Harding v. Wallace

| Ky. Ct. App. | Jul 26, 1848

Chief Justice Marshall

delivered the opinion of the Court.

Whatever errors may have occurred to the prejudice of Wallace, the plaintiff in the action, on the trial in Court, they are rendered unavailing to him, and immaterial to the result of the case, by the conclusion to which we have come, that the Court erred to the prejudice of the defendant, in quashing the award which had been previously made under the order of reference, and in not rendering judgment thereon. There was, so far as appears, no defect in the award, nor irregularity in the proceedings of the referees, which authorized the quashal of the award, --and the further proceedings in the case.

1. The order of reference did not require the award to be returned to the next term of the Court, and not having been set aside, remained in force.

2. The requisition of the statute as to the immediate delivery of copies of the award to the parties, is substantially complied with by delivering copies fifteen days before the term of the Court to which the award is returned. And the entire failure to deliver the copies, is but a ground of continuance at that term: (2 Bibb, 161 ,Sfc.)

3. The award is certain to every reasonable intent, as it decides expressly that the plaintiff is entitled to recover nothing, in the suit, and that the defendant should have his. costs.

4. The objection that the arbitrators,had mistaken the law of the case, and allowed improper evidence, or ad-Suited a defence not allowed by law, is not supported by any evidence adduced on the 'motion to quash. And If the alledged error of the referees had be’en apparent tin the face of the award, or established by evidence, it could no t have been available against the award, unless so far as It might establish “corruption, partiality, or urn Hue means,” as having produced 'the award: (Q Ri&fr, 160;) and no charge of that kind is made or proved.

B. A. Monrtíe for plaintiff; Cates anil Gray for defendant. That arbitrator» admitted improper testimony, is not a valid objection to an award, unless k show corruption, partiality, or undue ‘means to produce the award. Where ihe party attended by his counsel, «and the party Himself a nonresident, the Want of'notice i« waived.

5. The presence -of ‘the plaintiff’s attorney when the referees proceeded to act, and his failure íhen to object for want -of notice, removes the ground 'of objection that the plaintiff had not been notified in writing, and especially as the plaintiff was a non-resident. If the place of making up the award were material, there is Sio proof that It was not made, as it states, at the court house, &c.

The ^objections'made to the award being thus either unavailing in point of law, or unsupported in point of fact,it should have beenmade'tbe judgment'of the Court.

Where’fore, the judgment for the plaintiff, Wallace, is reversed,'and the cause remanded, with directions to enter up the award returned by the referees, and make the same the judgment of the Court