Crooker v. Buck , 41 Me. 355 ( 1856 )

Cutting, J.

During the pendency of this suit in Court, the parties referred the same cause of action, by consent, before a justice of the peace, agreeably to R. S., c. 138.

At the trial, the defendant introduced the agreement and the report of the referees, as to the execution of which there was no controversy, and thereupon contended that they operated as a discontinuance of the suit.

That a submission at common law would have that effect, has been settled by a series of decisions in the State of New York. Camp v. Root, 18 Johns. 22; Ex parte Wright, 6 Cowen, 399 ; The people v. Onandago C. P., 1 Wend. 314; Larkin v. Robbins, 2 Wend. 505 ; Towns v. Wilcox, 12 Wend. 503; Wells v. Lain, 15 Wend. 99; West v. Stanley, 1 Hill, 69. And recognized as law in this State, in the case of Moores v. Allen, 35 Maine, 276.

These decisions were based upon the consideration, that the parties had selected another tribunal to settle the controversy, and taken it from the jurisdiction of the Court where the cause, or the subject matter of it, was originally pending.

Does the submission under the statute vary the principle? All proceedings under the agreement are wholly disconnected from the original suit. Referees are substituted for the Court and jury, with full authority to decide the law and the facts, and if the Court have any supervisory power, it can be exercised only when the report shall have been returned to a term of the Court agreed upon in the submission, and after being entered upon the docket as an original entry. The record forms the basis of an independent judgment.

But the motion for a discontinuance was made by the defendant, and whether rightly overruled, or otherwise, the ruling being in favor of the plaintiff, who has no cause on this point to except, we place our decision on other grounds, which we will now proceed to consider.

It appears that after the motion was denied, the report was offered under one of the specifications, in bar of the suit; that after certain preliminary rulings, the cause, then on trial, was suspended, and the report was presented to the Judge for his acceptance, to which objections were filed, arguments heard, and the report finally accepted; that it was again offered in bar, and ruled to be effectual for that purpose; to which ruling the plaintiff excepts, and the question by him presented is, was this ruling correct ?

We have already seen that a submission under the statute is an independent proceeding, having no relation to, or connexion with the original action. It requires another entry, 'and is the subject matter of an independent judgment and execution. Although the report was accepted, it does not appear that judgment was rendered upon it, before it was offered in bar. No judgment could have been rendered, except by consent, without allowing to the aggrieved party the time prescribed by statute, in which to present his exceptions. R. S., c. 96, § 17. And exceptions are allowed in such cases. Harris v. Seal, 23 Maine, 435; Lothrop v. Arnold, 25 Maine, 136. Not until the report had passed through all the ordeals of the law, could it become an “absolute verity,” and entitled to record, when it could not be impeached or avoided collaterally, but would remain in full force until reversed. Bannister v. Higginson, 15 Maine, 73 ; Granger v. Clark, 22 Maine, 128. The report, when offered in evidence, was not of such a character, and possessed not all the elements of maturity. The Judge erred therefore, in permitting it to go to the jury, and in his construction as to its force and effect. By the agreement of the parties, “if any of said rulings were erroneous, a new trial was to be had,” it becomes unnecessary to examine the further rulings in the progress of the cause. If hereafter, on another trial, the report shall have matured into a judgment, and shall then be offered, it may be worthy of consideration by the plaintiff as to what may be its legal effect, even should the ruling as to a discontinuance be as favorable, as on the former trial.

Exceptions sustained.

Tenney, C. J., and Rice, Appleton, and May, J. J., concurred.