Triplett v. Sims

89 Mo. App. 326, 1901 Mo. App. LEXIS 162

• Court: Missouri Court of Appeals
• Decided: April 23, 1901
• Status: Published

Opinion

GOODE, J.

This case vividly illustrates the protean phases which litigation presents and the novel questions that are constantly arising. The original action before the justice was unlike anything theretofore known and the circumstances attending its progress were equally strange! It is obvious there was literally nothing in the plaintiff’s alleged cause of action against the defendant. So, the agreement to improvise a temporary justice of the peace out of Cluster, who should act for the nonce in the place of Tomlinson, stands by itself — thing apart.

If he was a de facto officer, the appeal from his judgment was regular, the circuit court acquired jurisdiction, and the judgment of dismissal finally disposed of the controversy, as the plaintiff did not bring the case up.

Appellant’s present position is that the stipulation for Cluster to try the case was a common-law arbitration, that his judgment was an award, and the plaintiff has a right to maintain this action to recover the amount of it.

Common-law arbitrations still exist and are as good as any, when the parties agree to them. Searles v. Lum, 81 Mo. App. 601; Hamlin v. Dupe, 28 Mo. 166; Williams v. Perkins, 83 Mo. 379. But it is preposterous to say the stipulation for the trial before Cluster was a common-law submission and arbitration. It was neither more nor less than an agreement for Cluster to áct as justice of the peace instead of Tomlinson; in fact he subscribed all of his entries, including the judgment, “B. E. Tomlinson, J. P., by A. B. Cluster, acting for said J. P.,” or in similar formulas. It was the understanding that either side might take a jury and an appeal. The controversy was not determined by Cluster as an arbitrator, nor determined by him at all but by the second jury. .

A submission to arbitration is a contract. Morse on Arbitration and Award,, pp. 3 and 36. It must have all the ele; meats necessary to a contract, of which a fundamental one is, that the minds of the parties must have met in an agreement to do a specific thing, in the present ease to submit their dispute, to arbitration. It is beyond peradventure that no such agreement or understanding existed. The attorney for the plaintiff, who made the stipulation, swears emphatically, the idea that it was an arbitration never occurred to him until after the trial was begun and only then by the construction he placed on the document. The subject of arbitration, whether common law or statutory, was not bruited during the negotiations which, culminated in the consent that Cluster might sit. If the affair was anything better than a mock trial and a farce, it was because Cluster was a de facto magistrate. We think he was not even that, „ which is the most favorable theory for the appellant. If he was, this proceeding will not lie; hence, in any event the judgment is right and is affirmed.

All concur.