56 Wis. 148 | Wis. | 1882
The learned counsel for the respondent insists that the appellant is not entitled to any relief in this court, for the reason that his motion to vacate the award or modify the same was not made in time; that the learned circuit judge erred in granting the order to show cause why the award and judgment entered thereon should not be set aside or modified after judgment had been entered on the award, and that the order of the circuit court denying the motion to vacate the award was right, irrespective of the merits of the case.
We are clearly of the opinion that the statute contemplates that all motions to vacate or modify the award must be made before the same is confirmed, and judgment entered thereon. Sec. 3551, R. S. 1878, is as follows: “Upon such submission being proved by the affidavit of a subscribing witness thereto, and upon the award made in pursuance thereof being proved in like manner, or by the affidavit of the arbitrators, within one year after the making of the same, the court designated in such submission shall, by order, confirm such award, unless the same be vacated or modified, or a decision thereon be postponed, as herein provided.” Secs.
These provisions clearly show that a motion to vacate, modify, or set aside an award must be made before the same is affirmed and judgment entered thereon. These provisions would not, however, prevent a party against whom an award had been irregularly confirmed, and upon which judgment had been irregularly entered, from moving to set aside such irregular confirmation and judgment for the purpose of making a motion to vacate, modify, or correct the award, provided the motion to set aside such irregular confirmation and judgment, and to vacate, modify, or correct the award, be made within the time limited by the statute.
Notwithstanding the argument of the learned counsel for the respondent, we are inclined to hold that the confirmation of the award, and judgment thereon, cannot be regularly made except on notice of motion to the opposite party. Such is the rule in Mew York upon a statute in all respects like ours, and from which ours was undoubtedly borrowed. Part 3, ch. 8, tit. 14, R. S. of New York; 6 Wait’s Pr., 240, 241; 10 Wend., 590; 5 Wend., 102. Our circuit court rules (p. 8, rule 9) provide that “all motions shall be brought to a hearing before the court or a judge on notice or order to show
It is alleged by the learned counsel for the appellant that no notice was in fact given by the respondent to the appellant that he would apply to the circuit court of Portage county for a confirmation of the award and for judgment and that as a consequence the confirmation of the award and judgment thereon was irregularly entered, and he was entitled to have it set aside for that reason alone. The record, however, shows that when the respondent moved for confirmation of the award and for judgment, at the Waupaca term of said court, the appellant appeared in that court and did not resist his application for confirmation and judgment, on the ground that no notice of the motion had been given, but asked the court to stay the proceedings until the first day of the November term of the Portage county circuit court, and that the proceedings were, on his motion, stayed until that day. Although the record does not disclose the reason for granting the stay of proceedings, it is apparent that the only reason that could be alleged for granting the stay was to give the appellant time to move to vacate or modify the award, as provided by statute. The very short time which elapsed between the publication of the award and the next term of the Waupaca circuit court, at which the motion for judgment was made, was a sufficient reason for granting such stay of proceedings, in order to give the appellant time to make his motion. It also appears that the Portage county circuit court was a court at which the respondent would be entitled to move for the confirmation of the award and for judgment; and at such term he applied for an order
We think the fact that no formal notice of the motion to confirm the award and for the judgment thereon was given to the appellant, was not a sufficient reason for setting the same aside in order to let him in to move to vacate the award.
By the Court.— The order of the circuit court is affirmed and the cause remanded.