Henneigh v. Kramer

50 Pa. 530 | Pa. | 1865

The opinion of the court was delivered, by

Agnew, J.

If this were a case to be treated solely as a submission, award, and affidavit filed under the provisions of the 1st and 2d sections of the Act of 16th June 1836, the argument would be conclusive, that unless the authority of the arbitrators who made the award appeared affirmatively upon the face of the submission, no judgment could be regularly entered. But this was an amicable action in account render, and a reference entered in the court and filed on the 17th of August 1860. The actual reference took place afterwards, and the award was not filed until the 1st of March 1861. It was therefore spending action within the 6th section of the Act of 1836, and not a proceeding outside of the court, having no place within it, until the submission, award, and affidavit were filed, according to the first and second sections of the law. Wall’s Administrator v. Fife, 1 Wright 394, therefore rules this point; opinion by Justice Thompson. Now under the sixth section, the judgment is not founded upon the terms of the submission, but is the result of the award, which has the operation of a verdict when approved of by the court, “ and the party in whose favour such report shall be made, whether plaintiff or defendant, shall have judgment thereon, and the like process for the recovery thereof, as on a verdict in an action commenced by such party.” Thus the case is not dependent on the literal fulfilment of the terms of the submission, but goes back to thé approval of the court, the language of the section being' “ the award of such referees, if made according to the submission of the parties, being approved by the court, and entered on record, shall have the same effect,” &c. This case is not like that of Stokely v. Robinson, 10 Casey 315, where there was no submission; but we have a written submission, and a further clause that “ judgment shall be entered on the report of our said auditors, or those acting as such, to have the same effect as if regularly tried in court.” Whether the arbitrators making the report were regularly substituted by the parties for those named in the submission, was a fact for the decision of the court, before approval. The submission itself provided for substitution, and therefore a court would recognise those whom the parties themselves clearly recognised as invested with authority. The award stated on its face that the parties appeared, submitted their accounts and proofs, and were heard, and concluded with the award and an account. The defendant filed exceptions to the merits April 1st 1861, and supplemental exceptions January 29th 1862. In neither did he suggest any want of authority, but following up the merits, on the 16th of January 1861, presented his petition praying for a rule to show cause why the said account should not be sent back to the same auditors. The court granted this rule to show cause, upon the express condition that it was not to interfere in anywise with the rights of the plaintiff to proceed on the award. This rule to show cause was discharged by the court on the 17th day of February 1862, and it was not till then, after recognising the authority of the auditors by excepting to their award upon the merits only, and by solemnly asking the court to send back the case to be reheard before the same auditors, that for the first time we hear of an objection to the authority of the auditors, by taking a rule to show cause why the award should not be set aside on the ground of a want of authority. The defendant had said to the court in language of unmistakeable import, both implied and expressed, Let me go back before my auditors to be reheard. Rut when the court said, No, we see no ground for this, and we therefore discharge the rule to show cause why you should not go back, he turns around to the court, and says, in the face of the recital on the front of the award, and his own acquiescence for .almost a year, 'Now I object to this award, because it was made without authority. Clearly this objection is too late: it is a trifling with fairness and •justice, and a double dealing with the court. The following cases most conclusively decide that in such a case the court will not permit a party to escape the effect of his own conduct, but will” hold him to his waiver of any defect in the appointment of the arbitrators: Brooke v. Bannon, 3 W. & S. 382; Christman v. Moran, 9 Barr 487 ; Browning v. McManus, 1 Whart. 177 ; Graham v. Graham, 2 Jones 128 ; Mitchell v. Wilhelm, 6 Watts 259 ; Bemus v. Clark, 5 Casey 251.

The parties have put their own interpretation upon the words “ or those acting as such.” They appeared before those auditors, produced their accounts and proofs, were regularly heard by them, ■and suffered them to make out and file their award without objection, and after it came into court and was filed in a pending action, the defendant makes no objection to their authority, though he excepts, and excepts a second time after months of interval, to the •merits, and even asks the court to be permitted to go before them to be reheard; and only when the court refuses this request, and after nearly a year had elapsed, he for the first time asserts a •want of authority. In every respect except the change of the names of the auditors, the proceedings appealed to be regular on their face and pursuant to the terms of the submission. The court was justified by the conduct of the defendant in concluding that •the auditors were regularly substituted, or if any irregularity had occurred that it was fully waived by the defendant, and justified, therefore, in approving 'the award. This approval is evidenced by dismissing the exceptions and entering judgment on the award.

Judgment affirmed.

Thompson, J., dissented. Woodward, O. J., and Read* J., were absent.