Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-23

September Term = KnoxviIe,
1870.


NO. IS.
j. II. and w. A. SuEo8E vs.. William lack
references 70 srbitrafors. without 4 stinni,.
ton that the award Is to be made the iudrmen,
OF the court, Is o dfscoRtinuancc of the suit-
That Il should have this eject it is not nee.
essary that IL be valid Submission nor that
there should be valid award but The voinn.
tary act OF submitting the cause TO another tn.
bunal; Is sufficient.
: Case gserruled. Norwood vs.. Stephens. Ms
A plea puts darrein continuance is not since
ASA
From the Circuit Court of Cooke county.
Before ]. P. Swami, j.
Barton, for plaintiff in error.
Thornburg & Mcfarland, for defend.
ants. -
OPINION.
The queaRn raised In the record in this
cause, is whether the submission of the
matters in controversy between parties,
In cause pending in courf, &c arbitra-
ton, without providing that the award
shall be made the judgment of the court
operates discontinuance of the cause.
Such was the charge of his Honor, the
Circuit Judge, before whom the cause
was tried, and upon that charge the jury
found IN favor of the defendant, and the
plai2tiffs bring the cause here, by appeal
ia the nature of a writ of error, for tie
purpose of reversing the judgment of the
court below.
Numerous authorities have been cited
to sustain the charge of the Circrit judge,
and we have examined other authorities
besides those cited, and 50 far as we have
had access to the decisions of our own
and other courts, with tho single excsp-
ton of the manuscript case referred to
by the counsel for plaintiffs, they are uni
form in holding that the submission to
arbitration, is the net of the parties which
Gusts the court, in which the cause may
be pending, of its jurisdiction, and works
q discontinuance.
In none of them is it held that it is
necessary to this end that the arbitrators
should take any steps in the case, except
In the case referred to by plaintiffs coun-
sci, of Norwood vs.. Stevens, decided 8.
the last term of this court, and that
opinion was dissented from by one of the
three judges then presiding.
Upon a careful examination of the two
the weight of authority and eason is in
favor of the dissenting opinion. See 10
Yerg. 4S9; 2 Hum. 5l6; 9 Hum. 90, 9
Hum. 142; Cold. 200; 2 Wend. SOC. In
thecase in 9 Hum, the court say, ''The le-
gal consequence of discontinuance does
not at all depend upon the validity of the
submission, as between the parties to the
suit, nor upen the validity of the award,
but upon the simple fact that the parties,
by their own voluntary act, have with
drawn the cause from the jurisdiction of
the court in which it was pending, and
and submitted it to another tribunal of
their own selection"
The other cases referred to sustain the
proposition that il is the voluntary act of
parties in submitting their cause to
another tribunal that operates to discon-
tinue it.
The counsel for plaintiffs also insists
that the plea puts darrein continuance, is
waiver of all former pleas, and that the
defendant should have been held liable
for all costs accrued up to the time of the
fling of his last plea.
Such would have been the effect at
common law, but by the provisions of
S2,S92 of the Code, 'Either party may
on good cause shown, and by leave of
the court make supplemental pleading,
alleging any material facts which have
happened or have come to his knowledge
since the fling of his former pleadings,
nor shall such new pleading on the part
of the defendant be considered q waiver
of former defences.
We are therefore of opinion, that there
is no error in the judgment of the court
below, and affirm it.
-- DEADRRIcE, Judge.
A true copy.
Test ]. F. DEADERICK, Clerk.