Chapman v. Ewing, 78 Ala. 403

Chapman v. Ewing

78 Ala. 403 | Ala. | 1884

SOMERVILLE, J.

The statutes of this State declare, that “it is the duty of,all the courts to encourage the settlement of controversies pending before them, by a reference thereof to arbitrators, chosen by the parties or their attorneys, and, on motion of the parties, must make such order, and continue the cause for award; but such continuance must not extend beyond one term, unless for good cause shown, or by consent.” — Code 1876, § 3536.

The judgment of the Circuit Court recites the fact that, in June, 1882, the parties to the present suit appeared by their attorneys, and “ by agreement ” it was ordered that the cause be submitted to the arbitrament of three named arbitrators, including among them one David Wise; and the cause was ordered to be continued to await the coining in of the award. On the seventh of August, 1883, at a regular term of the same court, the following judgment-entry appears: “Come the parties, by their attorneys, and ordered by the court that L. W. Day be appointed arbitrator instead of Daniel Wise.” It is suggested that the order shows that the last named arbitrator was appointed by the court, and not chosen by the parties or their attorneys, as required .by the statute. The point, in our *405opinion, is without any force, especially in view of the fact that it is raised for the first time in this court. The parties appeared in open court, and made no objection to the substituted arbitrator. This acquiescence operated as an implied assent to his appointment. The appellants, moreover, proceeded without objection to have the cause heard and determined before the board of arbitrators as thus constituted, taking the chances of a favorable decision in their behalf; and the objection was thereby waived, if there was anything in it. — Morse on Arb. & Award, 171-172. And for the same reason the parties lost their right to avail themselves of any objection based upon a continuance of the cause pending in the Circuit Court beyond one term of such court, which is forbidden by the statute, “ unless for good cause shown, or by consent.” Code, § 3536.

The award was, in our opinion, made within the time agreed by the parties. The agreement of counsel was dated September 1, 1883, and provided that the arbitrators should make their award in thirty daj's from date. This time did not expire until after the lapse of October 1st following, which was included within these thirty days, according to the established rule for computing the time within which any act is provided by law to be done. — Code, 1876, § 11. The award in controversy was not only made, but was formally reduced to writing, and signed by the arbitrators, within the prescribed time.

The award certainly determined with all proper certainty the matters of controversy which purported to be submitted to arbitrament. It could not, therefore, be inquired into, nor impeached for any mere want of form or irregularity, this being the express provision of the statute. So, the statute also declares that such award, when rendered in substantia] conformity to statutory requirements, is final and conclusive between the parties, “ unless the arbitrators are guilty of fraud, partiality, or corruption in making it.” — Code, § 3547. It was not competent, in view of this provision, to assail the award, or contest its validity, by the parol testimony of the arbitrators, or of others, upon the ground that they committed mere error or mistake in reaching their adjudged conclusion. There is no attempt to show fraud, partiality, or corruption. — King v. Jemison, 33 Ala. 499.

The successful party had the lawful right to have the award and the submission returned to the clerk of the court from which the order for arbitration emanated; the statute so expressly providing, and declaring further that such award, when thus returned, should have “the force and effect of a judgment at law, upon which execution may issue as in other causes.” Code, | 3541, The duty of making this return, especially *406after the award had been once delivered to the clerk, and was afterwards, by his consent, taken by one of the arbitrators from the clerk’s office, was a mere ministerial act, requiring no exercise of judgment or discretion whatever on the part of the arbitrators. The result reached being final, the arbitrators had no further control over the award, without the consent of all the parties litigant. — 2 Pars. Contr. (6th Ed.) 712. We entertain no doubt of the proposition, that m,cmdamus would lie in such a case, the petitioner having no other adequate relief; for no appeal would lie from the award, until it had been entered up as the judgment of the court. — Collins v. L. & N. Railroad Co., 70 Ala. 533; The State, ex rel. Pinney v. Williams, 69 Ala. 311; Ex parte Shaudies, 66 Ala. 134.

We find no error in any of the rulings of the court, and its judgment, granting appellees’ motion to enter judgment upon the award, must be affirmed.