CHAPTER XII.

SUBMITTING CONTROVERSIES WITHOUT ACTION.

ARTICLE I.

IN WHAT CASES, AND WHAT QUESTIONS SUBMITTED.

Section 1. Civil actions. In the various transactions of life, controversies frequently arise betwixt parties who agree as to the facts of the transaction, but cannot agree as to their respective legal rights under such state of facts. To avoid the delay and expense incident to ordinary proceedings in such cases, the Code has provided that parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. Code, 372. This amicable remedy, thus provided by the Code, is authorized only where an action might have been brought in the above cases. And the submission can be made only to a court which would have jurisdiction of such action. American Transportation Company v. Assessors of Buffalo, Buffalo Super. Ct. G. T. 1855, Clint. Dig. 3082.

Section 2. Who may submit. The mode of proceeding, in the submission of a controversy, is essentially founded upon the consent of the parties, and any one capable of giving a legal consent may be a party to a submission. An infant, being incapable of giving a legal consent to an agreement to submit, cannot be a party, and it seems the court has no power to appoint a guardian for such purpose. Fisher v. Stilson, 9

Abb. 33.

Section 3. What cannot be submitted. Section 372 of the Code does not authorize the submission of actions, the remedy being strictly confined to those cases in which no action has been brought. If the submission of the case did not of itself work a discontinuance of the action, it must do so when followed by a judgment, and meanwhile it would operate to suspend it. Van Sickle v. Van Sickle, 8 How. 265.

What can or cannot be submitted - Change of parties.

In questions of difference, in which an infant is legally interested, there can be no submission of such questions, under the above section of the Code. They must appear in the controversy by guardians appointed for that purpose. Code, § 115. But the court, or a judge, is not authorized, either by section 115 of the Code, or by statute, to appoint a guardian for an infant, to appear for him in a controversy, without action. It hence follows that, in controversies where infants are legally interested, the only appropriate remedy is by action. Fisher v. Stilson, 9 Abb. 33. Compare, however, Brick's Estate, 15 Abb. 12.

Section 372 of the Code makes no provision for the submission of a question to the court, merely that its opinion may be had in a case where the question has not as yet arisen, and where no judgment is demanded. The court is only authorized to render a judgment, as if an action were actually pending. Hobart College v. Fitzhugh, 27 N. Y. (13 Smith) 130. The court will not entertain a case where there is no matter or question in difference or controversy, between the parties submitting it, and where the object is merely to obtain the opinion of the court for the purpose of settling a doubt that may have arisen in regard to some matter or thing, or as to the construction of some instrument. Ib. See Doe ex dem. Duntze v. Duntze, 6 Man. Gr. & Scott, 100. The court said: "If the court were to entertain the question, every petty doubt that might arise upon a will, or a marriage settlement, might be made the subject of discussion before it. Conceiving it, therefore, to be inexpedient that the time of the court should be occupied with these speculative matters, we decline to give any opinion upon the case." Ib.

Section 4. Change of parties. Where a controversy has been submitted, new parties cannot be brought in without their consent, and the provisions of section 122 of the Code, requiring the court, under certain circumstances, to cause the absent parties to be brought in, have no application to cases submitted under section 372. Parties to a question of difference must agree upon a case, and the consent of the parties is essential to the validity of the agreement. Hobart College v. Fitzhugh, 27 N. Y. (13 Smith) 134.

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Proceedings on submission, and proof that controversy is real.

ARTICLE II.

PROCEEDINGS ON SUBMISSION, AND PROOF THAT CONTROVERSY IS REAL.

Section 1. Affidavit. The mode of proceeding in the submission of controversies without action requires the statement of facts agreed upon by the parties to be verified by affidavit or, in the language of the Code, it must appear by affidavit that the controversy is real and the proceedings in good faith, to determine the rights of the parties. Code, § 372. This requirement of the above section limits the remedy to cases of real controversy, and to such cases only was it ever intended to apply.

Section 2. What papers furnished. The verified statement of facts agreed upon, and all the papers necessary for the argument of the case, must be furnished, duly printed, as in cases upon appeal, by the party occupying the position of plaintiff in the controversy. Sup. Ct. Rule 50.

Section 3. Must be case. In every question of difference submitted by parties, under section 372, a case must be presented for adjudication, alleging a cause of action or claiming relief. A mere difference of opinion between the parties, on the question propounded to the court, is not sufficient. The controversy must be real, and a case presented in which a judgment may be rendered in favor of one party and against the other of the parties to the submission. The nature of the judgment asked for must be indicated by the case. Williams v. City of Rochester, 2 Lans. 170.

Section 4. Submission is limit of power. The court in its judgment is confined to the statement of facts submitted, and has no power to grant relief not arising out of, or inconsistent with, such statement of facts. Smith v. Hall, Buffalo Sup. Ct. G. T., June, 1857, 4 Clint. Dig. 3082.

Section 5. Mode of trial. In a controversy submitted under section 372 of the Code, the court, at general term, has power only to determine the questions of law arising upon the agreed state of facts, and cannot, in any case, refer the facts to a jury, or vacate the submission. Lang v. Ropke, 1 Duer, 701; Neilson v. Commercial Mutual Insurance Co., 3 id. 455; Clark v. Wise, 46 N. Y. (1 Sick.) 612.

Relief from submission-At what term of court - Trial.

Statement of Case.

(Entitle as if in an action.)

Case agreed upon in a controversy submitted without action. A. B. claims to recover of E. F.

dollars (or state the

things claimed), and E. F. resists the said claim.

The following are the facts upon which the said controversy depends: (State clearly and concisely as may be every fact essential to the claim or the defense.)

None of the admissions herein contained are in any wise to affect either party, or to be regarded as made, except for the purpose of this submission of this controversy.

The questions submitted to the court upon this case are as follows: (State with particularity and accuracy all questions intended to be raised on the facts submitted.

(Date.)

(Venue.)

(Signature of both parties.)

Verification.

A. B. and E. F., being duly severally sworn, says each for himself, that the controversy mentioned in the foregoing case is real, and the proceedings in good faith to determine the rights of the parties. (Signatures.)

(Jurat.)

Section 6. Relief from submission. Neither party to a submission can be released from the legal effects of the agreement, by the court on motion, and it is only upon the most satisfactory evidence of fraud or mutual mistake that relief will be granted by a court of equity, and even then only in a suit instituted for that purpose, and on a complaint properly framed. The nature of the equitable relief thus afforded is in a form in which the decision of the court may be reviewed, and, if erroneous, reversed. Lang v. Ropke, 1 Duer, 701.

Section 7. At what term of court. On a case being prepared and set down for argument, it assumes the character of an. appeal from an ordinary judgment on a question of law; and, as there are no facts to be passed upon by a jury, the case is properly heard and determined by the court, at general term. This is, in fact, required by the express language of the Code, section 372.

Section 8. Questions of law alone considered. A case submitted under section 372 of the Code should present nothing but questions of law arising upon undisputed facts, or the case will be dismissed. Clark v. Wise, 46 N. Y. (1 Sick.) 612; reversing S. C., 39 How. 97; 57 Barb. 416.

New parties-Costs-Judgment - New trial in ejectment.

Section 9. New parties. No provision has been made in the Code, or elsewhere, by which new parties to an agreed state of facts may be brought in, and hence no one can be made a party without his consent. See ch. I, § 4, ante, 217.

Section 10. Costs. The hearing, at a general term, under section 372, is, in effect, a trial of the issues of law arising upon the agreed statement of facts, and a trial fee will be allowed. Costs "for any proceeding prior to notice of trial," as in cases of appeal, will not be allowed. Neilson v. Mutual Insurance Co., 3 Duer, 683.

Section 11. Judgment. After a hearing and decision upon the questions of law arising upon the admitted facts, by the general term, judgment must be entered in the judgment book, as in other cases, the nature of the judgment being the same as that given on appeal. The case, the submission, and a copy of the judgment constitute the judgment roll. Code, § 373.

Section 12. Enforcing judgment. The judgment rendered in the decision of a submitted case may be enforced in the same manner as if rendered in an action. Code, § 374.

(Title of cause.)

Judgment.

(Caption.)

day of

A case agreed upon between the parties above named, without action, dated the 18 , and duly verified, having been submitted to this court, and, after hearing M. N., for the said A. B., and O. P., for the said E. F., and due deliberation having been had thereon,

It is ADJUDGED (state the relief granted, as in other judgments).

Section 13. Appeal from judgment. So, an appeal may be also had from the decision of the general term, to the court of appeals, in the same manner, and with like effect, as from a judgment rendered by the general term in ordinary actions. Code, § 374.

Section 14. New trial in ejectment. The provisions of the Revised Statutes (2 R. S. 309, § 37), granting a new trial, as of right, in ejectment cases, do not apply to a judgment rendered on a case submitted without action. The proceeding is not an action, either within the former technical meaning of an action, or within the terms of the definition given by the Code (§ 2), and, therefore, is not embraced in the above provisions. Lang v. Ropke, 1 Duer, 701.