50 Neb. 858 | Neb. | 1897
On the 27th of March, 1894, Emanuel G. Burkland and Charles A. Johnson submitted certain differences existing between them to arbitrators. The submission was in writing, duly signed by the parties, and acknowledged by them before a notary public. The arbitrators selected convened and, after a somewhat protracted investigation, made in writing their award as required by the agreement between Burkland and Johnson. The award, so far as material here, is as follows:
“First — We award that E. G. Burkland shall, on or before the 1st day of May, 1894,. pay and discharge the judgment and costs in the case of the Saunders County National Bank v. E. G. Burkland and C. A. Johnson, now pending in the district court of said county, and not furthér prosecute said case.
“Second — We award that C. A. Johnson shall file a dismissal of the suit wherein he is plaintiff and said Burk-*860 land is defendant at the costs of said Johnson, said suit being for the specific performance of a real estate contract; and the said Johnson shall sign said dismissal and pay the costs in said suit on or before the 1st of May, 1894.
“Third — We award that said E. G. Burkland and O. A. J ohnson shall file a dismissal and settlement, at the costs of said O. A. J ohnson, in each of the suits for rent which are now pending in the courts of said county, and that O. A. Johnson shall pay the costs therein on or before May 1, 1894.
“Fourth — We award that E. G. Burkland and wife shall make and deliver to said O. A. Johnson, on or before May 1,1894, a quitclaim to lot one (1), block one hundred and forty-eight (148), in the County Addition to the city of Wahoo, aforesaid.
“Fifth — We award that C. A. Johnson and wife shall make and deliver to E. G. Burkland, on or before May 1, 1894, a quitclaim deed to lots three and four (8 and 4), block one hundred and forty-nine (149), in the County Addition to Wahoo, aforesaid.
“Sixth — We award that said E. G. Burkland shall, on or before the 1st day of May, 1894, pay or secure by good bankable paper to the said C. A. Johnson the sum of three thousand and eighty-nine ($3,089.50) dollars and fifty cents.
“Seventh- — We award that upon the compliance with the foregoing awards by the parties, the said E. G. Burk-land shall execute and deliver to said C. A. Johnson a release of all actions and causes of action or demands, of whatsoever nature, which existed between them at the time of the execution of the contract and bonds for arbitration, and that the said C. A. Johnson shall execute and deliver to said E. G. Burkland a similar release at same time.
“Eighth — We award that each party pay one-half of the costs of this arbitration.”
This award was filed in the office of the clerk of the
The statute of arbitrations and awards of the state of Illinois provides that parties might submit differences existing between them to arbitration by an instrument in writing, signed by them and attested by at least one witness. In Moody v. Nelson, 60 Ill., 229, the parties submitted their differences to arbitration by an instrument in writing, but it was not witnessed, and the supreme court held that the circuit court was without jurisdiction to
The Code of Iowa provided that the agreement of parties to submit their difference to arbitration should be acknowledged; and in Fink v. Fink, 8 Ia., 313, it was held that an award made in pursuance of an unacknowledged agreement therefor conferred no jurisdiction upon the district court to render a judgment upon the award.
The statute of Massachusetts required an agreement for arbitration to be acknowledged before a justice of the peace. Such an agreement was signed by both parties, but acknowledged by only one of them; and the supreme court of Massachusetts held that the nisi prius court had no jurisdiction to render a judgment upon the award made. (See Abbott v. Dexter, 6 Cush. [Mass.], 108.)
The statute of Minnesota provides that an agreement for arbitration must be acknowledged before a justice of the peace; and in Barney v. Flower, 7 N. W. Rep. [Minn.], 823, the supreme court held: “In a submission to arbitration under the statute the agreement to submit must be acknowledged before a justice of the peace; an acknowledgment before any other officer will not do. The proper acknowledgment cannot be afterwards waived by the parties, even though that objection is not made on the application to confirm the award and for judgment on it.”
In Gibson v. Burrows, 3 N. W. Rep. [Mich.], 200, it was held: “No rule of arbitration can be enforced by a judgment thereon unless it in all respects conforms to the statutory provisions.” To the same effect see Holdridge v. Stowell, 40 N. W. Rep. [Minn.], 259; Heath v. Tenney, 3 Gray [Mass.], 380; Burghardt v. Owen, 13 Gray [Mass.], 300; Franklin Mining Co. v. Pratt, 101 Mass., 359; Darling v. Darling, 16 Wis., 675; Steel v. Steel, 1 Nev., 27.
We conclude, therefore, (1) that the finding and judgment of the district court to the effect that the sixth item of the award was not the result of a mistake made by the arbitrators in computation or allowing interest were and are correct; (2) that the plaintiff in error, by his conduct, has ratified the award made and is estopped from now assailing it because of the failure of the arbitrators to state the conclusions of fact and conclusions of law found by them; (3) that because of the failure of the parties to acknowledge the agreement of submission before a justice of the peace, the distinct court was without jurisdiction to confirm the award on motion and without jurisdiction to render a judgment upon the award made. The decree of the district court is
Reversed.