Farwell v. Sturges

Mr. Justice Carter delivered the opinion of the court: It was shown on the suggestion of a diminution of the record and motion for leave to file the additional record, the decision of which was reserved to the final hearing, that the cause in the circuit court mentioned in such additional record and the cause mentioned in the first transcript filed as a return to the writ of error were one and the same, though it cannot be so determined from the certificates of the clerk. No attempt is made by plaintiff in error to disprove the showing made that the cause mentioned in the additional record, and of which it is in part a transcript, is the same cause in which the final decree was rendered, except that by his affidavit and others it is denied that the statutory agreement recited in the additional record was executed by any of the parties whose names appear signed thereto, except Wi-lliam Sturges. It is also denied by the Far wells that they authorized any such signing, or that they knew of the existence of said agreement, or the record thereof, until after the final decree. It is manifest that we cannot in this proceeding and on affidavits try the question as to whether the parties did or did not execute some original paper writing of which a record has been made in the cause in the court below. The only questions on this motion are, Was any part of the record omitted in the first transcript? And, Is the additional record certified to us such omitted part? We are satisfied that both of these questions must be answered in the affirmative, and that the additional record should be filed as a part of the record in said cause. It will be so ordered. Schirmer v. People, 33 Ill. 276; Goodrich v. Cook, 81 id. 41. The record contains inherent evidence that the proceedings, certified in the two transcripts were all had in the same cause. There is identity of names of parties and of the matters to be submitted as recited in the record. The supplemental record shows that the agreement of submission transcribed in it was presented to Judge Tuley in the circuit court on March 9,1894, at the February term, by the attorneys and solicitors of the respective parties, and that upon their written stipulation filed in the cause the following order of court was then entered of record: “On reading the stipulation filed herein, it is ordered that the said stipulation and agreement of submission of certain matters in controversy between said parties to Hon. Murray F. Tuley, one of the judges of the circuit court of Cook county, for his determination without a jury, and from which said determination there shall be no appeal, be spread at large upon the records of this court; and it is further ordered that the hearing of said matters be and hereby is set for Wednesday, April 4,1894, and that cause shall then be tried without further delay.” It is urged, however, that the final decree recited that the cause came on to be heard upon the agreements of submission which are copied in it, and which, as will be noted from the statement of the case, are not identical with but are different in some respects from the agreement of submission contained in the supplemental or additional record, and that the decree itself shows that the hearing was had, not upon the last mentioned agreement, but upon the two recited in the decree. There is some room for doubt as to the meaning of the decree on this subject, but we do not regard it as inconsistent with the position that the agreement mentioned in the supplemental record, which upon its face conformed, in every respect, to the statute, and which, when the cause was set by the court for a hearing, (and without which there was no cause,) was presented to the court and ordered spread upon the records, was the agreement upon which the judge relied as conferring, in connection with the appearance of the parties, jurisdiction to hear and determine the matter in dispute,—otherwise why order it to be entered of record as the statute requires? Otherwise why did the attorneys for the respective parties, omitting none, so stipulate and so represent to the court? Otherwise why did the trial take place in pursuance of this order so made? If the court or the parties did not regard this as the agreement under which the proceedings were being carried on, or if, for any reason, it was determined to disregard it and to proceed under other agreements, we would expect to find some record of such change of purpose, and not to find the court proceeding to hear a case of so complicated and important a character as to occupy its time and attention for many weeks, without any record whatever showing that there was any cause pending. The agreements recited in the decree had not been filed or entered of record, and were only finally- recorded as a part of the decree. It may well be that after the final decree was rendered, and, as a part thereof, the agreements of submission had been entered of record, the statute requiring such entry of rec: ord was sufficiently complied with; but this view does not lessen the force of the argument that the trial judge would not be expected to proceed with the trial until the statutory agreement, which should precede or accompany the oral submission, had been entered of record, and that it would require something more than the expressions in the decree relied upon by counsel to lead to the conclusion that he did so. The substance of the contention of plaintiff in error now is, when stated in plain language, that the trial judge was deceived and imposed upon, not by the parties, but by the counsel then representing them; that the agreement which was presented to him in court as one of the judges thereof, by counsel for all the parties, including plaintiff in error, as their agreement selecting him to hear and .determine their controversies and to render a final judgment or decree under the statute which could not be reversed on error or appeal, and which he ordered to be spread upon the records of the court and upon which he set the cause for hearing, was not the agreement of the parties at all, nor of any of them except William Sturges; that although the names of all the parties, with seals attached, appeared thereto as if signed by themselves, such signatures were so affixed by unauthorized persons and without their knowledge; that although they afterward appeared in person in court in the cause before the same judge, with their counsel, (the same counsel who presented the agreement and caused it to be entered of record,) as provided by the order when the agreement was so presented, and by their said counsel made an oral submission of the matters in controversy without the formality of written pleadings, as the statute provides, and induced the trial judge to hear and determine the same, and although this agreement was then of record in the same court and cause, as their counsel then well knew, they did not personally know of it, nor of any but the two agreements recited in the decree, and that therefore they, the several parties, are not bound by it, and that, unless jurisdiction was conferred by the agreements recited in the decree, the trial court had no authority to enter the decree and it must be reversed. That plaintiff in error is estopped from denying the execution and binding force of the agreement mentioned in the supplemental record, after he and all the parties, as well as the court, have so acted upon it, would seem too plain for argument. Whether his counsel had authority to execute and present to the court for him that agreement or not, and whether or not he knew of its existence and entry of record, the knowledge of his counsel was his knowledge, and he ratified, approved and confirmed it by acting under it and by appearing and inducing the court and the other parties to rely upon it, and he cannot now be heard here to dispute its binding force. While the statute provides that no record of the matters in controversy shall be made except of the agreement and of the judgment or decree, it does not require the agreement to be set out or recited in the judgment or decree, and no inference can be drawn that the trial judge did not proceed under this agreement because he did not set it out in the decree. The substance of the two agreements which are recited is the same as that of the agreement mentioned in the supplemental record, but as Bessie McLeod Sturges did not sign the first of the two agreements and as the one she did sign was not under seal and it was executed, not by plaintiff in error personally or by his attorney in fact, but only by his attorney, and the other parties to the record were not parties to it, it is contended that these agreements did not authorize the decree in favor of Bessie McLeod Sturges against plaintiff in error and the other members of the syndicate. When read and considered together, however, the plain intention appears to have been to make Mrs. Sturges one of the parties to the proceedings as outlined by the first of the two agreements. It may well have been because of the imperfection of these agreements, in view of the statutory requirements, that the more formal and complete agreement set out in the supplemental record was prepared and presented to the trial judge and entered upon the records of the court. We cannot upon the record before us, if we could under any circumstances, suppose, with counsel now representing plaintiff in error, that the learned judge of the trial court was engaged in trying certain controversies between Bessie McLeod Sturges and the plaintiff in error under one agreement, and certain other controversies between William Sturges and plaintiff in error and his associates under the other agreement, as separate causes, and that he then, ignoring all distinctions as to parties, entered a decree in favor of Mrs. Sturges, not against her adversary, but against parties to the other cause who had submitted for hearing no controversies with her. There are many different points of view from which the case may be regarded, but they all lead to the same conclusion. If there be any doubt whether the decree was authorized by the two agreements recited in it, the construction placed upon the proceedings by the parties themselves was in harmony with the provisions of the agreement as set out in the supplemental record, and if that instrument were regarded only as making clear the construction put by the parties and the court upon the other two recited in the decree, the result would be the same,—to sustain the decree. Question is raised as to the nature of the proceeding. Counsel insist that it is an arbitration, and that the award cannot stand unless the provisions of the statute are strictly complied with. The proceeding is not an arbitration, but is a proceeding in a court of general jurisdiction, before a judge thereof selected by the parties. By the ancient common law all pleadings were oral, and we see no reason why the parties may not, under the statute in question, without converting the trial judge into a mere arbitrator, waive the issuing of process and the formalities of written pleadings and trial by jury, and by agreement appear in a circuit court before a judge thereof selected by them, and under an agreement to be entered of record, as provided, make an oral submission of their controversies to such judge and be bound by the judgment or decree which shall be entered, releasing all errors and waiving the right of appeal. The statute requires the proceedings to be had in the circuit court or in the Superior Court of Cook county, and a judgment or decree to be entered which “may be enforced in like manner as other judgments or decrees of such court.” The statute evidently contemplates that the proceeding shall be a proceeding in court, and one at law or in chancery, according to its nature. It is next contended by plaintiff in error that defendant Bessie McLeod Sturges cannot avail herself of the agreement of submission releasing all errors, because she has not set the same up by plea in this court. It is, in effect, argued, that while the statute expressly provides that no appeal shall be allowed, it is provided only in .the form of the agreement that by such agreement all errors that may intervene may be released, and that such release may be pleaded in bar of the writ of error. This contention is not altogether without force. The right of appeal exists only by statute, but a writ of error is a writ of right in common law cases, and the right to prosecute a writ of error in cases submitted under this statute is recognized by the statute; and it would seem that the statute contemplates that the agreement releasing errors should be pleaded in bar. But this is a question of pleading, only. If the release of errors did not appear from the record itself made in the circuit court, it would, of course, be necessary to plead such release in this court, but as the agreement contains a release of errors and was made a part of the record below there would seem to be no necessity for a plea of a release of errors in this court. Upon the case as made by plaintiff in error upon the whole record it appears that he released all errors intervening in the court below, and the questions are presented by the record itself without being brought to our attention by plea. (Austin v. Bainter, 40 Ill. 82.) The joinder in error upon the record as it stands operates as a demurrer, and the court determines, as a question of 'law, from the record itself, that the errors alleged to appear therein are by the same record shown to have been released. It is, of course, true, that if the court did not have jurisdiction to render the decree no recital in the record that plaintiff in.error had released all errors would avail. But we are of the opinion that jurisdiction was acquired and that the decree is conclusive. It will therefore be affirmed. ~ „ , Decree affirmed.