Sisk v. Garey

• Decision Date: 13 July 1867
• Parties: FRANCIS A. SISK and others v. THOMAS F. GAREY.
• Court: Maryland Court of Appeals

27 Md. 401

FRANCIS A. SISK and others v. THOMAS F. GAREY.

Court of Appeals of Maryland

July 13, 1867

APPEAL from the Equity side of the Circuit Court for Caroline County.

On the 27th of May, 1856, the appellant Sisk, as sheriff of Caroline county, sold under a fieri facias issued out of said Court, upon the judgment of Smith, Knowles & Co. vs. John Layton, entered to the use of the appellee, certain mill property of said Layton, known as "Potter's Mills." The appellee became the purchaser for the sum of two thousand dollars, and executed his single bill to the appellant Sisk, as sheriff, for the purchase money, payable on demand. On the 11th of October, 1856, the appellee paid Sisk fifty dollars on account of said single bill. Afterwards, certain differences having arisen between them as to fees due from the one to the other, (the appellee having been clerk of the Circuit Court for said county, and the appellant the sheriff of said county,) and also in regard to various other matters of account between them, they on the 7th of June, 1860, entered into an agreement to submit the same to the arbitration of J. Hopkins Tarr and George M Russum, and executed mutual bonds to abide by and perform the award of said arbitrators in the premises. The terms of submission were of "all and all manner of action and actions, cause and causes of action or actions, suits, bills bonds, specialties, judgments, executions, accounts, debts dues, sum and sums of money and demands, whatsoever, both in law and in equity or otherwise, however, which at any time or times heretofore have been had, made, moved, brought commenced, sued, prosecuted, committed, omitted, done or suffered by or between the said parties or either of them;" and the awards were to be made before the first of July next ensuing. The parties appeared in the presence of each other before the arbitrators, in pursuance to notice given, and each filed his account against the other. After both parties had left the arbitrators, Sisk returned and laid before them the appellee's note to him, as sheriff, dated 27th May, 1856, for two thousand dollars, and a claim of execution of Henry Mobray, use of Sisk vs. James H.

Spencer and Ennalls Hubbard. Upon these accounts the arbitrators, on the 30th day of June, 1860, made their award, accompanied by statements showing what they found due to and from the parties respectively, and awarding to Sisk the sum of two thousand three hundred and eighteen dollars and ninety cents. The appellee being dissatisfied with the award, and claiming that he held a set-off to his note for two thousand dollars, being the oldest judgments against John Layton, held by and transferred to himself, the arbitrators requested of Sisk his consent to the re-opening of the award, which he refused, whereupon they, at the request of the appellee, executed a certificate bearing date on the 9th day of July, 1860, wherein they certified that the execution of Henry Mobray was not endorsed or assumed by the appellee; and that so far as they were informed, he had no notice that the aforesaid note of $2,000, which specified that the same was to be applied to the preference claims against said Layton, would be presented in the arbitration of the disputes of Sisk and himself concerning fees, &c. At the October Term, 1860, the appellant Sisk, brought suit on the arbitration bond, and the appellee appeared by counsel. The case was continued under a rule narr. to March Term, 1861, when leave was granted to amend the writ by the narr. so as to make it a suit on the award. At March Term, 1862, there was a motion by the counsel for the appellant Sisk, for a judgment for want of a plea. On the 13th of March, 1862, a bill was filed by John M. Robinson, on behalf of the appellee, against the appellants, to set aside the award, and for an injunction to restrain them from prosecuting said suit. An injunction was granted on this bill, to which an answer was filed by the appellant Sisk, on the 9th of October, 1863, only after an attachment had been issued and served upon him to compel an answer. On the 8th of July, 1864, a commission was issued to James B. Steele to take testimony, and on the 29th of March, 1865, a rule was laid on the Commissioner to return the commission, and on the 11th of July following the commission was returned. On the 16th of January, 1865, a rule was laid on the appellee to employ new counsel, Mr. Robinson having become disqualified to act as such, by his election as Judge for the Tenth Circuit; and on the 4th of September following, the case was entered "off under the rule." At October Term, 1865, in the suit on the award, a judgment was entered under the rule, ""for want of a plea;" and on the 30th of August, 1866, a fieri facias was issued on this judgment. On the 6th of December following, the bill in this case was filed, asking for an injunction to restrain the appellants from enforcing the aforesaid execution. On the 26th of the same month, the injunction issued as prayed. On the 16th of January, 1867, the appellant Sisk filed his answer, and a motion for a dissolution of the injunction, which was set down for hearing on the 29th of the same month. On the 4th of February following, an order was passed overruling the motion for a dissolution of the injunction, and continuing the same until the further order of the Court. From this order the present appeal was taken.

The cause was argued before BOWIE, C.J., BARTOL and WEISEL, J.

George M. Russum, for the appellants, argued:

That the injunction should have been dissolved, because the remedy at law was adequate. The powers of arbitrators are exactly defined in all cases, by the language of their appointment whether it be found in a rule of Court or in the contract of submission. In both cases their proceedings are the same, and the question, what was covered by the terms of submission, must be decided by the principles of the common law. Shriver vs. The State of Maryland, 9 G. & J., 11, 13.

If the matters and things considered and determined by the arbitrators were not within the terms of the submission, the award was void. Cromwell vs. Owings, 6 H. & J., 14; Hewitt vs. The State, 6 H. & J., 98; Bouvier's Law Dict., Tit. Award.

If, as we contend, the award be within the terms of submission, the remedy at law was equally adequate. The submission was of all matters in dispute, "at law and equity, or otherwise," which included transactions of an official or representative character. Caldwell on Arbitration, 235, note 1.

That such was the understanding of both the parties, reference need only be had to accounts B and C. Account C, filed by the appellee, shows that the principal item of his claim against the appellant Sisk was for fees due the former as late clerk, and placed in the hands of the latter as "sheriff." The certificate of the arbitrators dated July 9th, 1860, shows that the alleged set-off of the appellee was not before them and not considered in making up their award. The suit was on the award and not on the submission, as is admitted in the bill. This alleged set-off could then have been plead in bar to show nothing due on the award; for the award could be final and conclusive only as to the subjects embraced in the submission and considered in making up the award. 2 Starkie on Evidence, 119, side page and note A, and 119, top page and note A; Caldwell on Arbitration, 407, note 1; Shriver vs. The State of Maryland, 9 G. & J., 13, 14.

The bill charges neither fraud, accident nor mistake on the part of the arbitrators; nor is any fraud alleged in obtaining the judgment on the award. It admits the debt, and the alleged set-off is fully and flatly denied by the answer. The whole aim is to procure the interposition of a Court of Equity, in order that the appellee may have the benefit of an alleged claim clearly within the terms of the submission, and which was kept back from the arbitrators, and thus to have a presumption raised by the Court for the sake of overturning the award--setting aside the judgment of the arbitrators on facts as to which their judgment is final, and inquiring generally into the merits of the award--which a Court of Equity will not do. Caldwell on Arbitration, 241, 279, note 2; Cook vs. Murphy, 7 G. & J., 282; Cromwell vs. Owings, 6 H. & J., 12.

If the appellee had any claim against the appellant Sisk on account of the alleged judgments, he had his election to proceed at law upon the sheriff's bond, or to settle it in any other way; and having elected to settle by arbitration, and neglected to bring it before the arbitrators, and to plead it in bar, to show nothing due on the award, no principle of equity will permit him to avail himself of this Court to protect himself against his own laches.

All the equities of the bill, if it had any, are sworn away. It is denied that the appellee has any property or right in the pretended judgments against John Layton and Layton and Loockerman, it is averred that they are paid--all fraud, and all alleged intended fraud are denied most emphatically. The answer being thoroughly responsive, all its allegations on this hearing must be taken as true. Dorsey et al. vs. Hagerstown Bank et al., 17 Md. Rep., 408; Colvin vs. Warford et al., 17 Md. Rep., 433.

But, it is claimed that there was an injunction and that it abated under a rule that was never served. There is no proof of this, and besides, it was not necessary that it should be. The rule to employ new counsel is not the offspring of any mandate of the law, but of the courtesy of the bar, and the want of it would not vitiate the judgment. Evans' Practice, 243; Munnikuyson vs. Dorsett, 2 H. & G., 374.

It is unknown to the Chancery practice of Maryland. Besides, the rule laid on the...