Brown v. Harper

54 Iowa 546 | Iowa | 1880

Day, J.

1. practice : arbitration: appeal. I. The appellee filed a motion to dismiss the appeal upon the ground that no appeal is allowed by statute from the order in question. The two cases most . ... directly m point, relied upon by the appellee, are Bryan v. Brennon, 7 How. Pr. Rep., 359, and Smith v. Dodd, 3 E. D. Smith, 348. Both cases are appeals from an order of reference. The case of Bryan v. Brennon was determined in the Supreme Court of New York. The question is given but little consideration, and it cannot be regarded as a case of much authority. The case of Smith v. Dodd was determined in the Court of Common Pleas for the city and county of New York. The ground of the decision is that, when the action is referable in its nature, an order of reference is a matter in the discretion of the judge, and not -appealable. But suppose the question to be whether the action is referable in its nature. In what manner can that question be determined unless an appeal is allowed? Suppose a court should, in an ordinary action at law, upon motion of one of the parties, order a reference. Must the other party submit to the unlawful mode of trial, and wait until a final judgment is rendered against him before he can prosecute an appeal? In McMartin v. Bingham, 27 Iowa, 234, an appeal was taken from an order referring an action by ordinary proceedings without the consent of the parties. No question was made as to the right to entertain the appeal, and the order was reversed. In Callanan & Ingham v. Shaw, 19 Iowa, 183, it was directly held that an appeal lies from an order ajrpointing or refusing to appoint a receiver. In Rain v. Delano, 11 Abbott’s P. R. N. S., 29, it was held that a right of trial by jury is a substantial right, and that where an order of reference is made in a case not properly referable, the order is appealable. The same doctrine is recognized in Welsh v. Danagh, 52 N. Y., 590. Section 3427 of the Code provides: “The award may be rejected by the court for any legal and sufficient reasons, or it may be recommitted for a're-hearing tó tile same arbitrators, or any others agreed upon by the parties.” This does not confer upon the court the right to reject or recommit the award at mere discretion. It can be done 'only for legal and sufficient reasons. We are of opinion that á ruling of the court recommitting the matter to arbitrators is a decision from which an appeal lies under sections 3163 and 3164 of the Code.

II. Did the court, then, err in recommitting this matter to the arbitrators originally selected by the parties? It is urged by the appellant that, as the time'fixed by the parties for the filing of the award had passed, no award could be made after that time. But this objection is removed by section 3423 of the Code, which provides: “If the time within which the award is to be made is fixed in the submission, no award made after that time shall have any legal effect, unless made upon a recommitment of the matter by the court tó which it is reported.”

2. - — mrator?404 III. It is claimed further that the court erred, under the circumstances of this case, in recommitting the matter to the same arbitrators. It appears that two of the árS bitrators, J. H. Camburn and O. C. L. Jones, made oiit and signed an award, finding in favor of the 'defendant $41,445.14, without hearing the arguments of counsel, before the 'cause was finally submitted, and when they weré advised that the plaintiff desired to introduce further testimony. It further appears that Jones, for a considerable time, had not met with the other arbitrators, on account .of sickness, and that he signed the award when in bed, relying upon the representations of Camburn that the other two arbitrators liad agreed upon it, and that it would be signed by Taylor. It appears from the evidence that Camburn was very earnest and persistent in the determination that an award should be made within the time fixed in the agreement for submission, although Taylor insisted that the facts should merely be reported to the court and further time asked. It further appears that Camburn is not upon friendly terms with the plaintiff, and that they do not speak when they meet. Under such circumstances we are satisfied that he is not a proper person to determine a controversy between the parties. In Morse on Arbitration and Award, page 533 — 4, the following language is employed:' “Acts of an arbitrator indicative of partiality constitute misconduct. The most ordinary and simple description of misconduct arises out of some act or demonstration on the part of the arbitrator indicative of bias, prejudice, or partiality. We have already seen that the first and most essential requisite in a competent arbitrator is a perfect evenness and impartiality. But it is not always enough that this intellectual condition of impartiality actually exists; for if an arbitrator possesses it,-yet if he does any act which is only apparently inconsistent - with -it, that act will, in nearly all cases, constitute such .misconduct that the award will be vacated. It is not alone the fact, but the aspect of perfect fairness which must be preserved, and an arbitrator cannot be too careful as to his conduct, holding this end in view. It is not his own consciousness of rigid justice that can support his determination of the controversy. It is not his conscientious intent to be honest, nor his conviction in his own mind that he is so, that can suffice. It is his external actions that will be subjected to scrutiny; and if these do not satisfactorily bear the test the award will fall.” Tbe court should simply have rejected tbe award, and left tbe parties to resort to tbe ordinary tribunals for tbe settlement of their differences. In re-submitting tbe matter to tbe same arbitrators tbe court erred.

Reversed.