Greenawalt v. Hamilton , 4 Pennyp. 495 ( 1884 )

the opinion of the Court was delivered by

Sterkett, J.:

The single question presented by this record is whether the learned judge erred in sustaining the demurrer to defendant’s special plea, wherein it is averred that “by consent in open court, all matters at variance between the parties in this case,” were referred to the arbitrament of John Armstrong and II. B. Kuhns, esquires, “whose award shall be final and conclusive, without exception or appeal; and that afterwards the said arbitrators, having given clue notice of their meeting in pursuance of the aforesaid submission, and having heard the parties, their proofs, and allegations, did award and find for the' defendant,” &c.

The matters of fact thus pleaded are not only admitted by the special demurrer, which assigns as the sole cause thereof “ that the plea was too late,” but they are fully substantiated by the record itself. It also appears that the award was filed and judgment entered thereon August 21, 1880. Before the award, was filed, but after it was made and ready for delivery, the plaintiff below attempted to revoke the submission by serving notice to that effect on the referees ; but in this he was clearly too late. The submission had been executed, and hence it was beyond the power of either party to revoke it: Shisler v. Keavy, 25 P. F. Smith, 79. The judgment on the award, as appears by the record, was regular and valid, and so remains, notwithstanding the irregular proceeding which followed its entry. If the plaintiff below was aggrieved by the award, he’should have applied to the court to set it aside, but, instead of doing so, he appears to have acted on the mistaken belief that his revocation was in time, and therefore the award was inoperative. The learned judge, in his opinion overruling the demurrer, concedes that the attempted revocation was ineffectual, but he holds that defendant below, by acquiescing in the subse: quent proceedings, treated the award itself as a nullity, and on that ground chiefly he sustained the demurrer: In this we think there was error. The award, and judgment entered thereon, could not be thus set aside or expunged from the record. If any valid reason existed, dehors the record, for setting either or both of them aside, the plaintiff below should have proceeded in the regular and orderly way: and, in view of the long acquiescence of the defendant, it is, perhaps, not too late for him to do so yet. In passing on the demurrer, it was unnecessary for the court to go outside of the facts averred in' the special plea. As we have already seen, they were admitted by the demurrer and fully substantiated also by the record; and, upon them, the judgment on the demurrer should have been for defendant below.

If we -were to affirm this judgment, the record would present the anomaly of two separate and distinct judgments in the same case: one for defendant, on the award of the referees, and the other for plaintiff, on the verdict of the jury.

Judgment reversed, and all proceedings subsequent . to the entry of judgment on the award set aside, and record remitted.