Duffy v. Odell

Mr. Presiding Justice Ball delivered the opinion of the court. The only question we need to consider is this: did the trial court have jurisdiction to enter judgment upon this award ? The parties hereto, while the matter in dispute was pending in suit, entered into the agreement above set forth, and upon the finding of the arbitrators being presented to the trial court, judgment was entered in that case upon the award for the sum therein named. That appellee had certain common-law remedies arising out of the award is undisputed; but appellee did not attempt to enforce any of these remedies. On the contrary he proceeded as if this were a statutory arbitration, and asked and induced the court, upon no other evidence than such agreement and award, to enter a judgment in the pending case against appellant for the damages found by the arbitrators. Section 1, chapter 10, R. S., reads as follows: “ That whenever the parties to any suit pending in aiw court of record shall be desirous and willing to submit the matter involved in such suit to the decision of arbitrators, an order shall be entered directing such submission to three impartial and competent persons to be named in such order— such arbitrators to be agreed upon and named by the parties. But if the parties are unable to agree, each shall name one and the court the third.” This section is identical with section 2, chapter 7 of the Revised Statutes of 1845. In the case at bar the court entered no order in the pending suit directing such submission to three disinterested and competent persons. The first notice of this submission given to the court, as shown by the record, appears when judgment was asked upon the award. The substituí tion of the damages found by arbitrators in lieu of the damages to be found by a jury is unknown to the common law. Hence the party presenting an award and asking for judgment upon it for the damages stated therein, must show that the statute authorizing such substitution has been strictly complied with in all essential particulars before his request can be granted. Without such showing the court lacks jurisdiction to make the order. In Low v. Nolte, 15 Ill. 368, a motion was made for judgment upon an award. The matters in controversy, namely, the alleged violations of a certain contract, were then pending in certain suits. The parties, without complying with the statute in that regard, had submitted-such matters to arbitrators, and the men so selected had made an award finding that Low & Chapin should pay to Holte the sum of $5,876.46 as damages for such violations. The court entered judgment upon the award. From this action an appeal was taken. The Supreme Court, after showing that section 1 of said chapter 7, R. S. 1845 (now section 16 of chapter 10), had not been complied with, say: “ The want of compliance with the second section of the act is, if possible, still more manifest. The subject-matter of the submission under that section is a suit pending in court, and nothing else; and the only mode of submission is, by a rule of the court, to be entered on the record. It is only where such submission is made, that the court is empowered by the second section to enter any judgment on the award. Here the agreement of submission was made out of court, and, so far as this record shows, the first.the court ever heard of it was after the award was made, and when the motion was entered for the judgment. We are very clearly of opinion that the statute did not authorize this judgment, and that it must be reversed, and the party left to seek his remedy in another form, as he may be advised.” This statute has remained unchanged for sixty years, and as far as we can ascertain the interpretation given it in Low v. Nolte, supra, has never been questioned. On the contrary it has been cited, approved or followed in many subsequent cases, among which are Weinz v. Dopler, 17 Ill. 111; Rankin v. Rankin, 36 Ill. 298; Cook v. Schroeder, 55 Ill. 533; Moody v. Nelson, 60 Ill. 229; Gregory v. Healy, 61 Ill. 470; Morey v. Warrior M. Co., 90 Ill. 310; Martine v. Harvey, 12 Ill. App. 590; Chickering v. DeVoll, 55 Ill. App. 444. Counsel for appellee call attention to the fact that in the agreement it is stated: “And in case such judgment is entered, said party of the second part (appellant) hereby waives and releases all errors that may intervene in the entry of said judgment, and waives the right of appeal or writ of error thereon,” and assert that this clause bars appellant from obtaining a reversal of the judgment. The jurisdiction of the court depends, not on the agreement of the parties, but on the law. The promise of appellant to waive the right of appeal and the right to sue out a writ of error, was not incorporated in the record of the court. It is found in the agreement only. Such a promise does not estop the party making it from taking the case to an appellate tribunal. Fahs v. Darling, 82 Ill. 144. Counsel for appellee cite Boyles v. Chytraus, 175 Ill. 375, a judgment by confession, in which the court say: “ By the cognovit also the defendants below agreed that no writ of error shall be prosecuted on the judgment entered by virtue of such warrant of attorney. In view of such waiver and release, the plaintiffs in error cannot be permitted to assign as error that which they have solemnly-released of record. They must be bound by their deliberate declarations entered of record in open court.” The line of demarcation between the case at bar and the case last cited is clear. Authorities need not be cited to sustain the proposition that the objection that the trial court had no jurisdiction to enter judgment upon the award may be made at any time. The judgment of the Circuit Court is reversed and the cause is remanded. Reversed and remanded.