Peele v. North & South Carolina Railway Co.

74 S.E. 592, 159 N.C. 60, 1912 N.C. LEXIS 227

• Court: Supreme Court of North Carolina
• Decided: April 17, 1912
• Status: Published

Opinion

Hoke, J.,

after stating tbe ease: Except by statutory provision, a court bas no power to enter summary judgment on an arbitration and award arising by agreement in pais and not as incident to a pending suit. 'Where suit is pending between the parties, and more especially after issue joined, and there is an agreement to arbitrate, the award to be made a rule of court, in such case the award may be enforced by judgment entered in the cause. There is also ample authority for the position that on action pending and issue joined, though the agreement to arbitrate be made out of court, if. the agreement contains the stipulation, as in this case, “That the award shall be entered as judgment in the cause,” the award, if otherwise valid, may be so entered and enforced by final process. McCall v. McCall, 36 S. C., pp. 80-85; Farrington v. Hamblin, 12 Wendell, 212; Corrigan v. Rochefeller, 67 Ohio St., 354; Rodgers’ heirs v. Nall, 25 Tenn., 29; Wear v. Ragan, 30 Miss., 83; 11 Enc. Pl. and Pr., p. 1049.

It would seem- that the decisions of this State have been against this position, though in much the larger number of them, as in Jackson v. McLean, 96 N. C., 474; Metcalf v. Guthrie, 94 N. C., 449,; Monie v. Austin, 85 N. C., 179, cited and relied on by defendant, the question was not really presented, as the agreement in those cases did not contain the stipulation that the award should be made the judgment of the court in the pending cause; and in Long v. Fitzgerald, 97 N. C., 39, where this provision did appear, there judgment upholding the award was affirmed. The only case we find with us which directly sustains the view that an award pursuant to agreement made by the parties out of court may not be entered as judgment in the cause, though containing stipulation that this might be done, is Simpson v. McBee, 14 N. C., 531. The learned judge in that case recognizes that a different practice may have then prevailed in England under a statute from the time of 9 and 10 William III., ch. 15, and we think that the contrary view presented and sustained by the authorities here tofore cited should prevail in such cases, and, if the award is otherwise valid, that judgment thereon should be entered in the pending cause. This ruling requires and is predicated on the position that the parties are to be afforded opportunity to object to the award and its validity by exceptions and the issues so arising to be determined by the jury if that mode of trial is insisted upon. This was the course pursued in the present case and we find no reason for disturbing the result of the trial. The judgment, therefore, will be affirmed.

No error.