Davis v. Forshee

34 Ala. 107 | Ala. | 1859

STONE, J.

While a suit, in its ordinary form, is pending in the circuit court, the plaintiff may, at any time before verdict tendered, submit to a voluntary non-suit. When, however, the parties to a suit refer the settlement of the controversy to arbitrators, and such arbitrators make and return to the court their award, in conformity with the provisions of the Code, (pages 494-5,) a different rule prevails. An award made under these circumstances, if it comply substantially with the provisions of the statute, “must be entered up as the judgment of the proper court.” A plaintiff, in such ease, is not authorized to take a nonsuit.

[2.] Although section 560 of the Code declares, that “no judge, chancellor, county commissioner or justice of the peace, must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of consanguinity or affinity we have no statute which declares any such disability in the matter of arbitration. A material reason on which the rule stated above rests, does not apply to arbitrators. Parties may be drawn against their consent, before judges, chancellors, county commissioners and justices of the peace; and usually they have little or no choice in the matter. These are officers appointed by the law, and suitors must submit to their orders. Arbitration, in this State, is never compulsory. Parties voluntarily elect this mode of adjustment, and appoint their own arbitrators. We know no reason why persons related to suitors within the fourth degree, may not, if chosen, act as arbitrators, and make a binding award. Volenti non fit injuria.

The fact that in this case the arbitrators were named and chosen by the clerk of the court, cannot alter the principle. This power was expressly conferred on him by the terms of the submission ; he acted as the agreed ag-nt of both of the parties; and we must presume, in the absence of evidence to the contrary, that the persons selected were satisfactory to the parties litigant. The maxim applies, qui facit per alium, fac-it per se.

In the two points we have been considering, we think it would lead to monstrous results, if parties could submit their controversies to arbitration — speculate on the chances of success, and, after ascertaining that the award was adverse to their wishes, then relieve themselves of its consequences, by either suffering a nonsuit, or raising the objection that one of the arbitrators who sat in the cause was related to the adverse party within the fourth degree of consanguinity or affinity. — See Heydenfeldt v. Towns, 27 Ala. 423.

[3.] Section 2721 of the Code declares, that awards, made substantially in compliance with the provisions of the statute, are final, unless the arbitrators are guilty of fraud, partiality or corruption in making it. The objections urged why the award in this case should not be made the judgment of the court, did not impute fraud, corruption or partiality to the arbitrators; and those objections were rightly overruled. — King v. Jemison, at the present term, (33 Ala. Rep. 499.)

The judgment of the circuit court is affirmed.