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N. W. 964, Ann. Cas. 1912A, 1259, this very question was considered. There, as here, the court had before it a stipulation providing for the submission of the cause to arbitration while the case was pending at issue in the trial court.

The Supreme Court of Iowa said:

"Where such an agreement has been entered into, and also that judgment shall be entered by the court in which the action is pending, the only fair inference is that the parties intended that the action be continued for the filing of the award and the entry of judgment thereon. True, there was no order or reference, nor was there any entry of dismissal. For all that appeared of record in the case, it was pending up to the entry of the judgment on the award, and both parties so treated it until the final hearing."

Holding to the effect that where an agreement is entered by the parties to a pending suit directing that judgment may be entered pursuant to arbitration and award, neither the submission nor the award operates as a discontinuance of the suit. (Callanan v. Port Huron Ry. Co., 61 Mich. 15, 27 N. W. 718; Wilson v. Williams, 66 Barb. 209.)

In the case of Hearne v. Brown, 67 Me. 156, it was held that submission to arbitration would not be treated as a discontinuance of a pending suit where by necesssary implication the case is to be retained on the docket until the arbitration is perfected by the award.

The courts generally have held that where a stipulation contains a provision by way of agreement that judgment may be entered on the award, it will be inferred that the parties to the agreement intended thereby to prevent a discontinuance. (Hearne v. Brown, supra; Wilkinson v. Prichard, supra; Monroe Bank v. Widner, 11 Paige, 529, 43 Am. Dec. 768; Wilson v. Williams, supra; Rogers v. Nall, 6 Humph. 29; McCarthy v. Swan, 145 Mass. 471, N. E. 635.)

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A mere unexecuted agreement to submit to arbitration, made during the pendency of a suit, has been held as in no wise operating against the further progress of

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the pending litigation. (Wright v. Evans, 53 Ala. 108.) In a jurisdiction having a statute relating to arbitration, and in an instance where the parties entered into an agreement to arbitrate, which agreement did not conform to the statute, it was held that the agreement to arbitrate did not operate as a discontinuance, nor did it divest the court of jurisdiction. (Cox v. Giddings, 9 Tex. 44.)

To the same effect will be found the cases of Nettleton v. Gridley, 21 Conn. 531, 56 Am. Dec. 378, and Dinsmore v. Hanson, 48 N. H. 413. The reasoning in the case of Dinsmore v. Hanson, supra, is especially applicable to the question here presented under the circumstances of the case.

Commentators in viewing the question here dwelt upon have declared that the majority rule, that is, the rule supported by the majority of the decisions, is to the effect that a ground for the discontinuance of a pending suit is furnished by an agreement whereby the subjectmatter of the action is submitted to arbitration. The rule in English courts, whatever it may have been under the very early practice, was reframed at a later date, and we find it expressed by a text-writer on the subject as follows:

"It was formerly holden that a reference to arbitration was an implied stay of proceedings. But, in the begining of Queen Anne's time, a rule was made that no reference whatsoever, of any cause depending in the King's Bench, should stay the proceedings, unless it was expressed in the rule of reference, to be agreed, and all proceedings in this court should be stayed; and it has been frequently decided that the agreement to refer all matters in difference to arbitration is not sufficient to oust the courts of law or equity of their jurisdiction. When a reference is pending, and it has been agreed that it shall operate as a stay of proceedings, it may be made the subject of an application to the court for staying the proceedings until an award be made." (Tidd on Practice of the Courts of King's Bench and Common Pleas, 821.)

As will be seen by reference to the authorities we have

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cited, a strong line of decisions, and indeed, as we view it, the better reason, supports the rule that where it is expressly declared in or may be inferred from the agreement to refer that the parties did not intend, by referring their differences to arbitration, to effect a discontinuance or dismissal of the pending suit, such reference will not be construed by the court to effect a discontinuance or ouster of jurisdiction. Whatever diversity of opinion there may be as to the proper rule applicable to cases where the agreement to refer makes no mention as to the entry of judgment, the great trend of opinion will be found to support the rule that where the agreement to refer contains a provision to the effect that judgment shall be entered in the pending suit pursuant to the arbitration, neither the submission nor the award operates as a discontinuance. (2 R. C. L. 360.)

2. The one central question here involved, and the most important, inasmuch as it entails a reversal of the order and judgment of the lower court, is the right and duty of that court to entertain a motion to relieve one of the parties of the effect of a stipulation duly entered into. The stipulation was one which provided for the entry of judgment following submission to arbitration. The suit being one at law, the court held that nothing less than an independent proceeding in equity could relieve the appellant of the effect of his stipulation. In this we

must conclude the court erred.

In the case of Adams v. Hartzell, 18 N. D. 221, 119 N. W. 635, it appears that a stipulation was entered by the parties establishing an agreed statement of facts. The case being submitted upon this speculation, subsequently one of the parties gave notice of motion for an order permitting him to present further testimony in his objection. His motion was supported by affidavit. The court overruled objection and granted the motion. There the court held that while the action of the lower court was erroneous in relieving one party of the force and effect of the stipulation while the other remained bound, it

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declared, nevertheless, that under some circumstances such stipulation might be effected in the exercise of a wise discretion and additional evidence be received.

In the case of Gerdtzen v. Cockrell, 52 Minn. 501, 55 N. W. 58, it appears that the parties had stipulated the terms of a compromise and settlement of their mutual claims as involved in the action and authorized judgment to be entered in pursuance of such stipulation. The court held that it was within the power of the trial court to set aside such agreement and upon a proper showing place the parties in statu quo upon motion. Replying to the contention that the agreement and stipulation constituted a contract and therefore could not be set aside summarily upon motion, but could only be determined by a proceeding in equity, the court said:

"The mere form of the instrument sought to be set aside is not, however, controlling. It was a step or proceeding in the cause, and determined the form and amount of the judgment and the final disposition of the case. The effect of the order in question here, as finally made, was to put the parties in statu quo, with leave to serve the amended answer. It left the parties free to proceed to a trial upon the merits of the controversy between them, but the proceedings was not a trial of the merits upon motion. It was in principle no different from the vacating or setting aside of any order or stipulation in the action on the ground of mistake or other equitable ground."

In the case of Butler v. Chamberlain, 66 Neb. 174, 92 N. W. 154, the Supreme Court of Nebraska had this same question before it. In that instance it involved the right of the trial court to relieve a party of a stipulation of fact claimed to have been made improvidently. The court, after a most lucid reasoning, said:

"Therefore it seems to us that the sole question is whether there was an abuse of discretion on the part of the trial court. We think there was. If plaintiff's affidavit be true-and it stands uncontradicted-the stipulation

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stands in the way of a recovery by her of a substantial sum, justly due her, in her representative capacity. In the light of that affidavit, the stipulation was improvidently made, and should be set aside, since it does not appear that to do so would work any injustice to the defendant."

In the case of Keens v. Robertson, 46 Neb. 837, 65 N. W. 897, we find the Supreme Court of Nebraska again passing upon this question under conditions where the parties to a suit pending entered into a stipulation, and placed the same of record, that the decision in the case should be the same as that which might be rendered in another case then pending for trial in the same court. On motion of one of the parties, supported by affidavit, to vacate the agreement, the stipulation was set aside by the trial court. The court in determining the question referred approvingly to the cases of McClure v. Heirs of Sheek, 68 Tex. 426, 4 S. W. 552; Porter v. Holt, 73 Tex. 447, 11 S. W. 494, and Ward v. Clay, 82 Cal. 502, 23 Pac. 50.

In the case of Barry v. Mutual Life Ins. Co. of N. Y., 53 N. W. 536, the court of appeals had before it the question of the right of the trial court in an action at law to relieve parties of the effect of a stipulation, made during the course of a trial, as to the entry of an order vital to the issue. The court said:

"It is not an unusual thing to relieve parties from stipulations made in the progress of the action; and courts have always regarded this as within their power, and the exercise of it is frequently necessary to promote justice and prevent wrong."

In support of this conclusion, the court quoted the remark of Mr. Chief Justice Marshall (The Hiram, 1 Wheat. 440, 4 L. Ed. 131) as follows:

"If a judgment be confessed under a clear mistake, a court of law will set that judgment aside, if application be made while the judgment is in its power." Continuing, the court said:

* * *

"Whether the causes assigned were sufficient to justify the court in the exercise of the power was exclusively