Allen v. Chase , 3 Wis. 249 ( 1854 )

By the Court,

Sjuith, J.

This was an action brought by the plaintiff in error against the defendant in error, to recover the amount of an alleged award, upon a submission dated the 11th day of March, A. D. 1847. It is in the words of the statute, but was not acknowledged before a Justice of the Peace as the statute in force at the time required. O. R. S. § 279-280. The submission provided that the award being made and reported within sixty days to the District Court of Rock county, the judgment thereof should be final. The statute also contaius many other provisions in regard to the confirmation and execution of the award of the court. It further appears that after several extensions agreed upon by the parties, of the time for making and reporting the award, the same was made and reported to the District Court of Rock County, when the said plaintiff moved the court for the acceptance and confirmation of the award; which said motion was denied by the said court. Tbe plaintiff now brings bis action to cover tbe amount of tbe award, insisting tbat tbougb tbe same may not be good as a statutory, yet it is valid as a common law award. We tbink differently. It is evident tbat tbe parties bere intended to make a submission in conformity with tbe statute, and .in" stead of covenanting to pay tbe award at all events, they both sought to avail themselves of tbe supervisory control of tbe court to whom tbe award was to be reported, and which must be accepted and confirmed by tbe court, before it could have any validity. It has been held tbat when arbitrators are regulated by statute like ours, tbe parties may nevertheless submit as at common law; tbat tbe statute only provides a new, but does not abrogate tbe old mode. But parties must pursue one mode or tbe other. Having attempted to comply with tbe statute, and failed, they will not be permitted to transform a statutory submission and award into one at common law. This would be making a new contract between tbe parties.

We tbink tbe evidence offered in tbe court below was properly rejected, and tbe judgment ought therefore to be affirmed.

Neither brief or argument was submitted on tbe part of plaintiff in error, but we have taken into consideration tbe only question which tbe record seemed to raise, and disposed of it as well as we could. (See 20 Pick 480 ; O. Rev. Stat. 270 — 280.