the reference than as a discontinuance. Morse, Arb. 77.
It can hardly be claimed that the American courts, in dealing with this subject, have designed to make new rules of common law to affect common-law agreements. They do not profess to do so, and there would be no sense in attempting it. No doctrine has been found in the English courts, from which our rules are derived, which seems to favor the idea that such a submission is any more than a stay, and even that doctrine is greatly modified. Mr. Tidd, in his Practice, (page 822,) says it was formerly held to work a stay, but since the early part of Queen Anne's reign it has been the rule that it shall not operate as a stay unless so provided in the agreement; and he says it has been frequently decided that an agreement to refer to arbitration is not sufficient to oust any court of its jurisdiction. Even where a stay has been agreed upon, it is to be made the ground of an application to the court for a temporary stay. There is nothing favoring the idea of a discontinuance, or even of a stay, by the operation of the agreement itself without order.
The cases referred to in 1 Mich. are from New York and Massachusetts. Taking some detached dicta, there is possibly some support for holding an agreement like the present might be relied on for a discontinuance. But, taking the decisions themselves, with those on which they purport to be based they do not favor so broad a doctrine. The case of Bean v. Parker, 17 Mass....
To continue reading
Request your trial