Woodbury v. Proctor

Bigelow, J. The authority of referees to determine a cause pending in court, so that their award shall have the effect of a verdict and be the basis of a judgment, is derived not from the as.sent of the parties, but from the court by which they are appointed. The parties cannot, by their own act merely, empower persons in the country to make an award which shall be binding on the court where the action is pending. The submission under a rule of court takes force, effect and validity from the action of the court sanctioning the previous agreement of the parties. It becomes part of the record, and the case can be heard and tried only under the submission while it remains unrevoked. It is then binding on the court as well as the parties. In the case at bar, the reference as originally constituted by the rule of court has never been changed on the record, and no persons but those there named had any jurisdiction of the case. There has therefore been no award under the rule. Only one of the arbitrators duly appointed has signed the award. The agreement of the parties, subsequent to the submission for the appointment of a new referee, must be treated as a nullity. If the parties can appoint one referee in place of one appointed by the court, they can in like manner appoint two or more, and thus make an entirely new arbitration without the authority or sanction of the court. But there is no warrant for any such proceeding. There are but two modes known to our law, in which an award can be made the basis of a final judgment between the parties as upon a verdict, without any new process One is by a submission under the Rev. Sts. c. 114, before a jus tice of the peace, and the other is by reference of an action pending to arbitrators appointed by the court. Commonwealth v. Pejepscut Proprietors, 7 Mass. 414, 417. Haskell v. Whitney, 12 Mass. 50. Foster v. Durant, 2 Cush. 550. Judgment reversed; award set aside.