Climenson v. Climenson

Opinion by Mb. Justice Williams, This action was- brought upon an award, and the question raised by the defendant on this record is whether the award will support an action. Is it an award at common law, or must it be treated as made in an action pending before a justice of the peace and enforceable only by him in the manner pointed out by the act of 1810 ?• That act makes provision for the reference of actions pending before a justice when the amount of the plaintiff’s claim exceeds five dollars and thirty-three cents and either party refuses to submit to the determination of the justice. In such a case it becomes the duty of the justice to request the parties to choose referees, “ one, two or three each, and mutually to agree upon a third, fifth or seventh man.” The referees when chosen are to be sworn well and truly to try all matters in variance between the parties, submitted to them ; and after the trial thejr are to make an award and transmit the same to the justice, whose duty it is to enter judgment thereon for the sum awarded with costs. These provisions show that as a basis for the reference provided by the act of 1810 there should be an' action pending before a justice of the peace for some cause of action; it should appear that the plaintiff’s claim exceeds five dollars and thirty-three cents ; and that the parties, or one of them, refuses to submit .to the determination of the justice. These circumstances should appear upon the docket of the justice, and should be followed by the selection of the referees, by their award, and by the entry by the justice of a judgment for the sum awarded with costs. The entries upon his docket thus become a connected and self-sustaining record of the proceedings from the beginning of the action to the entry of judgment therein. Turning now from the provisions of the act of 1810 to the case before us, we find that we have no pending action, no statement of the nature or the amount of the plaintiff’s claim, aird no refusal to submit to the determination of the justice. On the other hand the parties seem to have pre [455] sented themselves before the justice in order to have their agreement reduced to writing. They declare before him that they have agreed to refer, not a pending action but all matters in variance between them, to three men, whom they name, for their decision, and that they have fixed upon a time and place for the hearing.' The justice wrote out this agreement on his docket, writing above it as a caption the words “Amicable Action.” So far the action of all parties indicates a common law submission. Nothing but the words “ Amicable Action ” could by any construction connect the justice with the agreement in any .other capacity than as the scribe of the parties. The arbitrators were probably misled by the caption to the submission, and returned their award to the justice, who thereupon wrote upon his docket “ Judgment publicly according to the above award.” We think the justice had no jurisdiction over this award, and the entry on his docket is without effect upon the rights of the parties. The basis for a submission under the act of 1810 is wholly wanting. There was no action pending, no statement of any claim or demand, nothing to show the-amount demanded, and no refusal to submit to the judgment of the justice:. On the other hand the elements of a common law submission are-present. There was an agreement between the parties to submit all matters at variance between them to the decision of arbitrators ; this agreement was reduced to writing and a copy •of it furnished to the arbitrators; the arbitrators heard the-parties and made'an award which they reduced to writing.. This award was returned to the justice instead of being de-. livered to the successful party ; but this could not change the-character of the submission or give jurisdiction to the justice. The submission and award are at common law. The learned judge of the court below was right in. so holding and the judgment is affirmed.