Memphis & Charleston R.R. Co. v. Pillow

• Decision Date: 30 April 1872
• Citation: 56 Tenn. 248
• Court: Tennessee Supreme Court
• Parties: MEMPHIS & CHARLESTON RAILROAD CO. v. JEROME B. PILLOW.

56 Tenn. 248

MEMPHIS & CHARLESTON RAILROAD CO.

v.JEROME B. PILLOW.

Supreme Court of Tennessee.

April Term, 1872.

FROM SHELBY.

Appeal in error from the judgment of the Law Court, May Term, 1868. JAMES O. PIERCE, J.

E. M. YERGER, HUMES, POSTON & SCOTT for appellant.

MCRAE & PERKINS for appellee.

DEADERICK, J., delivered the opinion of the Court.

Verdict and judgment were rendered in favor of Jerome B. Pillow against the appellant in the Law Court of Memphis, at its February Term, 1868, for $10,000, damages for injuries sustained by him from its alleged wrongful acts.

Several questions are made upon the record which it is insisted show that the judgment should be reversed. Within a year after the injuries were sustained, Pillow brought his suit. While the suit was pending, the counsel of the parties, on the 5th of October, 1865, by agreement in writing, referred the case to Judge Noe and Mr. Avery, two members of the Memphis bar, with power to them to appoint a third referee without suggestion from either party.

The submission bond contains this further stipulation, after providing for the mode of selection of the third referee: “And thereupon the three shall try the case upon the testimoney and argument of counsel. It is further agreed that the decision of the above referees shall be final, and bind the parties without appeal.” The arbitrators named selected a third referee. It was not provided in the submission bond that the award of the referees should be made the judgment of the court. Two of the three agreed upon and published their award in favor of the Railroad Company, and the other referee made and published his award in favor of Pillow.

By the terms of the submission, to constitute a valid award it was essential that all the referees should unite in it. It is expressly stipulated that the three shall try the case, and that their decision shall be final, and bind the parties. It is not a case in which a majority may make a valid award, as there is no provision in the submission from which it can be inferred that it was intended that the award might be made by a majority of the whole number of arbitrators selected.

A motion to discontinue the suit was made by defendant, thereupon the plaintiff took a non-suit, and judgment was rendered against him for costs. Within less than a year the plaintiff commenced a new suit, and to this action, amongst other pleas relied on, the defendants pleaded the award hereinbefore mentioned, and the statute of limitations.

For the reasons already stated, the award of two of the three arbitrators selected to determine the controversy between the parties was invalid, and constituted no defense to the plaintiff's action.

There can be no question that the plea of the statute of limitations of one year is a perfect defense against this suit, unless it falls within the savings provisions of Sec. 2755 of the Code. That section provides as follows:

“If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested or reversed on appeal, the plaintiff or his representatives and privies, as the case may be, may, from time to time, commence a new action within one year after the reversal or arrest.”

The act of 1715, ch. 27, sec. 6, is manifestly extended in its operation by the section of the Code quoted. For in addition to the cases of arrested and reversed judgments on appeal, that section gives the right to commence a new action within a year after the first, whenever judgment has been rendered against the plaintiff in an action commenced within the time limited, “upon any ground not concluding his right of action.”

It is well settled that a judgment against a...