Page images
PDF
EPUB

“subject" of a monarchy corresponds to the “citizen" of a republic. 1

SUBJECT-SUBJECT-MATTER-(See also MATTER, vol. 14, p. 976).-See note 2.

SUB-LEASE.-See LEASE, vol 12, p. 1036.

SUBMISSION --(See also ARBITRATION, vol. 1, p. 646; REFEREES; SUBMIT).- A submission is a contract between two or more parties, whereby they agree to refer the subject in dispute to others and to be bound by their award. The submission itself implies an agreement to abide the result, even where such agreement is not expressed.3

SUBMISSION TO COURT (ON AGREED CASE).

1. Definition, 142.

1. Parties, 150. II. Upon What Submitted, 142.

2. Amendment, 151. I. The Case - Its Nature and 3. Rescission, 152. Purpose, 142.

4. Costs; Argument of Counsel, 2. Requisites-Contents, 143.

152. III. Nature of Controversy to be Sub. VII. Effect of Submission, 153. mitted, 145.

1. Finality, 153. IV. Duty of the Court, 147.

2. Waiver of Objections to Form V. Consequence of Defective Case,

of Action and Pleadings, 149.

154. VI. Practice, 150.

3. Ön Admissions-Estoppel, 156.

1. In re Birdsong, 39 Fed. Rep. 601; amount claimed to be due upon it, or CITIZENSHIP, vol. 3, p. 242.

to have specific performance of a conThus in The Pizarro, 2 Wheat. (U. tract, and so on. Jacobson v. Miller, S.) 227, where the treaty of 1795 with 41 Mich. 93. Spain was under consideration, it was In New York Code.-Section 3253 of held that “the term 'subjects,' when the New York Code of Civil Procedapplied to persons owing allegiance to ure authorizes the allowance of extra Spain, must be construed in the same costs in an action wherein rights of sense as the terms .citizens' or 'in- property are involved, and a pecuniary habitants' when applied to persons value may be predicated of the subjectowing allegiance to the United States.” matter involved. Held, that “subject

British Subjects.-See British, vol. matter involved "refers simply to prop2, p. 570.

erty or other valuable thing, the posLiege-Subjects.--See Liege, vol. 13, session, ownership, or title to which is p. 574.

to be determined by the action, and 2. The constitutions of many of the does not include other property, alstates provide that no law shall con- though it may be directly or remotely tain more than one" subject,” which affected by the result. Conaughty v. shall be expressed in the title. Upon Saratoga Čo. Bank, 92 N. Y. 404. See these provisions there have been nu. also Coleman v. Chauncey, 7 Robt. merous decisions, which will be found (N. Y.) 578. set out under the title STATUTES. In Borst v. Corey, 15 N. Y. 509,

it There are similar provisions using the was held that “subject-matter," as used word "object" instead of “subject.” in section 50 of the code, was synony. See Object, vol. 17, p. I.

mous with the term cause of action The subject-matter involved in a lit- contained in the preceding section. igation is the right which one party "Subject of the Action."'--See Cousclaims as against the other, and de- TERCLAIM, vol. 4. p. 331. mands the judgment of the court upon; “Subject to." --See Implied Coveas, for example, the right in ejectment NANTS, vol. 9, p. 962. to have possession of the lands; in as- 3. From the opinion of the court in sumpsit, to recover a demand; in equity, Whitcher v. Whitcher, 49 N. H. 180; to have a mortgage foreclosed for an 6 Am. Rep. 486.

20, p. 660.

case.

I. DEFINITION.- By the submission of a controversy, as treated in this article, is meant the practice of preparing an agreed statement of the material facts in the cause and submitting such statement to the court for a decision upon the question or questions of law involved therein.1

II. UPON WHAT SUBMITTED—1. The Case-Its Nature and Purpose. – The controversy is submitted upon what is variously known as a case made, case agreed or stated, agreed statement of facts, or special case. This is a written statement of all the facts in the cause, to which is added an agreement between plaintiff and defendant, or their respective counsel, to the effect that the facts are as therein agreed upon and set forth, whereby the necessity of a trial by jury is dispensed with, and a decision is obtained from the court upon the law arising out of the agreed facts. The practice of making a case for the court is said to be a substitute for a special verdict, and is resorted to for convenience and to save the expense of a trial, its purpose being not to make evidence for a jury, but to supersede the action of a jury altogether

1. As to submission to arbitrators, dent's real estate to pay debts, issues see ARBITRATION AND AWARD, vol. 1, are formed and the case submitted p. 646; to referees, see REFEREES, vol. upon an agreed statement of facts, the

proceedings do not constitute an agreed 2. 1 Bouv. L. Dict. 288; 1 Troubat &

Witz v. Dale, 129 Ind. 120. Haly's Pr. (Pa.), § 752 ; Fuller 7'. Tre- Distinguished from Special Verdict.voir, 8 S. & R.(Pa.) 529;, Diehl v. Ihrie, “The case agreed may occur any time 3 Whart. (Pa.) 143; Whitesides v. Rus. after the suit is instituted, as well besell, 8 W. & S. (Pa.) 44. See CASE, vol. fore as after issue joined, whilst a spe3, p. 29.

cial verdict, of course, supposes that A proceeding similar to this and de- the case has been regularly matured, scribed as another method of finding a and, for the most part, that an issue species of special verdict is that in has been joined, which the jury is which trial is had by a jury, and they sworn to try. Some diversities may find a verdict generally for the plain- grow out of this difference worthy to tiff; but subject nevertheless to the be noted. Thus, where the case is opinion of the judge of the court above agreed before defendant pleads, the on a special case stated by the counsel agreement cures the want of a plea, on both sides with regard to a matter and the cause is submitted to the court of law. This method has the advan- upon the agreed facts, without refertage over a special verdict, that it is at

ence to any particular form of defense; tended with much less expense and ob- the general question to be determined tains a much speedier decision. 3 Bl. being whether the plaintiff, upon the Com. 378.

whole case as stated, ought to recover; Now, in England, a case may be sub- but where an issue has been joined mitted to the court on an agreed state- when the case is agreed, the decision ment of facts and with or without for- must be restricted to the issue." 4 mal pleadings. 2 Cooley's Blackstone Min. Inst. (2d ed.) 835. See VERDICT. (3d ed.), 377, n.

Waiver of Jury.-Case made or stated, Under Indiana Rev. Stat., $ 553, pro- is not to be confounded with the waiver viding that parties shall have the right, of jury which exists, by statute, in some with or without process, by agreement states, since in the former no inferto that effect, to submit any matter of ences of fact are admitted, while in the controversy between them to any court latter the parties submit an agreed statethat would otherwise have jurisdiction ment of all the evidence from which upon an agreed statement of facts the court may make any just infersigned by the parties, but requiring an ences of fact and upon them decide affidavit that the controversy is real, the questions of law. Hodge v. First where, upon application to sell a dece. Nat. Bank, 22 Gratt. (Va.) 51; Dearing

by imparting to facts ascertained by mutual agreement, the judicial certainty requisite to enable the court to pass upon the law and give judgment on the whole.1

2. Requisites Contents.—In order to enable the court to pass judgment, when this method of trial is adopted, the case made or stated, being a substitute for and in the nature of a special verdict, and equivalent to a finding of facts by the jury, must set out distinctly all the material facts as agreed upon, but not the evidence from which such facts may be inferred. The nature of the controversy should be described specifically; and the judg

v. Rucker, 18 Gratt. (Va.) 426; Wick- (U. S.) 99; Glen v. Fant, 134 U. S. 398; ham 1. Martin, 13 Gratt. (Va.) 446. Norris v. Jackson, 9 Wall. (U. S.) 125. See Virginia Code 1873, ch. 158, $ Where the counsel for plaintiff and 36; Martinton v. Fairbanks, 112 U. defendant filed an agreement in writS. 670.

ing“ that the evidence, oral and record, 1. McLughan v. Bovard, 4 Watts and the entire records, shall be treated (Pa.) 308; Diehl v. Ihrie, 3 Whart. as a case stated, judgment to be en(Pa.) 143

tered thereon by the court according The object of a case made is to en- to its views of the law and facts, each able parties, without resort to legal party reserving the right to sue out a process or formal pleadings, to submit writ of error,"and the court afterwards to the court for its adjudication some entered judgment on the case stated alleged cause of action or claim for re- for the plaintiff, it was held that the lief. Williams v. Rochester, 2 Lans. agreement was bad as a case stated. (N. Y.) 169.

Union Sav. Bank v. Fife, 101 Pa. St. 388. "A case stated is a substitute for a A case stated must contain a full and special verdict, adopted for convenience certain statement of all the facts beto save the labor and expense of finding longing to the case, so that, when a the same facts by the jury in the form of judgment is entered thereon, it will be a special verdict." Rogers, J., in White capable of enforcement to the same sides v. Russell, 8 W. & S. (Pa.) 44. extent as though reached by the ver

In McKethan v. Ray, 71 N. Car. 165, dict of a jury. Washburn v. Baldwin, it was said that the object of section 10 Phila. (Pa.) 472. 315 North Carolina Code Civ. Proc., In a case made or agreed, the parties. is simply to dispense with the formali- need not agree upon all the facts in ties of a summons, complaint and an- the case, but may state such facts as swer, and permit the parties to agr are pertinent to a particular question upon the facts for the judgment of the of law, and agree that the judgment be court.

entered for the plaintiff or defendant, Loss—Destruction. A case stated is according as the opinion may be in a substitute for a verdict; and when favor of the one or the other party lost or destroyed, and the parties can- upon the facts as stated. Stockton v. not agree on a new one, the cause goes Copeland, 23 W. Va. 696. to the jury as if no case had been made. New York Code Civ. Proc., § 532, It is wrong to appoint a commissioner provides that in pleading a judgment, to take testimony of its contents, and or other determination of a court or give judgment on his report. Cook v. officer of special jurisdiction, it is not Shrauder, 25 Pa. St. 312.

necessary to state the facts conferring 2. Old Colony R. Co. v. Wilder, 137 jurisdiction; but the judgment or deMass. 536; Goodrich v. Detroit, 12 termination may be stated to have been Mich. 279; Ford v. Cameron, 19 Mo. duly given or made. This rule may App. 467; Union Sav. Bank v. Fife, with propriety be applied to the state101 Pa. St. 388; Helser v. Coyle, 58 Pa. ment of facts required in a case agreed St. 461 ; Berks County v. Pile, 18 Pa. as required by section 1279; whatever St. 493; Holmes v. Wallace, 46 Pa. St. is a sufficient statement of facts, ac266; Newark, etc., R. Co. v. Perry cording to the former, to impliedly County, 30 Ohio St. 120; Raimond v. allege jurisdiction, is a sufficient stateTerrebonne Parish, 132 U. S. 192; Burr ment of facts, according to the latter, 1. Des Moines Nav., etc., Co., I Wall. that jurisdiction existed. There is no

ment to be given for the party prevailing and the amount thereof,
or the mode by which it can be liquidated, should also be stated.1

as

reason for greater particularity in ad- or is a fact which is susceptibleof proof,
mitting facts for the submission of a one way or the other, the usual course
controversy_than in alleging them in is for this court to discharge the case
pleading. Brownell z. Greenwich, 114 stated and remand the unsettled ques-
N. Y. 518.

tion of fact to be tried in the superior
The court will not assume the office court by the proper tribunal." Old
of a jury in deciding upon a special Colony R. Co. v. Wilder, 137 Mass.
case submitted by agreement of the 537, citing Gregory v. Pierce, 4 Met.
parties, when the principal questions (Mass.) 478; Lefavour v. Homan, 3
are questions of fact, to be decided up Allen (Mass.) 354; Morse v. Mason,
on the conflicting testimony of wit 103 Mass. 560; Meserve '. Andrews,
nesses whose credit is made a matter of 104 Mass. 360.
question. Brockbank v. Anderson, 7 Examples.—Where a suit was brought
Scott N. R. 813; 13 L. J. C. P. 102. to recover a statutory penalty, and the

Where there is an essential fact in cause was submitted to the court on a
dispute, as, for example, whether nat. case stated, which failed to show wheth-
ural gas is a volatile substance or not, er the acts relied on to establish the
the supreme court will quash a case defendant's liability took place within
stated. Ford v.Buchanan, 111 Pa. St. 31. the two years provided by law for the

The United States Supreme Court prosecution of such actions, or in what
on a case stated can only give judgment state they took place, such case is not
where facts alone are stated. Should sufficient to sustain a judgment. Com.
there be any question as to the effect1. Howard (Pa. 1892), 24 Atl. Rep. 308.
or competency of evidence, or An agreed case occupies the same
to any rulings of the court below on footing and stands in lieu of a special
evidence examined, the case is not a verdict, and the court pronounces the

case stated." Burr v. Des Moines conclusion of law precisely as if a jury
Nav., etc., Co., 1 Wall. (U. S.) 99; Pom- had found a verdict in that form. In or-
eroy v. State Bank, 1 Wall. (U.S.) 592. der that judgment may be pronounced,

In an action against a guardian for all the facts necessary to a determina-
value of services voluntarily rendered tion of the case must be definitely as-
in rearing and educating his ward, certained; if there be any ambiguity
over and above the value of services or omission of facts necessary to a re-
rendered by, such ward, an agreed covery, or any lack of clearness and
statement of facts was submitted which certainty on material points, the judg.
set forth the character, but not the ment cannot be allowed to stand.
value, of such services. It was held Therefore, in an action to attach the
not to be error for the court, upon the separate property of wife, where the
defendant's denying that the plaintiff agreed statement did not show wheth-
was entitled to more than the services er the debts were those of the husband
of the ward, to find for the defendant, or the wife, or whether the latter had
since the agreed case omitted to set any separate estate, or whether the
forth essential facts, viz., the respective debts were evidenced by notes, or, if so,
values of the plaintiff's and ward's whether the notes were signed by hus-
services. Brown v. Rogers, 61 Ind. 449. band or wife or both, the cause was re-

"A statement of facts by the parties, manded. Gage v. Gates, 62 Mo. 412.
or a finding of facts by the circuit See Carr v. Lewis Coal Co., 96 Mo.
court of the United States, is strictly 149; 9 Am. St. Rep. 328.
analogous to a special verdict, and Where, on appeal, the statement re-
must state the ultimate facts of the case fers to certain exhibits said to be an-
presenting questions of law only, and nexed, but which are not, and where it
not be a recital of evidence or of cir- is left to either party to add to the facts
cumstances, which may tend to prove in the case agreed, the case will be re-
the ultimate facts, or from which they manded — such addition being wholly
may be inferred.” Gray, J., in Raimond inadmissible, since the controversy is
t'. Terrebonne Parish, 132 U. S. 192. to be decided solely upon the facts con-

Where Material Fact Is Omitted.-In tained in the agreed case. Piedmont
Massachusetts, it is said that where a R. Co. v. Reidsville, 101 N. Car. 404.
material fact is “inadvertently omitted, 1. Berks County v. Pile, 18 Pa. St.

III. NATURE OF CONTROVERSY TO BE SUBMITTED.-In order that the court may have jurisdiction to hear and decide a controversy submitted upon an agreed statement of facts, it is primarily essential that such controversy be real, not fictitious, and the proceedings in good faith to determine the rights of the parties, i to

493; Williams 7'. Rochester, 2 Lans. court should assess the damages. Hal(N. Y.) 169. See Kennedy v. New deman v. Chalmers, 19 Tex. I. York, 79 N. Y. 361.

Nominal Damages.-If a case is subIf a special case is made in a cause mitted to the court upon an agreed pending, the nature of the relief sought statement of facts, in which the damis sufficiently indicated to the court by ages are not fixed or an assessment the form of action. If, however, pro- thereof provided for, the judgment, if cess and pleading are waived and the for the plaintiff, will be for nominal parties come before the court upon a damages only. McAneany v. Jewett, naked statement of facts, the record 10 Allen (Mass.) 151. does not show the relief desired, unless Form; Signature. It has been held it is expressed in the agreement itself. that a case made before trial must be In such case the court acquires juris. signed by each of the parties, or by diction of the parties and the subject- their attorneys, in order that it may be matter by force of the agreement, and heard by the court. Farrand v. Bentif nothing is contained therein as to ley, 6 Mich. 280; Branchardiere v. the judgment or decree to be rendered Elvery, 18 L. J. Exch. 383. upon the facts, the court is powerless 1. Washburn v. Baldwin, 10 Phila. to act. Central City Water Co. 7'. (Pa.) 472; Williams v. Rochester, 2 Kimber, i Colo. 475.

Lans. (N. Y.) 169. In Overman v. Sims, 96 N. Car. 4,51, Where the proceedings on their face Smith, J., said: “We do not approve appear to be an actual adversary proof this method of presenting a mere ceeding, with no indication of a feigned narrative of the facts, out of which the action, the agreement as to the evicontroversy springs, without any state. dence will not change the character of ment of the subject-matter of conten- the case nor overturn the presumption tion, and the conflicting claims of the that there is an actual controversy. litigants to be passed on and decided. Witz v. Dale, 129 Ind. 120. While formal pleadings are not re- Where the judgment is genuine, an quired, nor any preliminary process, to agreed case will not be considered ficsecure jurisdiction, the statute mani. titious merely because it contains no festly contemplates the existence of a reference to the rights of third parties. controversy, and the case agreed should State v. Wilson, 2 Lea (Tenn.) 204. set out its nature, so that the court may “This mode of procedure is not inunderstand what is intended to be sub- tended to provide for the submission mitted, and thus render an intelligent of questions of law for the opinion of decision.”

the court merely, without a case in A case stated should “specifically which a judgment might be rendered, describe the controversy arising upon in accordance with its opinion, legally the facts, and the rulings to be made, determining the rights of the parties. according to the opinion of the court, It does not authorize a submission of of their legal operation." See Moore questions in cases that are merely an7. Hinnant, 87 N. Car. 505; McKethan ticipated, nor of cases where the facts 1. Ray, 71 N. Car. 165. But there are are disputed, nor is such submission precedents where jurisdiction has been intended to be merely advisory as to assumed and exercised, and the nature the rights of the parties. It is rather a of the controversy inferred from the substitute for an action, and its effect mere statement of facts. Hager v. upon the rights of the parties is the Nixon, 69 N. Car. 108; Lewis v. Wake same as that of an action. It is a short County, 74 N. Car. 194.

and convenient mode for the final adA court is not bound to accept the judication of the case submitted." Day submission of a cause to its decision C. J., in Newark, etc., R. Co. v. Perry without a jury, where the assessment County, 30 Ohio St. 120. of unliquidated damages is involved ; Where it appeared that the same atbut if the submission is accepted, the torney prepared the statement, and 24 C. of L.-10

145

« PreviousContinue »