Dolph vs. Clemens. he had waived it. BRONSON, J., in Smith v. Barre, 2 Hill, 389, makes the following observation upon this case: "The suit was at an end, unless the parties had afterwards waived the discontinuance by going on with the action by common consent." In the case under consideration, does it appear, as asserted, that the parties mutually abandoned the submission and award, and went into court for the settlement of their differences? We think not. The testimony shows that there was considerable wrangling before the arbitrators, that Dolph was dissatisfied with the award, and repeatedly said he would not pay it. But notwithstanding the quarreling before the arbitrators, they made their award, and a copy of it was left by Clemens at Dolph's house. As far as acts are concerned, this was an end of the matter until the transcripts of the justice's judgments were filed, about a year and a half afterwards. We have [186] not overlooked the action of the circuit court in dismissing the appeals in March, 1850, upon the motion of Clemens' attorney. But Dolph never appeared in court, never agreed to a reinstatement of the cause, or that he would proceed with it as though it had not been discontinued. His declarations that he would not pay the award, that it was outrageous, and all that, did not affect the rights of either party. He might have been sued upon the award, or bond of submission, and made to pay. Objections are taken to the award, that witnesses were not sworn, or competent evidence of any kind introduced, or facts agreed upon. It does not appear upon what evidence the arbitrators based their award. We presume they proceeded regularly and properly, and received all the testimony that was offered. The parties were present, and if there was any error of the arbitrators they should show it. We are not to presume error in their action. Courts make every reasonable intendment in favor of awards, and will support them if possible. Watson on Arb. and Aw., 176; Kyd, id.; Rolle Arb., K., M., N., 12 Wend., 159; 19 id., 285. VOL. IV.-14 Dolph vs. Clemens. Again, it is said the award was not made in time, and therefore was not binding. We do not think that is established by proof. The award does not bear date. The arbitrator, Collins, thinks in one place that it was made shortly after the submission, which was January 2, 1850; and in another place that it was made the last of March or first of April. When first examined, he did not know whether the submission was in writing or not. The recollection of this witness, as well as that of the other arbitrator, is quite too indistinct to guide us to a safe conclusion as to what was done, and particularly as to the time the award was made. They undoubtedly testified the best of their recollection, but the whole transaction had faded very much from their memory. The only remaining point to be noticed is, that, admitting there was a proper and legal arbitration, and a valid award founded upon competent evidence, yet that the complainant Dolph had a full and adequate remedy at law, and a court of equity, therefore, ought not to interfere to grant him relief. We do not, however, think that Dolph could have had [187] full relief upon a motion made in due time in the circuit court. He might, perhaps, by such motion, have set aside the judgments in the circuit court for costs, upon the ground of irregularity; but how would that motion have affected the judgments in the justice's court? Would they have been set aside, by a motion in the circuit court? It will be recollected that transcripts of those judgments were not filed until July 28th, 1851, and September, 1851, a year and a half, or thereabouts, after the rendition of judgment for costs on the dismissal of the appeals. And for that matter, Clemens might have never filed transcripts of them if he had found personal property to satisfy them. We, therefore, do not think that the complainant might have obtained full relief by a motion in the circuit court. Under all the circumstances of the case we think, it equitable and just that the parties be decreed to stand by and abide the Dolph vs. Clemens. award made by the arbitrators. We might, perhaps, have been disposed to have granted the complainant full relief, so far as this suit was concerned, without his paying the amount due by the award, leaving the defendant to his own action at law, had the complainant insisted upon it, but he has not. He prays for relief upon paying the amount before tendered as due upon the award. The decree, therefore, will be that upon the complainant's paying Clemens the amount awarded him, and interest on that sum up to the time the tender was made, and the costs according to the award; that the parties execute mutual releases, and the sheriff's certificates be delivered up and canceled, and that the complainant recover costs upon this appeal. Submission of mat NOTE. DISCONTINUANCE OF SUIT BY SUBMISSION. ter in controversy in pending suit works discontinuance of suit. Muckey v. Pierce, 3 Wis., 307. As well to garnishees as to principal defendant. Graham ex rel. v. Chamber of Commerce, 20 id., 63. And pending appeal. Muckey v. Pierce; Dolph v. Clemens, sup.; Bigelow v. Goss, 5 id., 421, and note. In action not referable by statute, stipulation to refer amounts to submission, and works discontinuance. Messenger v. Broom, 1 Pin., 630. Otherwise as to actions referable. Id. Stipulation to refer to judge, not being valid as statutory reference, operates as discontinuance, even though the parties stipulate that judgment may be entered. Hills v. Passage, 21 Wis., 294, and Bank v. Loan & Trust Co., 22 id., 231 (overruling Dinsmore v. Smith, 17 id., 29). But the stipulation for entry suffices to sustain judgment as upon cognovit. Id. Where matter in dispute is submitted to circuit judge, he acts merely as arbitrator, and no appeal lies from his decision. Lansing's Appeal, 10 id., 120. AWARD. Presumption in favor of awards. Dolph v. Clemens, supra. But they are not invested with the presumptions and legal intendments which pertain to judgments. Pettibone v. Perkins, 6 id., 616. And should be liberally construed to give them effect. Slocum v. Damon, 1 Pin., 520; Bancroft v. Grover, 23 Wis., 463; Pick v. Hydraulic Co., 27 id., 433. Award must conform to submission, and embrace whole subject matter. Geer v. Bracken, 1 Pin., 249; Slocum v. Damon, id., 520; Pettibone v. Perkins, 6 Wis., 616; Darling v. Darling, 16 id., 644; Dundon v. Starin, 19 id., 261; McFarlane v. Cushman, id., 357. As well in common law as statutory arbitrations. Pierce v. Kirby, 21 id., 124. Must be definite and certain, and fix beyond doubt the rights and obligations of parties. McCord v. Sylvester, 32 id., 451. And not conditional, quære? Id. Pratt and another vs. Brown. As to STATUTORY ARBITRATION, see R. S. 1858, ch. 131; 2 Tay. Sts., 1487, which prescribes the manner of submission, the procedure for the arbitrat ors gives the court power to vacate, modify or correct award, and enter judgment thereon. The statute relating to arbitrations does not abrogate common law arbitration. Winne v. Elderkin, 2 Pin., 248; Allen v. Chase, 3 Wis., 249. And award, not attested as required by statute, but otherwise unobjectionable under old statutes (1839, pp. 270-280), so that judgment could not be entered thereon, was held invalid as common law award. Allen v. Chase overruled in part by Darling v. Darling, 16 id., 644, which holds that if intended statutory submission be defective or irregular, award is void; but if award is good, except as to formality of attestation, though judgment cannot be entered upon it, it may be treated as common law award, and action maintained thereon. Award purporting to be act of three arbitrators, good, if signed by two, under R. S. 1849, ch. 4, sec. 1, subd. 3; R. S. 1858, ch. 5, sec. 3; 1 Tay. Sts., 181; Darge v. Horicon Manf'g Co., 22 Wis., 691. See Evans v. James, post, 253. Compulsory arbitration of the differences of members of Milwaukee Chamber of Commerce not valid at common law. Pierce v. Kirby, 21 Wis., 124. In action on award, its invalidity may be shown in defense. Meloy v. Dougherty, 16 Wis., 269; Ferson v. Drew, 19 id., 225. But is binding unless impeached for fraud, mistake, nonconformity to submission, undue influence, or other good cause. Baasen v. Baehr, 7 id., 516. Parol submission good at common law. Winne v. Elderken, supra; R. R. Co. v. Seeger, post, 280. Statutory submission, what sufficient as. Hill v. Taylor, 15 Wis., 190. [188] PRATT and another vs. BROWN. Where an appeal is dismissed in the county or circuit court for want of jurisdiction, no judgments for costs, made on the appeal, can be rendered; even though the failure of jurisdiction is occasioned by the fault or neglect of the appellant. ERROR to Columbia County Court. Suit by Brown against Pratt and Wood, before a justice of the peace of Sauk county, when the plaintiff obtained judg ment for $100. The defendants attempted to appeal, and made their affidavit stating that their application for appeal was made in good faith, and not for delay, etc. Venue changed to Columbia county where the cause was tried, and verdict for plaintiff. New trial ordered at next term, when the plaintiff below moved to dismiss the appeal for insufficiency in the affidavit, in stating that the application, instead of the appeal, was made in good faith. Motion denied, trial had, and verdict for plaintiff, on which judgment was rendered. The cause was taken to the supreme court, and the judgment reversed—the court holding that, owing to the insufficiency of the affidavit, the county court obtained no jurisdiction. The cause was remanded, the court below, on motion of plaintiff below, dismissed the appeal, and rendered judgment for costs of the appeal against the defendant and his sureties in the recognizance for appeal. Collins, Smith & Keyes, for the plaintiff in error. By the Court, WHITON, C. J. The supreme court having decided that the county court did not obtain juris- [189] diction of this case, it follows that the court below committed no error in dismissing it. The only question is in regard to costs. We hold, upon a consideration of our statute, that where the statute did not give an appeal, and the county court dismissed the case for want of jurisdiction arising from that cause, no judgment for costs could be given. Mitchell v. Ken nedy, 1 Wis., 511. But it is contended, that as the failure of the county court to obtain jurisdiction of this case arose from the neglect of the appellant, who is the plaintiff in error, a different rule should be adopted. We do not see as this circumstance can make any difference. The objection is, that the court never became possessed of the case, and it is quite immaterial what the reason is which produced this result. If from any cause the court did not have |