4 Colo. 98 | Colo. | 1878
Section 3, chapter 5, of Revised Statutes, provides, that “arbitrators shall not have power to act hereafter until they take an oath before some person authorized by law to administer oaths,” etc. This provision is imperative. The legislature evidently intended to give to parties submitting their controversies to arbitration, a tribunal acting under the sanction of an oath; and no valid award can be made, under the statute, if the arbitrators, or any one of them, fail to take the oath prescribed. Walt et al. v. Huse et al., 38 Mo. 210; Toler v. Hayden, 18 id. 400; Inslee v. Flagg, 2 Dutch. 370 ; Jackson v. Steele, Sneed (Ky.), 21 ; Graham v. Hamilton, 1 Binney, 461.
A different rule has been laid down in Slew York, but under a statute, we think, materially different. Where an umpire acts it is equally necessary that he take the oath prescribed. Frissell v. Fickes, 27 Mo. 557.
A submission under the provisions of the statute, we think, was clearly intended by the parties in this case. The agreement of submission complies with the requirements <of the statute, and provides that the award be made a judgment of the court. The objection, therefore, that the umpire, James Y. Marshall, failed to take the statutory oath
The doctrine of these cases is based upon the propriety of carrying into effect the intent of the parties to the submission.
That cases may arise where a statutory submission, invalid for want of compliance with some formal requirement of the statute, should be enforced as a common-law submission, need not be discussed.
As the submission was under the statute, it must be presumed that the parties contemplated an adjudication of the controversies submitted by the sworn tribunal prescribed by the statute.
By intendment, this entered into and was a part of the contract of submission. They never agreed to a common-law submission — nor to abide the award of unsworn arbitrators. The court below was not at liberty to make a contract for the parties, or force upon them the finding of a tribunal, acting without the sanction of an oath.
The propriety of carrying into effect the intention of the parties to the submission, instead of being a reason for holding the award in this case good at common law, is a substantial and conclusive reason why it should not be enforced. Williams v. Walton, 9 Cal. 146 ; Allen v. Chase, 3 Wis 252 ; Denfield v. Ames, 20 Pick. 480.
The court below should have .sustained the motion to set aside the award ; and, in the absence of a re-submission, have proceeded with the cause as though it had never been submitted. Smith v. Smith, 28 Ill. 56.
Reversed.
