19 Wis. 261 | Wis. | 1865
By the Court,
The motion to vacate the award was met by'the counter-motion to confirm it. The latter motion was founded on the written submission, the report made in pursuance thereof in writing by the two arbitrators, the papers thereto annexed, the minutes of the testimony taken by the arbitrators on the trial, and all other papers relating thereto filed in the office of the clerk of the circuit court. Roth motions were heard together, and the appeal is from the judgment rendered on the award. Under these circumstances we suppose all the affidavits and testimony used on the hearing of the two motions are before us, and must be considered. It was claimed on the part of the respondent that we could not look into this evidence, because it had not been preserved by a bill of exceptions. In such a case we do not understand it to be necessary to incorporate the testimony in a bill of exceptions in order to enable this court to review it on appeal. For our statute provides that where an appeal is brought from a judgment entered upon an award, certified copies of the original affidavits upon which any application in relation to such award was founded, and of all other affidavits and papers relating to such application, shall be annexed to, form a part of, and be returned with, the record of the judgment. Sec. 17, chap. 131, R. S. Such affidavits are therefore made a part of the judgment roll and record in the cause. Sec. 16. Hence no bill of exceptions is necessary to bring them to the record.
The arbitrators doubtless exceeded their powers in awarding the costs and disbursements of the trial before them, including their fees and the rental of the room, against the appellant. The submission gave them no authority to include these expenses in their award ; and where that is the case, the following cases, cited by the counsel for the appellant, show that they have no right to award in respect to the costs and expenses of the arbitration: In the matter of Vanderveer, 4 Denio, 249 ; The People v. Newell, 13 Barb., 86, and authorities cited by Justice Beaedsley in his opinion. Perhaps the award in this respect might be corrected, were there no -other objection to it. But for the reasons given upon the other point, we think the judgment confirming the award must be reversed.
Judgment reversed.