Cameron v. Castleberry

29 Ga. 495 | Ga. | 1859

— Benning J.

By the Court.

delivering the opinion.

Did the Court err, in overruling the motions to set aside the award in these two cases ? We think so.

•The motion in the first of these two cases, will be the first considered.

■ One of the defences in the first case, was, the statute of limitations. If that. defence was well founded, it was of course a bar to the whole suit. The question, whether it was or was not well founded, was therefore, a question which had to be decided, before there could be any legal award.

One of the grounds of the motion, was, that the arbitrators failed to decide this question. Therefore, if that ground was true, the motion ought to have prevailed.

Was that ground true ?

The arbitrators, when they served the counsel for the plaintiffs in error, with a copy of the award, also served them, with a copy of another paper. This paper the arbitrators also returned to the Court along with the award. It was signed by all of them. In it the arbitrators use this language; “ we are of the opinion, that the statute of limitations, and doctrine of stale demands, does not apply.” They then give reasons for this opinion. They, then, say: “From this opinion, as regards the statute of limitations, it is due to Mr. Benjamin H. Cameron, to say, he dissents.” Was this paper evidence ? for if it was, there was no award on the question of the statute of limitations — the case being one, in which, the concurrence of all three of the arbitrators, was necessary, to an award.

We think, that the paper was evidence. It accompanied the award; it was signed, like the award, by all the arbitrators ; it was in award language, as though the arbitrators intended it to be a part of the award; “ we are of the opinion, &c.; “ from this opinion,” &c. “ Cameron dissents.”

Suppose the case had been before the jury, and the jury had returned into Court, with the two papers, on one of which was written; we find for the plaintiff, (so much;) and, on the other, we cannot agree on the question of the statute of limitations, two-thirds of us, think, that the case is not within that statute, the other third, think that it is within that statute, would not the Court have to recognize both papers, and to treat the latter, equally with the former, as evidence of the action of the jury? Most certainly. Indeed, either party to a case, has the right to poll the jury, and-if on doing so, a single juror answers, that he did not agree to ' 'what was returned, as the verdict, hi's answer is evidence, ■ and what was received as the verdict is rejected,and the jury sent back to make a verdict.

[1.] We think, then, that the paper was evidence. (See case of the South Carolina Railroad vs. Moore & Philpot, decided at Savannah, June Term, 1859.)

[2.] The paper being to be considered, as evidence, it showed, that one of the arbitrators dissented, on the question of the statute of limitations, — a question, the decision of which was necessary, as the defence of the statute of limitations, is one that goes to the whole case. And if on such a question,'an arbitrator dissented, the dissent vitiated the ■' whole award ; and, théréfore, the' Court ought tq haverejec•"ted the award. , ....

; " Qur conclusion, then, is, that this ground of the motion, ' namely, the ground that the arbitrators had failed to .decide ; the question of the statute of limitations, was a good ground, and, therefore, that the Court erred in overruling the motion.

This would suffice for the case; but, we think It best" to ’ express an opinion on another of the grounds — the ground, that the arbitrators had evidence before them, of which' the losing side had no notice. . .

[3.] It appears from this same paper which accompanied the award, that the arbitrators took into consideration, on the question of the statute of limitations, a certain writing, 'of which, they thus speak, in that paper.. “Articles of agreement between the parties were submitted to us, showing conclusively, that all the proceedings in regard to the estate, were to be held subsidiary to a final settlement.” This was a writing, then, which, in the estimation of two of the arbitrators, was of so much value, that it was “ conclusive” on the question of the statute of limitations. Ought such a writing as that, to have gone before them, without notice to the parties against whom, it was to operate ? We think not. And yet, it appears, that it did go before them, that it was placed before them by one of themselves. What ought to be the consequence ? That the award should be rejected. So we think. Such a matter would be sufficient to require the rejection of a verdict.

It is unnecessary to consider the other grounds of the motion.

So much for the motion in the first of the two cases.

I proceed to the motion in the second of the two cases.

Did the Court err, in overruling the motion to set aside the award in that case. We think so.

The award in that case, had to fall with the fall of the award in the other.

It appears, that the two cases were submitted to the same arbitrators, at the same time, under the same order of Court; and, that the two were considered together, by the arbitrators, and decided by them at the same time, the 19th of October, 1859. It appears, that, in the second case, they awarded, that the plaintiffs in error should pay the defendants in error, certain sums of money, and that these sums were to be paid out of a sum of $3,773 16 cents, which, by the award in the other case, the arbitrators said, they found and awarded, to be in the hands of the plaintiff in error, “ belonging to the estate of Edward Castleberry, deceased, and subject to be disposed of according to the will of said deceased.” The award in that other case,- having been set aside by us, there is npthing to show, that the plaintiffs in error have in hand anything out of which to pay the sums awarded in this case.

In short, there is nothing to show, that the award in the last case, would have been what it was, if the award in the first, had not been what it was. The award in the first falling, the award in the second, ought, therefore, to fall with it.

[4.] We think then, that the award in this second cas e also, ought to be rejected.

Judgment reversed in both cases.