4 Cal. 1 | Cal. | 1852
delivered the'opinion of the Court.
This was an action in the Court below to recover
The defendants filed their answer denying generally all the allegations of the complaint, and the cause being thus at issue, the parties entered into a written stipulation, by which the whole matter was'referred to three persons, whose award was to be made the judgment of the Court, subject to all legal exceptions. The cause was not referred by order of Court, and the record contains no reference to the submission until after the award was made and produced in Court, together with the submission and judgment thereon.
Afterwards the defendants filed their motion to set aside the award for reasons specified, and also for a new trial oh the ground of newly discovered evidence. While this motion was pending, the parties entered into a written stipulation to refer the exception to the report, and motion for a new trial, to the Hon. Tod Robinson, then Judge of said Court, whose decision thereon, made at any time, should be entered up as judgment of the Court, as of the date of such submission.
After the submission, but before an award was made, said Robinson resigned his office as Judge of the Sixth Judicial District, but proceeded to determine said controversy, and decided the same in favor of the defendants, setting aside the award and granting a new trial.
This award was in writing and addressed to his successor in office, upon which the Court entered up an order in conformity with the finding of said Robinson. The plaintiffs objected to the entry of judgment upon said award, on the ground that it was irregular, illegal and void, which objections were overruled. From this decision the plaintiffs appealed.
It is unnecessary for this Court to examine the objection raised by the appellant’s counsel, that the motion for a new trial and to set aside the award, was not made within the time allowed by statute.
It will be observed then, to constitute a submission to arbitration under our statute, so as to give the award the effect of a judgment, the submission must be filed with the
The record in this case does not show any order or entry of the submission in proper form of law, or notice of motion for judgment. There is nothing but the stipulation to refer the case,- and the judgment thereon. The persons chosen to decide * the controversy are named as
Again, the statute provides that “a reference may be ordered upon the agreement of parties filed with the Clerk, or entered in the minutes of the Court.” It was admitted by the counsel for both parties, upon tñe argument, that an order of Court was necessary to constitute a reference under our statute, and no reference would be good, as such, without an order.
If this position is correct, then the finding of the first referees, as well as that of Judge Eobinson, is not properly a finding under the statute, as there was no order of Court in either ease, or agreement filed with the Clerk, or entered in the minutes. It was a voluntary withdrawal of the case from the jurisdiction of the Court, by which the Court lost all control over the cause, and had no authority to enter judgment upon either finding, except by consent of parties. It is not necessary for us to decide whether the motion for a new trial was submitted to Judge Eobinson, as Judge of the Sixth Judicial District, or as an arbitrator or referee, or whether a question of law can properly become the subject of arbitration. The award of the original referees and the award of Judge Eobinson stand in the same category, whether considered as the award of arbitrators, or the finding of referees under the statute, both having been made without an order of Court, or a compliance with the requisitions of the law. If it should be contended that they are common law submissions to arbitrament, then the plaintiffs have no standing in Court, and they must
Ordered accordingly.