Seely v. Pelton

• Decision Date: 31 January 1872
• Citation: 1872 WL 8117,63 Ill. 101
• Parties: ANTHONY S. SEELYv.ELIZABETH PELTON, Admx.
• Court: Illinois Supreme Court

63 Ill. 101

1872 WL 8117 (Ill.)

ANTHONY S. SEELY

v.ELIZABETH PELTON, Admx.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Greene county; the Hon. CHARLES D. HODGES, Judge, presiding.

The submission did not require the award to be in writing, or copies thereof to be delivered to the parties.

Mr. M. MYERSTEIN and Messrs. WOODSON & WITHERS, for the appellant.

Mr. H. CASE, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

An action at law was pending in the Greene circuit court, in which appellee was plaintiff and appellant defendant. It was agreed by the parties to submit the case to arbitrators, and James W. Gregory and James Smith were selected, with power, in case of disagreement, to call in a third person to act as umpire. The parties and their attorneys appeared before the arbitrators, who heard the case, and made and published this award:

“WHITEHALL, ILL., March 18, 1869.

We, the undersigned, arbitrators in the case wherein Elizabeth Pelton, administratrix of George Blum, is plaintiff, and A. S. Seely is defendant, agree that defendant shall pay the sum of $700 to plaintiff, and costs in this arbitration, also former costs in the circuit court.

JAMES W. GREGORY,

JAMES SMITH.”

The money not having been paid, this action was commenced in assumpsit on the award. Appellant pleaded the general issue and three special pleas. A demurrer was sustained to the special pleas, and issue was joined on the other plea. A trial was had, resulting in a verdict and judgment in favor of plaintiff below, and the case is brought here by appeal.

It is insisted the court erred in sustaining the demurrer to the special pleas. The first of these pleas avers a revocation of the authority conferred upon the persons selected to arbitrate and determine the case. This plea presented no bar to the declaration, as it avers that both parties, with their attorneys, attended at the arbitration and entered into and upon the trial before them. Even if there had been a revocation, this would constitute a complete waiver. And it is no answer to that averment to say the power had been revoked.

The second special plea averred that the arbitrators heard and determined matters not embraced in the submission. This plea is defective in not stating in what particular the arbitrators exceeded their jurisdiction. This was necessary, to apprise the appellee as to what she would have to meet on the trial, and to narrow the issue to a single point and prevent the opening of the question whether each item heard by the arbitrators and allowed by them was within the submission.

As to the averment that the arbitrators failed to pass upon and allow matters embraced in the submission, this is defective, in not further averring that they had notice of such matters. There is no averment that appellant presented and offered to prove them. For aught that appears, he may have entirely withheld them, and if so, it would be manifestly wrong to permit him to afterwards set that fact up as a defense to the award. See Whetstone v. Thomas, 25 Ill. 361. As to the third special plea, nothing is urged in support of the objection, and we suppose it is abandoned.

It appears that, after appellee had closed her evidence, appellant moved to exclude it as in case of a non-suit, because it was claimed that it failed to establish a cause of action. The evidence tended strongly to prove the averments of the declaration, and it was not for the court to...