16 Tex. 516 | Tex. | 1856
The petition for the writ of error contains more certainty of description, than in the case of Wright v. Williams, (12 Tex. R. 35,) in that it states the nature of the judgment. It could not be described by the amount, for the reason that it was for no certain sum. This is stated, and distinguishes it from any other judgment rendered for any certain amount. Though the description of it is less certain than it might have been, still we think it may be held sufficient under the practice of the Court; which lias been, as far as possible, to facilitate the remedy by dispensing with forms. The only effect of sustaining the motion would be to impose upon the party the needless expense and delay of proceeding anew.
It has been ruled expressly, (Roberts v. Sollebullus, 10 Tex. R. 352,) and is well settled by the uniform practice of the Court, that an averment in the petition for the writ of error, that the defendant in error is not a resident of the State,
The case was submitted to the Court on the motion of the appellant to have judgment entered upon the award, the objections of the appellees, and the exceptions of the appellant to the legal sufficiency of the objections. The Court overruled the exceptions and sustained the objections to the award, on the ground that the submission to arbitrate was not in accordance with the statute, and, consequently, the award not a good, statutory award.
If the Court was right in its judgment, it must be because, by the agreement of the parties, the two arbitrators chosen by them were empowered to choose and did choose a third arbitrator or umpire, before they had heard the evidence and ascertained that they could not agree: for in every other respect, there was a literal compliance with the statute. It cannot be doubted that the parties have adopted and pursued, substantially, the statutory remedy. If they have not entitled themselves to all the benefits of that mode of trial, it is because there has not been a technical compliance with the very letter of the statute, in respect to the time of choosing an umpire ; and because the proceeding under the statute is to be construed strictly, so as to require an exact, technical, and literal compliance with its provisions. It must be admitted that this would be to apply to this statute and the proceedings under it, a strictness of construction which has never been applied, and is not warranted by any principle by which Courts are governed, in the construction of statutes regulating civil proceedings in general. Such strictness is applied only in the construction of penal statutes, or proceedings under statutes which, it is deemed, may operate harshly or oppressively : as proceedings under attachment laws ; which are construed strictly, and sometimes even literally, in reference to the re
It seems clear upon principle, that there was no material departure from the substantive provisions of the' statute. But we find authorities in point, which are decisive of the question. It will not be denied that the same rule of construction should be applied to the words and provisions of the statute, as to those of an agreement to arbitrate in the absence of the statute. That is, the terms or words employed in the statute, should receive the same construction, as the same terms or words in an agreement, by which a case was submitted to arbitration. The rule of construction applicable to each, is, in this respect, the same ; they are to be alike construed according to the intention of the parties who made them. In the one case, we look to the intention of the Legislature ; in the other, to the intention of the parties to the contract or agreement.— The same intention must, in general, be collected from the same words, whether employed in a statute, or in- á written agreement between parties. (9 B. & C. 752.) And in the case of Van Courtlandt v. Underhill, (17 John. R. 405,) where the agreement was to submit the matter in question to the decision of two persons, indifferently chosen by the parties, who were, in case of their disagreement, to choose a third, it was held that the arbitrators chosen might nominate an umpire, before ascertaining that they could not agree. So in the case
It may be true, in point of fact, that, in entering into their agreement to arbitrate, the parties did not contemplate a proceeding under the statute. Whether they did or not, cannot be certainly known from anything in the record. Nor is it material. They proceeded under the statute, and have substantially complied with its provisions ; and the award must,
We deem it unnecessary to consider separately the several other objections urged to making the award the judgment of the Court. We have heretofore decided that, although the parties to a statutory award have not reserved the right of appeal, and have stipulated that the award shall be final; still, the Court may refuse to enter judgment upon it, and may set it aside, for the causes for which a Court of Equity will set aside a common law award. But if it be not set aside for such cause, it must be made the judgment of the Court. To authorize the interference of a Court of Equity in the case of an award, we have held, there must appear to have been fraud in the party, or partiality, misconduct, or gross mistake on the part of the arbitrators. (Payne v. Metz, 14 Tex. R. 56.)— Where an award is within the submission, nothing, in a word, will be a sufficient objection to making it the judgment of the Court, under the statute, which would not be sufficient to set it aside in a Court of Chancery. There is no pretence that
The objections to the award in this case, taken together, amount, in substance, to this : that it was too favorable to the plaintiff, allowing him more than he was justly entitled to ; and too unfavorable to the defendants, in disallowing their claim in reconvention ; of which, they aver, there was suEcient evidence. If causes, such as these, were suEcient to set aside an award, there would seldom be one—certainly not in any litigated or contested case—which would be final. It is not impeached upon the ground of partiality, or corruption; or any mistake in law or fact, on the part of the arbitrators ; misconduct in the party; or any ground whatever, which has ever been held suEcient to set aside an award.— The grounds of impeachment amount to no more than mere errors in judgment; which cannot be held suEcient to warrant setting it aside, or refusing to make it the judgment of the Court. That an award cannot be impeached merely for erroneous judgment, is well settled. (6 Harr. & J. 10.) Nor will a Court of law or equity interfere to disturb an award of arbitrators, on the ground of mere mistake of law or fact. To authorize an interference on the ground of mistake in judgment, the mistake must be very gross. (2 Hen. & M. 408 ; 4 Porter, 65 ; 2 Dev. Ch. 250; 1 U. S. Eq. Dig. tit. Abb. & Aw. IV.)
The award is subject to no exception on its face; nor is there anything in the record to impeach it. Being a good statutory award, and not impeached for any suEcient cause, the Court ought to have entered judgment upon it, as the statute directs. (Hart. Dig. Art. 13.) And because the Court erred in sustaining the objection to the award, and refusing to give judgment upon it, the judgment must be reversed, and such judgment be here rendered as the District Court ought to have rendered.
Reversed and reformed.
That the statute providing for the settlement of disputes by conciliation or arbitration, should be liberally construed in order to carry out the object of the parties in arbitrating under the statute, we have never for a moment doubted., So said this Court in the case of Offeciers v. Dirks, Owens v. Withee, and other cases. In the argument of this cause, we said not one word against the correctness of this proposition ; but we did then attempt to assume the position, upon which the case was decided by the District Judge, and to which we now beg leave to call the attention of the Court, that in order for the District Court to have power to render a judgment against a party, such party must come before the Court in some form known to the law. There must be a suit in which the party against whom the judgment is proposed to be rendered, is a party; or rather, there must be a case in Court, brought there in some of the modes known to the law. The Constitution, Art. 4, Sec. 10, provides that the District Court shall have jurisdiction of all suits, complaints and pleas, &c., where the matter in controversy shall be valued at or amount to one hundred dollars, exclusive of interest. And the Supreme Court has appellate jurisdiction only over such suits, &c. (Hart. Dig. Art. 2913.) Arbitration under our statute is a mode of suit, and a suit must be brought in the forms required by law. An arbitration may be perfectly good and binding, and the award of the arbitrators will be enforced by the Courts in a suit on the award, although the arbitration be not under the statute or in Court. To have a proper arbitration under the statute, there must be an agreement in writing to arbitrate under the statute. The statute provides (Hart. Dig. Art. 7,) that all persons consenting to submit any dispute, controversy or right of action, supposed to have accrued to either party, may, by an agreement
Nor is there one word in this entire agreement that even squints at an arbitration under the statute ; on the contray, is it not patent on the face of it, that there was no intention that it should ever go into any Court, either District or Justice’s ?
The award may be good as a common law award outside of the statute, and if so, the party has his remedy by suit, where the question as to the validity of the award could be made ;
In the case of Owens v. Withee, (3 Tex. R. 164,) Judge Lipscomb delivering the opinion of the Court, says : “ that “ the parties intended to follow the provisions of the Act of the “ Legislature, entitled, “ An Act to authorize the settlement of “ disputes by conciliation or arbitration,” there can be no “ doubt, and if the provisions of the Act have been substantial- “ ly followed, the award should not be defeated for mere mat- “ ter of defect in form.” In this case the arbitration agreement provided that the arbitration should be “ according to “ the statute in such cases made and provided.” In the case of Cox v. Giddings, (9 Tex. R. 46,) Judge Wheeler delivering the opinion of the Court, says : “ It was doubtless the inten. “ tion of the parties, to avail themselves of the provisions of the “ Act of 1846, (Hart. Dig. p. 89,) in submitting the case to arbi- “ tration.” In both of these cases the parties provided for arbitration under the statute, on the face of their agreements. Yet the Court say in both cases, that the proceedings were void, because the parties had not in all things in their agreement followed the statute. They had undertaken to provide for more than three arbitrators, the number fixed by statute.— Now, one would suppose that the spirit and object of the statute was the settlement of disputes by amicable conciliation, yet the Court say that the shell of the statute must be preserved ; that three arbitrators and three only can be provided for by the arbitration agreement, or everything will be vitiated, although the parties in their agreement expressly provide
But were we in error in relation to the foregoing proposition, still we say that this Court should not reverse the judgment of the Court below, and render a judgment against us for the amount of the award.
The proceedings show that we filed objections to the award, to which the plaintiff in error excepted. No action was taken on the exceptions or on our objections, except in so far as the objections went to the jurisdiction or power of the Court to act upon the matter, it not being a statutory award. The bill of exceptions taken by plaintiff in error states “ that the Court “ decided upon the face of the record and proceedings, that “ this was not a submission in conformity with the statute en- “ titled “An Act to authorize the settlement of disputes by “ conciliation or arbitrationthat the Court had no jurisdic- “ tion of the matter.” Now our laws allow parties to amend their pleadings, where they are defective ; and had the Court below sustained the exceptions filed to our objections, we would of course have been allowed to amend and set up the matters of objection to the award in such manner as would have allowed us to introduce proof that would undoubtedly have set aside the award ; but under the ruling of this Court in the case, we, having been so unfortunate as to have the opinion of the Court in our favor upon one point made by us, and which dismissed the cause, are now precluded from having the benefit of a chance to amend and present the case in a proper manner. Had the exceptions been sustained, and our objections decided to be badly taken, and we had not offered to amend, then we could have had no reason to complain of the action of this Court upon this branch of the cause ; but such was not the case, and we never had the opinion of the
We respectfully ask the attention of the Court to the positions—First: That the proceedings and award were not under the statute, and the Court below decided correctly in saying it had not jurisdiction in the matter. Second : If we are in error in this, then we most respectfully insist that the cause should be remanded, with leave to defendants in error to amend.
M. M. POTTEB,
Attorney for defendants in error.
It may be doubted whether, in entering into their agreement to arbitrate, the parties had it in contemplation to proceed under the statute. There is nothing in the agreement, or in the record, which is decisive as to what their intention in that regard was at that time. Though the agreement was entered into in New York, it makes an express reference to the laws of Texas ; showing that it was the intention of the parties thereto, that the arbitration should take place in this State, and should be such as to be binding by the laws of the State. But it is unimportant whether, at that time, the parties had in view an arbitration under the statute, or not; or whether they so much as knew that there was a statute
As respects the judgment which this Court should render, holding the award a good statutory award, there can be no question. The question in the District Court was upon making the award the judgment of the Court. That the Court was bound to do, as a matter of right and of course, unless suf
We have attentively considered the argument in support of the application for a rehearing, and see nothing to suggest a doubt of the correctness of our former opinion. Indeed, the ease has seemed to this Court so entirely free from doubt or-difficulty, that, but for the respect due the opinion of the Court below, and the argument of counsel in support of that opinion, we should not have deemed it necessary, or appropriate, to discuss the question, raised in argument, so much at length.
We are of the opinion that the application for a rehearing be disallowed.
Rehearing refused.