174 P. 1126 | Utah | 1918
(after stating the facts as above).
Section 9 of article 8 of tbe Constitution of Utah, inter alia, contains this provision:
“From all final judgments of the district courts, there shall be a right of appeal to the Supreme Court.”
The Constitution of Utah went into effect January 4, 1896. At this time the statutes of Utah, by specific enumeration, provided for appeals from various orders of the district courts which are not final judgments. For instance, by statutes existing on January 4, 1896, an appeal was given from an order granting or refusing a new trial, from an order granting or dissolving an injunction, from an order dissolving or refusing to dissolve an attachment, and, what is to the point in question, there was a provision in the chapter on Arbitration allowing an appeal from an order of the district court, vacating or modifying an award of arbitrators. The present statutes concerning arbitration are now in all respects substantially the same, and, so far as concerns the right of appeal from an order vacating or modifying an award, are identically the same as they were on August 1, 1884, on which date they were enacted. These provisions, with the exception of one section concerning the attendance of witnesses, were borrowed from California.
In 1896, some months after the Constitution became operative, this court held that the sentence quoted from section 9, article 8, of the Constitution, impliedly denies, the right of appeal from all judgments or orders that are not final judgments. North Point Canal Co. v. Utah & S. L. Canal Co., 14 Utah, 155, 46 Pac. 824; Eastman v. Gurrey, 14 Utah, 169, 46 Pac. 828. See, also, State v. Olsen, 39 Utah; 177, 115 Pac. 968.
In the case of Canal Co. v. Canal Co., supra, the point of decision was that an appeal would not lie from an order granting an injunction pendente lite, because such order is not final; and in the case of Eastman v. Gurrey, the point decided was that an order granting a new trial was not final,
On January 1, 1898, the statutes of Utah were revised. That revision leaves out of the chapter on Appeals all former statutory provisions concerning which orders are or are not ap-pealable, and inserts in lieu thereof the one sentence:
“From all final judgments of the district courts, there shall be a right of appeal to the Supreme Court.”
This provision is in section 3300, Compiled Laws, 1907, which section is identical in language and in idea with the sentence quoted from the Constitution. Comp. Laws 1907, section 3230 (which is not in the chapter on Appeals, but is a part of the chapter on Arbitration), contains these words:
“The decision upon the motion (i. e., motion to vacate, modify, or correct the award) is subject to appeal in the same manner as an order which is subject to appeal in a civil action,” etc.
Comp. Laws 1907, section 3228 (a part of the chapter 40 above mentioned), provides:
“The court, oh motion, may vacate the award # * * and may order a new hearing before the same arbitrators, or not, in its discretion.”
The idea of what constitutes finality in a judgment or order is exemplified and well explained in two cases decided by this court. Winnovich v. Emery, 33 Utah, 345, 93 Pac. 988; Bristol v. Brent, 35 Utah, 213, 99 Pac. 1000.
Under the statute quoted, the appealability of an order setting aside an award depends entirely upon the scope and effect of such order. The appellate court may examine the whole record, to determine the nature, scope, and effect of the judgment in question. If the order leaves the issues in the case in such condition that a way to try the same in that particular proceeding is still open, ordinarily the order is not final. But, on 'the other hand, if the order setting aside the
An order of the court setting aside an award and ordering a new hearing might not be a final judgment. But in this particular case the court not only sets aside the award, and not only fails to order a resubmission, but also affirmatively orders the plaintiffs (and interveners) to present their claims for damages to the receiver of the Utah Lake Land, Water & Power Company, who are appointed in another independent action. That was a final disposition of these damage claims, so far as this particular case is concerned. In substance and effect, .that order is a judgment releasing two defendants (Whitney and the Orchard .Company) ■ from plaintiffs’ claims for damage, and putting plaintiffs out of court so far as concerns their damage claims against the third defendant. In my opinion this order is final, and therefore appealable. Winnovich v. Emery, 33 Utah, 345, 93 Pac. 988.
Appellants appeal from the judgment or order setting aside the award or awards of damages made by the arbitrators to the several plaintiffs and interveners. The errors assigned fall under three heads: (1) Error in entertaining defendants’ motion to set aside the awards; (2) error in receiving the evidence taken before the arbitrators; (3) insufficiency of grounds stated in motion and insufficiency of evidence to sustain same. Comp. Laws Utah 1907, section 3228, provides that the court may on motion vacate an award on any of the following grounds:
£ ‘ 1. That it was procured by corruption or fraud or other undue means.
“2. That the arbitrators were guilty of misconduct or committed gross error in refusing, on cause shown, to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced.
The motion to set aside the award, together with the amendment to said motion, is a lengthy document. It covers sixty-three page's in the printed abstract. Fifteen of the grounds stated in the motion pertain to the award as an entirety. In addition to this, each item of damage awarded to the respective plaintiffs is separately attacked on grounds more or less peculiar thereto. It is not necessary to exhibit this motion in full. A condensed statement of the chief points involved will suffice. The motion states that it will be made upon the pleadings in the case, and upon all the evidence taken before the arbitrators, and upon oral evidence to be introduced at the hearing of such motion.
The motion, in so far as it challenges the validity of the award as an entirety, is based upon alleged misconduct and improper action on the part of the arbitrators in the following respects: (1) In proceeding to hear evidence before any claims were filed with them. The stipulation provides that each plaintiff shall file his itemized claim for damage as a basis for consideration. (2) That the arbitrators acted in the “good old-fashioned way” in an attempt to create a better feeling in the Elberta community. (3) That the arbitrators spent two weeks examining the matter of fraud and fraudulent representations in the sales made to plaintiffs. (4) That they spent two weeks investigating the history of the Elberta project, disputes over water rights, fraudulent advertising, etc., and in so doing received irrelevant evidence and. hearsay evidence. (5) That Mr. Shelley, who was acting as attorney for defendants at the hearing, was, on motion of plaintiffs’ attorneys, excluded from the hearing. (6) That there was no evidence to support any award of damages. (7) That damages were assessed contrary to. law for items for which the law allows no claims. (8) Damages doubly assessed for both loss of crops and alleged depreciation of land. (9) That the arbitrators exceeded their powers. Many more
When the motion was presented for hearing, the court received the evidence, or some of the evidence, taken before the arbitrators. The abstract refers to a “box full of papers,” “four bundles of matter,” “loose matter, Exhibits Bxl to 83, inclusive.” What the evidence and all these matters proved or tended to prove to the court below we are very scantily advised by the printed abstract. In colloquies between court and counsel, it appears that evidence taken before the arbitrators was being-read to the court. In another place the court, referring to such evidence, says, ‘ ‘ I have read it over. ’ ’
In the certificate to the bill of exceptions it is certified:
The printed abstract does not set forth, or purport to set forth, this evidence, or any of it. Under rule 6 of this court (33 Utah, vii, 97 Pac. ix), if any point concerning the sufficiency or insufficiency of evidence is involved in the appeal, appellant must set forth in the printed abstract the full substance of the evidence. Nor does appellants’ brief present or argue the evidence. The question of the sufficiency of the evidence to justify the order of the trial court is not before this court. Vance v. Heath, 42 Utah, 148, 129 Pac. 365; Laundry v. Dole, 20 Utah, 469, 58 Pac. 1109.
The word ‘ ‘ appeal, ’ ’ as here used, does not mean a technical appeal. The means for a technical appeal from arbitrators to court is not provided for herein, either by statute or by the stipulation. The word “appeal,” in the stipulation, is used in a broad and general sense, and merely means a presentment of the point reserved to the court by means of the motion provided for by the statute.
The defendants had the right to present to the court questions as to gross misconduct, or fraudulent conduct, either actual or constructive, of arbitrators, and the question as to whether any award, or any item in the award, was proper and allowable as a matter of law, and the question of whether the arbitrators exceeded their powers, and the question of whether or not the stipulation had been violated to the prejudice of defendants, and the court had jurisdiction to entertain such matter. To hold otherwise would be to nullify both statute and stipulation. Defendants’ motion, inter alia, contains the four grounds above mentioned, and the court had jurisdiction to entertain said motion. It is difficult to see how in an ordinary case, and in this case, the court could, without hearing evidence of some kind, pass judgment upon excess of authority or misconduct of arbitrators, or the legal competency of .an award, or of any item in an award. 5 C. J. pp. 240-243, and notes. In this particular case, each award is substantially in this form, nonessentials omitted:
“We find that defendants failed to furnish in the years 1911 and 1912 all the water that the plaintiff James G. Russel was entitled to, and thereby the plaintiff’s trees were damaged in the sum of'$400. We further find that defendants have not had and have not furnished the quantity of water to which James G. Russel was entitled, and his land has depreciated in value, to his damage, in the sum of $600. We award to James Gr. Russel $1,000, to be entered as a judgment,” etc.
Appellants insist that, before a court may properly set aside an award on the grounds stated in defendants’ -motion, the illegality in the award or proceeding must appear upon the face of the award, or at least upon the face of the record, or be exhibited by affidavit. The amendment to the motion to set aside the awards states that the testimony taken before the arbitrators was reduced to writing and was filed in court with the findings and awai’ds, and the same is “hereby referred to and made a part hereof.” Comp. Laws Utah 1907, section 3325, provides, among other things, that:
‘ ‘ Testimony to sustain or resist a motion may be in the form of affidavits, or in such other form as the parties may agree on or the court or judge direct.”
objections been made, the defects or informalities, if any, in the identification, could have been cured. These defects were waived, because no specific objection thereto was taken at the hearing. Tietjen v. McCoy (N. M.) 172 Pac. 1042; American Pub. Co. v. Mayne, 9 Utah, 318, 34 Pac. 247; Kipros v. Railway, 45 Utah, 389, 146 Pac. 292; 13 Cyc. pp. 1017-1020, and notes; Jones, Evidence (2d Ed.) section 893. The objection made in the court below to the reception of this
No reversible error of the trial court in setting aside the award or awards is presented to this court. No appeal is taken from, or exceptions taken to, any other part of the judgment, nor is any particular order or mandate of the court, or any failure to make any particular order, assigned as error. What disposition the court should or should not have made of the damage claims after setting aside the awards is an interesting question, in the light of the stipulation and the rights of the parties involved therein. In view of the state of the record, these matters are not before us for review.
The order setting the awards aside must be affirmed.
Defendants and the receiver also appeal from all the order, or decree, except that part setting aside the awards. They complain of that part of the decree which confirms the settlement made by the stipulations. It is urged that the stipulations, in so far as they compromise or settle the quantity of water the plaintiffs are to have, and the matter of mortgages, etc., are invalid, because the attorneys had no authority to sign them, and that as a necessary consequence the order of the court based on these stipulations is invalid. Special stress is laid upon the challenge to that part of the decree which awards water to plaintiffs Studebaker and Stratton.
So far as the record shows, the receiver had not been appointed at the time the stipulations were signed. The first reference to the receiver is found in the order or decree. He was appointed in another action against these defendants “after the issues herein were settled as they now appear.” The quotation (italics ours) is taken from respondents’ brief. As before noted, the two stipulations dispose of a part of the
In this particular case it seems that more than two years elapsed between the time the stipulations were signed and the time when doubts arose in the mind of the attorney for the receiver as to the authority of the attorneys to sign the same. Meanwhile the attorneys, the arbitrators, the court, and all parties were proceeding and acting under these stipulations in a manner that suggests an honest belief on their part to the effect that the stipulations were valid. One of the grounds upon which the court was asked to set aside the awards is that Mr. Shelley, attorney for defendants, was excluded from the hearing held by the arbitrators, and defendants were thereby deprived of the benefits of his knowledge and service in presenting their case. The answers of defendants filed with the arbitrators were verified by Mr. Whitney. In some instances he verifies them individually, and in some instances as president of and in behalf of defendant corporations. From this we must infer that defendants had seasonable knowledge of the arbitration and of the whole agreement upon which it was founded. The amendment to the motion to set aside the awards, which amendment was filed nearly two years — twenty-two months — -prior to the first suggestion of lack of authority on the part of attorneys to sign the stipulations, recites that the parties, through their attorneys, entered into the stipulation. The point as to the authority of the attorneys to sign the stipulation was not raised at the time the awards were set aside, nor at any time prior to the hearing of a motion to amend the proposed bill of exceptions. This motion to amend
It is next argued by cross-appellants that the stipulation was or is abrogated by operation of law. It is contended that the stipulation contemplated the settlement of the entire controversy, and not merely a portion of it; ergo, there should be no judgment thereon until the claims have been arbitrated. The stipulation covers two proceedings: (1) Settlement of differences as to water rights, mortgages, etc.; and (2) arbitration of damage claims. The'two proceedings are not wholly severable under the terms of the stipulation. The stipulation provides that the plaintiffs shall renew their notes and mortgages to defendants, and shall deposit the said renewed documents with Gen. Wedgewood, who shall hold the same until the damage claims have been disposed of by arbitration, as provided in the stipulation, and upon damages being found for any plaintiff he shall indorse and credit the same on the note of such plaintiff as of date March 1, 1915. The contention to the effect that the stipulation embraced the whole controversy is well founded, but it is immaterial.
It is next contended that the court erred in making decree to the effect that defendants Stratton and Studebaker were each entitled to two and one-half acre feet of water for their respective parcels of land. The stipulation names about twenty parties, describes the parcel of land owned by each, and provides that each of said parties shall have two and one-half acre feet of. water each season for irrigating such parcel. The stipulation further provides that these water rights are made appurtenant to these lands by deeds of conveyance. Stratton and Studebaker are mentioned in this list of names, and their lands are therein described. In a subsequent paragraph the stipulation provides that at the time of hearing before the arbitrators Stratton and Studebaker may offer evidence, "as they may respectively be advised,” and "in support of their contention” that the water rights to be awarded them in the decree, "not only are no concession on the part of defendants, but that they are less than said plaintiffs respectively are entitled to.” It seems from the above that Strat-ton and Studebaker were claimants of more water than the stipulation allowed them, and that they were given opportunity by the stipulation to offer evidence as to such excess. The decree follows the stipulation and awards them the amount of water therein agreed. If the stipulation is valid, and I hold that it is, the decree as to these water rights is valid.
No reversible error in the judgment of the lower court has been exhibited to this court. Judgment affirmed on both appeals. Respondents awarded costs on appellants’ appeal. Appellants awarded costs on respondents’ cross-appeal.
