Minneapolis & St. Louis Railway Co. v. Cooper

Mitchell, J. However desirable for certain reasons it might be 1o sustain tlie judgment appealed from, it is impossible to do so consistently with well-settled legal principles. It is not and could not be claimed that there was “a reference” of the issues in the action. It is conceded that the agreement of the parties was to submit the controversies which were the subject of the action to arbitration. It is admitted that it was not a statutory submission, hence it must have been either a common-law submission or what was termed “a submission by rule of court.” Assuming, without deciding, that there is in this state such a thing' as a submission to arbitration by rule of court, the facts fall far short of making out any such submission in this case. It was not made by “rule of court” or “judge's order," neither did the deed of the parties contain any agreement that it might be made a rule of court. The mere fact that the controversies agreed to be submitted were the subject of a pending action would not make it a submission by rule of court. 2 Tidd, Pr. 819 et seq. The decisions in Pennsylvania cited to the contrary are based on the “compulsory act” of 1705, and hence are not in point. The judge’s private memorandum on his calendar amounted to nothing. All the acts of the parties amounted to was a common-law submission to arbitration, which was revocable at any time before award made. It appears that Cooper did revoke it before award made; and no subsequent order of the court, although assumed to be made nunc pro tunc, could affect the prior revocation. Judgment reversed. Gilfillan, C. J., absent on account of sickness; took no part. (Opinion published 01 N. W. 148.)