Jewell v. Blankenship
| Decision Date | 31 December 1837 |
| Parties | JEWELL AND MCKEE v. BLANKENSHIP. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
This was an action commenced in the circuit court of Wilson county. After the cause had been some time pending, it was submitted to arbitrators. No rule of court was made for that purpose. The defendants below pleaded puis darrein continuance; that the plaintiff below, and Jewell for himself and McKee by their bond, submitted the matter in dispute, then pending in court, to five disinterested neighbors. The plaintiff replied that the arbitrators had taken the case under consideration, and refused to decide it. To this replication defendants demurred. The court overruled the demurrer. The defendants then moved a discontinuance of the suit, which motion was also overruled. The plea shows that there was no time limited in which an award was to be made.
J. S. Yerger, for plaintiffs in error.
1. If a submission of a cause then pending be made by bond, and the proviso limits no time in which the award is to be made, the submission may be pleaded in bar of the further prosecution of the suit. Kyd, Awards, 96, 389; Id. 383, 387, 388; Watson, Arb. 147; Laws Pl. 493; 2 Esp. 504; 9 East, 497; 1 Chit. Pl. 651; 2 Id. 469;13 Wend. 293.
2. The submission to arbitrators is a discontinuance of the cause, and may be so relied on by the defendant's plea. It is a voluntary withdrawal of the suit from the jurisdiction of the court. 13 Wend. 293;1 Johns. 315;18 Id. 22.
3. Though McKee was not a party to the bond, yet he may plead the submission of his co-defendant as an agreement in bar of the action. Kyd, Awards, 388, 389; 1 Y. & J. 19; 1 Harr. Dig. 121.
4. If, after the reference, the arbitrators refuse to decide, this does not prevent the discontinuance; it is the submission that discontinues the suit, and not the award. The refusal of the arbitrators does not revoke the submission. If the submission be by bond, by a deed, also, must it be revoked. 5 B. & A. 507; 8 Johns. 125; 2 Petersd. Abr., marg. 121; Kyd, Awards, 30, 31; Watson, Arb. 16, 17; 16 Johns. 205;1 Cow. 335; 3 Hay. 42.
If the submission discontinues the suit, a revocation the most formal cannot reinstate it in court. 13 Wend. 293.
R. L. Caruthers and R. M. Burton, for defendant, cited and relied on Elliott v. Wilkinson, 8 Yerg. 411.
The only question presented by the record for the consideration of the court is whether, the parties to a suit having by bond, and not by rule of the court, submitted the action and the cause of dispute involved in it to arbitration, such reference shall have the effect to discontinue the suit. And we think it has such effect. If parties having a suit in court, by their own voluntary act, submit the action and cause of action to another tribunal, selected by themselves, and do not choose, by making their submission a rule of the court, to continue its...
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