Muckey v. Pierce

By the Court, Whiton, C. J. It appears by the bill of exceptions in this case that Pierce made a motion to dismiss the appeal, founded on affidavit setting forth that the matters in dispute between the parties had been submitted to arbitrators, after the cause had been taken to the County Court by appeal from the judgment rendered by the justice. It further appears that the court sustained the motion and dismissed the appeal. There is no doubt that the submission of a cause to arbitrators by the parties, has the effect to discontinue or dismiss it. The reason is, that the parties have chosen another forum for the determination of the [309] matters in controversy between them, and the court in which the suit may be pending at the time of the submission, will not proceed further with the case, but will leave the parties to the tribunal they have created for themselves. Miller vs. Van Anken, 1 Wend. R. 516; Van Slyke vs. Lettice, 6 Hill, 610; Larkin vs. Robbins, 2 Wend. R. 505; ex parte Wright, 6 Cowen, 399; Towns vs. Wilcox, 12 Wend. R. 503. But such a submission is no bar to the action; it operates merely to discontinue the suit. If the submission should be revoked, a new suit may be commenced and prosecuted to .judgment, notwithstanding the submission. These principles show conclusively that the judgment which was given in the present case is erroneous; because the effect of it is to leave the judgment which was recovered before the justice in full force* The Statute provides (Rev. Stat. Chap. 88, § 242,) that “Upon an appeal being dismissed or discontinued, and a certified copy of the order of dismissal or discontinuance being served upon the justice, he shall proceed as if no appeal had been made.” The dismissal of the appeal in this case therefore had the effect to give the appellee a valid judgment, when as he contended, the matter in controversy had been submitted to arbitrators. This is contrary to all the authorities. If the affidavits showed a submission to the arbitrators, the case, and not the appeal, should have been dismissed. This would have given the parties an opportunity to pursue their controversy before their own chosen tribunal.