127 N.W. 519 | N.D. | 1910
This is an appeal from a judgment entered on an award of arbitrators, and also from an order thereafter made denying defendant’s application to vacate such award and the order for judgment thereon. The agreement to arbitrate is in the usual form, and no question is raised regarding its validity. Pursuant to the agreement the two arbitrators selected by the parties appointed a third arbitrator. Thereafter, and on November 27, 1907, the board of arbitrators, by the consent of both parties, who waived notice of the meeting, met, heard testimony, and made its award in writing in favor of respondent and against appellant for the sum of $834.90 and the sum of $15 costs, which award was duly signed and acknowledged hy each member of such board and filed. Thereafter these arbitrators, deeming such award irregular and void for the reason that they had not taken and subscribed an oath as required by § 7695, Rev. Codes 1905, issued a notice signed by them designating January 2, 1908, at 1 o’clock p. m. as the date, and the office of Maddux & Rinker, New Rockford, as the place for another hearing, which notice they caused to be duly served on the parties. At the appointed time and place such board met, the respondent appearing in person, but no appearance being made by appellant. Thereafter and on said date such arbitrators made their written award corresponding in amount with the
In the preparation of their brief appellant’s counsel proceeded upon the theory that thé case is in this court for trial de novo. In this they are in error. The statute governing appeals in cases triable to the court without a jury has no application to the case at bar, and we can only review on this appeal the alleged errors of law appearing in the record, duly excepted to. A statement of the case was duly settled embracing a specification of errors, which specification is incorporated in appellant’s brief, and will be treated as assignments of error. Such specifications of error number seven, but as they all relate to the correctness of the rulings affirming the award, denying defendant’s motion to vacate such award and in ordering and entering judgment thereon we shall dispose of them together.
It is nowhere contended by appellant that the award is not a just and meritorious settlement and disposition of the disputed questions submitted to the board. But his’contentions, briefly stated, are: (1) That the powers of the board ceased November 27, 1907; or (2) such powers were legally revoked by him prior to the making of the award on January 2, 1908, and that as a necessary conclusion the court erred in refusing appellant’s motion to vacate such award and the order affirming the same.
Were we to concede the correctness of both contentions we would not be prepared to agree to the conclusion of appellant’s counsel. But, first, let us see whether the powers of the board were revoked as contended. If revoked, such revocation must have been effected prior to the final submission of the cause to the arbitrators for their decision. By § 7711 of the Code it is provided that “neither party shall have power to revoke the powers of the arbitrators after the cause shall have been finally submitted tó them- upon a hearing of the parties for their decision.” In the light of this statutory provision the question as to whether appellant revoked the board’s powers is manifestly a question of fact depending upon the proof submitted with reference to the time when the notice of such attempted revocation was served,. — ■ whether prior or subsequent to the time the cause was finally submitted
A consideration of appellant’s other contention, namely, that the powers of the board ceased on November 27, 1907, at the time of making and filing the first award, leads us to the belief that the same is correct, but we reach this conclusion. for reasons widely different from those advanced by appellant’s counsel. • We think the first award was valid, — not void, as counsel assume. There is nothing in the record to warrant the conclusion that such award was a nullity. While the arbitrators, some time after such award was made, signed and caused to be served on the parties a notice of another hearing containing a recital of the mere conclusion that they deem such award irregular and void, we are unable to find any justification therefor in the record. While two of the arbitrators in their affidavit, which was used by appellant on his motion to vacate the order affirming the second award, give as their reasons for thus deeming the prior award void, “that the arbitrators were not sworn before making the first award filed herein on the 27th day of November, 1907, nor were any witnesses sworn in any hearing before making such award,” such proof was incompetent and cannot be considered. Appellant nowhere challenges either the validity or the justice of such first award. It nowhere appears that either party, although both were present, objected in any manner to the failure of the arbitrators to take the oath or cause the witnesses to be sworn, even if such irregularities occurred; but, moreover, there is no competent proof before us that any such irregularities in fact occurred. It is well settled that arbitrators will not be permitted to impeach their award. The settlement mf disputes by arbitrators is favored by the courts. Furthermore, a failure to object to such irregularities, conceding they occurred, operated as a
We must therefore dispose of this appeal on the assumption that the first award was valid. Such assumption necessitates the conclusion that the second award was made without authority. The powers of the board were exhausted upon the making and filing of the first award. As soon as they made and filed such award the arbitrators became functus officio.
It does not follow from this, however, that the judgment and order must necessarily be reversed. With the exception of the costs the two awards are identical in amount. This being true, we fail to see how appellant was in any way prejudiced except to the extent of the excess of costs in the second award over those found in the first. If the judgment is modified in respect to such costs so as to conform to the award first made we fail to see how appellant is in a position to complain. The judgment will be thus modified. Appellant is not in a position to ask for any greater relief. In making his motion in the court below he was in the attitude of appealing to the favor of the court. He was duly notified of respondent’s application for an order affirming the award. He resisted such application, but saved no exception to the adverse ruling thereon. Whether an exception to such ruling was necessary we need not here determine. Appellant predicates error upon the ruling denying his motion, submitted on April 20, 1908, to vacate said award and the order for judgment. It was not error to deny such motion for two reasons: (1) The subject-matter of such motion had been previously passed upon and determined by the district court; and (2) appellant did not bring himself Avithin any of the statutory grounds enumerated in § 7699, Rev. Codes 1905, for the vacation of an award. That section is as follows: “Any party to such submission may move the court designated therein to vacate the same upon either of the following grounds: (1) That such award Avas procured by corruption, fraud or. other undue means; (2) that there
The order affirming the award and the judgment entered thereon cannot be said to be void or prejudicially erroneous except to the extent that the second award allowed costs in excess of those determined in the first award. Nothing would be gained by a reversal of such judgment. On the contrary, further litigation would, no doubt, result therefrom. While the first award, so far as the record discloses, has never been -affirmed, and the time for making application for an order affirming the same has elapsed, it is, we think, clear that an action would lie at the suit of respondent on such award and judgment could no doubt be obtained thereon. Section 7710, Rev. Codes 1905, expressly so provides. It reads: “Nothing in this chapter shall be construed to impair or affect any action upon an award or upon any bond or other engagement to abide by an award.” In view of this nothing could be gained by appellant, even if we should grant him the relief prayed for.
It is accordingly ordered that the District Court modify its judgment herein in conformity with this opinion, and, as thus modified, the same will be affirmed, but without - costs to either party in this court.