Bulsom v. Lampman ( 1863 )

By the Court,

Kingman, J".

In August, 1859, the defendant in error brought suits in the district court of Anderson county, against the plaintiff in error. To this a demurrer was interposed, and while the c'ause was in this condition at the September term A. D. 1859, the following journal entry was made:

“ And now comes the above parties, by their attorneys, and this cause, by agreement, is continued to abide the decision of referees.”

This is the only mention whatever made in the record of •any reference of the case.

On the 7th day of September, 1860, a report was filed by three persons, styling themselves arbitrators, awarding to defendant in error in the two cases, the sum of two hundred and fifty-four dollars and sixty cents, and the costs of the two suits. On the same day a motion was made to set aside the award, for various eauses, which was overruled, and the demurrer was also overruled, and judgment entered on the award in favor of defendant in error against the plaintiff in error, who brings the case to this court for revision.

The record is so imperfect and so confused that it is difficult to ascertain exactly the true state of facts presented in it. It would appear that there were two suits between the same parties, and that both cases were orally submitted to referees. The terms of the submission do not appear, nor does it in any way, except by inference, appear what was submitted.

The most favorable view of it that can be taken for defendant in error, is that it was an oral submission by the parties in open court, of the issues in the action, or actions under section two hundred and ninety-two of the code. There is no other possible view of the case, derivable from the record, that would in any way justify a judgment by the court upon the award.

Admitting, then, that the record will bear this interpretation, it is proper to inquire what was submitted. The code provides for submitting issues of law and issues of fact, or both, orally to be submitted, in open court, to referees. (See § 292.)

The only issue in this cause ivas one of law purely, presented by the demurrer, and this issue being the only one between the parties, was the only one submitted, and the only one the referees could pass upon, upon such a submission as we have supposed may have been made from the record. The report of the referees is as to the two suits, and is one finding facts only. No decision upon the issue of law submitted is made, but a decision on an issue of fact not submitted to them for their action, and their report should have been set aside by the court below. The judgment below was upon the award, which includes both cases.

It is, therefore, ordered by the court that the judgment in the district court be reversed, and the cause remanded with directions to set aside the report made in the case, and for further proceedings.

Bailey, J. concurring. Chief justice Cobb not sitting in the case, it having been previously argued at a term before he took his seat upon the bench.