Miller v. Van Anken

1 Wend. 516

• Court: New York Supreme Court
• Decided: October 15, 1828
• Status: Published

Opinion

By the Court,

Sutherland, J.

This is an action of debt upon a judgment before a justice of the peace. The defendant in error, Van Anken, was plaintiff before the justice, and Miller, the plaintiff in error, appealed to the common pleas. Van Anken again recovered there, and Miller now brings the writ of error. The whole case resolves itself into this : Whether, when a cause is carried by appeal into a court of common pleas, and the parties there agree to submit it to arbitrators, and expressly provide in the bond of submission, “that the appeal to the court of common pleas shall be, and is thereby discontinued,” and the arbitrators, after hearing the proofs and allegations of the parties, are unable to agree, and make no award in the premises, the original judgment obtained before the justice remains in force, so that an action of debt can be brought upon it. The court of common pleas held that it did ; in which I think they were correct. The appeal having been discontinued by the .express agreement of the parties, and the arbitration being at an end, the judgment before the justice remained in full force. No suit could be sustained upon the original cause of action. The 36th section of the act of April 12th, 1824, does not apply to a case like this. It declares, that an appeal, when duly made, shall be a supersedeas to any further proceedings on the judgment uejore a justice. It contemplates a case where the appeal is prosecuted with effectnot where the parties expressly abandon it.

Judgment affirmed.