Boring v. Boring

2 W. Va. 297 | W. Va. | 1867

Maxwell, J.

On the 31st day of October, 1863, three suits were pending in the circuit court of Harrison county, between the parties to this appeal. The first was an action of unlawful detainer in the name of Archibald Boring vs. Samuel Boring; the second was an injunction in the name of the said Archibald' vs. the same defendant, and the third was also an injunction in the name of Samuel J. Boring vs. Archibald and Jared Boring. On the said 31st day of October, 1863, the parties to the above named three causes entered into an agreement in writing, signed and sealed by them, submitting the same to the arbitrament of Ebenezer ~W. Patton and Iiiram J. Lynch, and agreeing- that if the said Patton and Lynch could not agree, or desired to have the assistance of an umpire, that they, the said Patton and Lynch, should have the right to select such umpire; and further agreeing that such submission and award should be entered of record in said court, and judgment rendered thereon.

Afterwards, the said Patton and Lynch, together with one Samuel IToff, returned their award to the said court, which appeared to have been made in pursuance of the submission of the said causes. It appears from the said award that the said Patton and Lynch, desiring the assistance of an umpire before they proceeded to hear the said causes, selected the said Hoff as such umpire; that on the 4th day of January, 1864, the said arbitrators and umpire met together for the purpose of making up their award, but not being able to complete the same on that day or the next, adjourned from day to day until the 6th of the same month when the award was completed. On the return of said award Samuel J, Boring took a rule in each of the chancery causes, to which he was party, against his adversaries, to show cause, if any they could, why the said award should not he entered up as the judgment of the court. The said Archibald, in the chancery suit in which ho Aras complainant, and the said Archibald and Jared, in the cause in which they wore de-defendants, took rules against the said Samuel, to show cause, if any he could, why the award should not be set aside. Upon the return of these rules the court refused to set aside the award, but entered the decree, giving it the effect of the judgment of the court, and from this decree an appeal has been allowed to this court.

The 1st, 2d and 3d sections of chap. 154, Code of Virginia, 1860, p. 656, provide for submitting to arbitration, matters in controversy, the effect of such submission, and the manner of entering up an award as the judgment of the court. The 4th section of the same chapter provides how and for what reasons an award may be set aside, and is as follows: “Uo such award shall be set aside, except for ei’rors apparent on its face, unless it appear to have been procured by corruption or other undue means, or that there was partiality or misbehavior in the arbitrators or umpire, or any of them. But this section shall not be construed to take away the power of courts of equity over awards.”

Upon the hearing of the said rules the said Archibald and Jared moved the court to set aside the said award, “because the said arbitrators, Patton and Lynch, had no authority to call to their aid Samuel Iioff as an umpire; and because there are errors, apparent on the face of said award; and because there was undue means used to procure said award; and because there was misbehavior and partiality in the arbitrators, and each of them; and because the arbitrators acted improperly and without authority in hearing and disposing of said subject matter and making their award at the time they did; and because it was error and misbehavior in the arbitrators to so hear and try said award; and because said award was made at a time when the defendants, nor either of them, in person or by their counsel, or with their witnesses or other evidence, was or could be present; and because the arbitrators exceeded their jurisdiction in directing the payment of money to other persons than to said Jared; and because they state in said award that they heard the evidence of the parties, which in fact is not true; and because the court now here has no jurisdiction to hear and determine the said rule of complainant; and because the arbitrators have by one award disposed of three cases, when in fact, if an award was at all proper, such award should have been in each of said cases.”

Of the causes assigned to set aside the award, several of them, if true, would be sufficient, while others of them would not be sufficient, if true. If these “are errors appearing on the face of said award,” that is good cause to set it aside. It is insisted in argument here that such errors do exist, and that they are manifestly apparent, if the whole record is looked into. But the rule seems to be well estab-fished that the errors must be apparent on the face of the award, and that other parts of the record cannot be looked into to show that there is error of law or fact in the award, for the arbitrators are the judges of both law and facts. See Bassett’s adm’r vs. Cunningham’s adm’r, 9 Gratt., 688, and the authorities there cited, and Kline vs. Cotard, 2 Gallison’s Neports, 69, and authorities cited.

In the case of Morris vs. Morris, 9 Gratt., 647, Allen, J., in delivering the opinion of the court uses the following language. '“"When the submission clearly shows, as I think it does in this case, that the whole matter in controversy and every question of law and fact arising in the cause, was left to the arbitrator, who was substituted to the place of the court, and whose decision wras final; and the arbitrator without referring any question to the consideration of the court, makes a general award, deciding the question submitted to him, the award is conclusive. The rule of law and equity requires that the reasons for setting aside an award must appear on the face of it; or there must be misbehavior or corruption in the arbitrators, or some palpable mistake. Though the court on a review of the facts, might arrive at a different conclusion from the arbitrator, it cannot, for this reason, set aside the award. The court can look to the testimony for the purpose of determining from the evidence and other circumstances, whether the error was so gross and palpable as to show misbehavior or corruption in the arbitrator, but not to correct any error of judgment into which, in the view of the court, the arbitrator may have innocently fallen; otherwise most awards, instead of ending, would be themselves the foundation of controversies, and courts would be called upon to exercise an appellate jurisdiction over the proceedings of arbitrators in the country upon proof of what may have transpired before them.” This opinion was concurred in at the time it was delivered by the distinguished gentleman, who so ably argued the present cause for the appellants. There is then no error on the face of the award for which it should be set aside.

There is nothing in the case, from which the award appears to have been procured by corruption or other undue means.

It is claimed that the evidence, taken and certified by the court below, shows that there was partiality or misbehavior on the part of Patton, one of the arbitrators. It will be seen by reference to the facts certified, that Archibald Boring', the party who complains of the conduct of Patton, was himself responsible for that conduct, and if he was injured by it, it was his own fault. But it does not appear from the joroof that Patton was guilty of any misbehavior.

It is claimed that the award should be set aside for the want of sufficient notice of the time and place of meeting of the arbitrators. It appears from a notice and return thereon, which accompanied the award when it was returned to court, that the arbitrators and umpire did notify the parties of the time and place, when and where they would proceed to hear the causes submitted to them. It ajspears also from the award, that notice was given, and that they did proceed on the day, and at the place named, to hear and determine the matters submitted to them, but not having time to finish the cases on that day, continued the hearing thereof until the next day at the same place, on -which second day, not having time to complete the hearing of said causes, the further hearing thereof was still further continued until the next day, at the same place, when and where the hearing of the said causes was completed and the award rendered.

It is claimed that further notice should have beén given at. the adjournment on each day to the parties not in attendance, that the hearing of the causes would be proceeded with on the next day. Our statute in relation to awards is silent as to notice, and I have not been able to find any rule of universal and inflexible application on the subject. There may be many cases referred to arbitrators which require no notice, because the parties are not to be ju-esent. But as a general rule, a reasonable notice is necessary, and if the party does not appear when notified, the arbitrators have the power to proceed without him. The arbitrators are the judges as to whether it is proper to proceed in the absence of the.party notified, and they may always do so unless there is some understanding express or implied to the contrary. Upon the whole I think the notice was sufficient- in this case.

Under the circumstances of the case there was no misconduct on the part of the arbitrators in their proceeding to render the award in the absence of the counsel of the appellants.

. I a-m of opinion that there is no error in the decree appealed from, and that it ought to he affirmed with damages and costs.

The other Judgeá concurred.

Decree affirmed.