190 Iowa 1259 | Iowa | 1920
After the attempted withdrawal of S. T. Farmer, and his refusal to further participate in the proceedings, Kelly and German prepared, signed, and swore to an award, largely favoráble to the Ames-Farmer Canning Company, and caused same to be filed in the office of the clerk of the district court of Polk County, where the agreement provided that judgment might be entered. Thereupon, counsel for the canning company filed a motion for judgment. The Farmers and the Dexter Seed Company appeared, and filed sundry and numerous objections to
Section 4386 of the Code of 1897, providing for the submission of controversies that may be the subject of a civil action to arbitration, is as follows:
“The parties themselves, or those persons who might lawfully have controlled a civil action in their behalf for the same subject-matter, must sign and acknowledge a written agreement, specifying particularly what demands are to be submitted, the names of the arbitrators, and court by which the judgment on their award is to be rendered.”
Code Section 4396, providing for the filing of the award of the arbitrators in a matter thus submitted to them, and for judgment thereon, is as foffows:
‘ ‘ The award shall be entered on the docket of the court at the term to which it is returned, as an action is entered, and shall be called up and acted upon in its order, but the court may require actual notice to be given to either party, when it appears necessary and proper, before proceeding to-act on the award.”
Code Section 4397, providing for the rejection or resubmission of the controversy to the arbitrators by the court, is as follows:
'' The award may be rejected by the court for any legal and sufficient reasons, or it may be recommitted for a rehearing to the same arbitrators, or any others agreed upon by the parties, or appointed by the court if they cannot agree.”
The sections following provide that, when the award has been filed and adopted, it shall have the same force and effect as the verdict of a jury, and that an appeal from a judgment thereon may be taken to the Supreme Court. Acknowledgment of the written agreement by the parties is imperative, and therefore necessary to confer jurisdiction upon the court designated for that purpose to cause judgment to be entered upon the award, when filed and adopted, as required by the statute. Fink v. Fink, 8 Iowa 313; City of Marion v. Ganby, 68 Iowa 142; Wilkinson v. Prichard, 145 Iowa 65; Barney v. Flower, 27 Minn. 403 (7 N. W. 823); Burkland v. Johnson, 50 Neb. 858 (70 N. W. 388); Gessner v. Minneapolis, St. P. & S. S. M. R. Co., 15 N. D.
It is true that an instrument acknowledged before a notary disqualified because of interest is valid between the parties, but the most that could be claimed for this rule, as applied to the case at bar, is that a defective acknowledgment would not prevent the award from being enforced under Section 4395 of the Code. The objection that the notary was disqualified applies to the acknowledgment of the officers of the canning company on February 12th, and to the separate acknowledgment by all of the parties on the same day. We cannot agree with the contention of counsel for appellee that these acknowledgments are valid because the position of the canning company and its relation to the subject-matter of the arbitration were simply that of grantor. Even if that fact were conceded, the acknowledgment would be valid. The interest of the corporation in the several items involved in the submission was direct and positive. The judgment entered in its favor, which involved an item of $5,000 for liquidated damages, is in excess of $20,000. As a stockholder in the corporation, the notary was directly and beneficially interested ; the position of the corporation was that of a claimant against the Farmers and the Dexter Seed Company, and not of a grantor. Courts have, with great uniformity, held that acknowledgments taken and certified by an interested notary are invalid, and that the record thereof does not impart notice to third parties. This court, in Empire R. E. & M. Co. v. Beechley, supra, held that proof of publication of an original notice, sworn to before the plaintiff, a notary public, was a nullity, and that the court, in that case, did not acquire jurisdiction to render a decree quieting title to real estate.
In that case, the acknowledgment of all the parties was taken and certified after the hearing before the arbitrators opened, but before an award, in which all arbitrators participated, was agreed upon. The court held that, while this was somewhat irregular, it fully met the purpose of the acknowledgment. In the case at bar, neither of the Farmers, on behalf of themselves or the Dexter Seed Company, consented to the acknowledgment
have been sustained by this and other courts. Struthers v. Clark, 40 Iowa 508; Lyon v. Sanders, 3 G. Greene 332; Hoste v. Dalton, 137 Mich. 522 (100 N. W. 750); Southern Ind. Power Co. v. Cook, 182 Ind. 505 (107 N. E. 12); Palmer v. Lavers, 218 Mass. 286 (105 N. E. 1000) ; United States C. S. R. Co. v. Chaddock & Co., 173 Fed. 577.
The award, if binding, is as a common-law award. Whether it is binding, we do not decide; but neither party directly or impliedly waived the right to question the jurisdiction of the court to enter judgment. A judgment entered without jurisdiction is void, and objections thereto may be raised for the first time in this'court or by the court, if deemed necessary. Ft. Dodge Lbr. Co. v. Rogosch, 175 Iowa 475. The motion filed by counsel for the canning company to dismiss the appeal, in so
It is our conclusion that the failure of the parties to validly acknowledge the articles is fatal to the jurisdiction of the court, and that the judgment entered cannot be permitted to stand. Questions of fraud, partiality, and misconduct on the part of the two arbitrators signing the award need not be given consideration, and might possibly arise in future litigation; and we express no opinion thereon, either as to the fact, or sufficiency thereof to impeach the proceedings as a common-law arbitration.
■ It follows that the judgment of the court below must be and is reversed, upon the sole ground that same was entered without jurisdiction. — Reversed.