Key v. Norrod

• Citation: 136 S.W. 991,124 Tenn. 146
• Parties: KEY v. NORROD et al.
• Decision Date: 25 March 1911
• Court: Supreme Court of Tennessee

136 S.W. 991

124 Tenn. 146

KEY v. NORROD et al.

Supreme Court of Tennessee.

March 25, 1911

Certiorari to Circuit Court, Overton County; C. E. Snodgrass, Judge.

Action by L. A. Key, administrator, against W. M. Norrod and others. Judgment by the Court of Civil Appeals for defendants rendered on an appeal from a judgment of the circuit court for defendants, and plaintiff brings a writ of certiorari. Reversed, and judgment entered for plaintiff.

C. J Cullom, for plaintiff.

A. H Roberts, for defendants.

GREEN J.

This suit was brought to recover judgment on a promissory note. The case resulted in favor of the defendant below, and was appealed to the Court of Civil Appeals. That court affirmed the judgment of the circuit court, and a writ of certiorari was granted, and the case brought here.

The defense made to the suit below was that the plaintiff and defendant had entered into an agreement to arbitrate all matters in controversy between them, and that an arbitration was had, which resulted in favor of defendant. The awarded was pleaded as a bar to the suit.

The plaintiff admitted having entered into an agreement to arbitrate these matters, but showed that prior to the time the award was made he served notice on the arbitrators that he had withdrawn his consent to the arbitration, and he contended, therefore, that the arbitration was had and the award made without authority, and was consequently not binding upon him.

It is conceded that the plaintiff did undertake to withdraw his consent to the arbitration before the award was made, and the hearing was ex parte, and the only question in the case is whether an agreement to arbitrate, such as this one, is revocable prior to the making of the award.

The submission was drafted with care and at some length, and it is not necessary to set it all out in this opinion.

This submission or agreement to arbitrate specifies the matters in controversy, names the arbitrators, fixes a date for the hearing, includes some other details, and then provides "Said award and judgment for costs will be made the decree of the chancery court of Overton county, Tennesee. An execution may be issued thereon as fully as if this cause had been brought in said court in the first instance."

This agreement contains no specification that the submission itself shall be entered of record in any court, but only provides that the award be entered and enforced in the chancery court of Overton county.

It is admitted that at common law an agreement to arbitrate, unless made a rule of the court, is revocable at any time before the award is made; and the law is equally plain that an award made after notice of revocation to the arbitrators is void, for the revocation terminates the authority of the arbitrators.

It is urged, however, that our statute changes the common law in this respect, and it becomes necessary, therefore, to investigate the statutory provisions that obtain in Tennessee, which are contained in the Code of 1858, carried into Shannon's Code, § 5188 et seq.:

"5188. All causes of action, whether there be a suit pending therefor or not, may be submitted to the decision of one or more arbitrators, as hereinafter provided. (1851-52, ch. 173. § 1.)

"5189. The submission may be made by any party in interest, or by an executor, administrator, guardian, trustee, or assignee for creditors, or it may be made by a trustee for a married woman, with her consent made in open court and entered of record, or by writing proved by privy examination as in case of conveyance.

"5190. The submission shall be by written agreement, specifying what demands are to be submitted, the names of the arbitrators, and the court by the judgment on their award is to be rendered. (1851-52, ch. 173, § 1.)

"5191. The submission may be of some particular matters or demands, or of all demands which one party has against the other, or of all mutual demands.

"5192. The agreement may specify that the submission be entered of record in any court of law or equity, or, in cases within their jurisdiction, before a justice of the peace. (1851-52, ch. 173, § 2.)

"5193. On proof of such agreement, or by consent of parties in person or by counsel, it shall be entered in the proceedings of the court, or on the docket of the justice, and an order made that the parties submit to the award, which shall be made in pursuance of such agreement.

"5194. Upon such proof or consent, the judge may, in vacation, make upon the agreement the order mentioned in the last section, and such order shall have the same force and effect as if made in terms.

"5195. No such submission shall be revocable after the agreement is signed by the parties or entered of record, without leave of the court or justice, except by mutual consent entered of record."

Considering the last three sections quoted, it is seen that section 5192 provides that "the...