Williams v. Tracey

• Decision Date: 25 October 1880
• Citation: 95 Pa. 308
• Parties: Williams et al. <I>versus</I> Tracey & Co.
• Court: Pennsylvania Supreme Court

95 Pa. 308

Williams et al. versus Tracey & Co.

Supreme Court of Pennsylvania.

October 5, 1880.

October 25, 1880.

October 5th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 137 D. D. Bruce and K. McIntosh, for plaintiffs in error.— While this court has held that an attorney at law has power to refer his client's case without special authority therefor (Wilson v. Young, 9 Barr 101), yet it has also as distinctly held that the client can either revoke the submission or ask the court to set aside the reference: Millar v. Criswell, 3 Barr 449. The plaintiffs in error pursued the remedy pointed out by this court in Bingham's Trustees v. Guthrie, 7 Harris 419, and cases therein cited, yet the court refused to set aside the reference and denied them the right of trial by jury. The application to set aside the reference was in time.

The award of arbitrators should have been set aside for the reasons that the rule to show cause was granted.

Whitesell & Son and McCreery & Erskine, for defendants in error.—After an agreement for a submission has been executed, neither party can revoke it: Shisler v. Keavy, 25 P. F. Smith 79; Rogers et al. v. Playford, 2 Jones 181; McCahan v. Reamey, 9 Casey 535; Rust v. Caldwell, 25 P. F. Smith 165; Wilson v. Brown, 1 Norris 437. Every presumption will be made in favor of an award when it is in pursuance of a submission made by the parties themselves. In this case, the reference was not only made and agreed to in open court, but a written agreement was entered into. The defendants and their attorneys had due and timely notice as well as the arbitrators, and if the defendants and their attorney did not attend the three meetings, it is their own misfortune.

Mr. Justice PAXSON delivered the opinion of the court, October 25th 1880.

This record presents the single question whether the court below was right in refusing to set aside the award of arbitrators. The cause was referred by agreement of counsel in open court. The power of an attorney to refer his client's cause is settled: Wilson v. Young, 9 Barr 101. If dissatisfied, the client can revoke the submission or ask the court to set aside the reference before it has been executed: Miller v. Criswell, 3 Barr 449; Bingham's Trustees v. Guthrie, 7 Harris 418. It appears from the record that the rule to show cause why the agreement...