King v. Jemison, 33 Ala. 499

King v. Jemison

33 Ala. 499 | Ala. | 1859

STONE, J.—

In the case of the president and directors of the Tuskaloosa Bridge Company v. Jemison, during the present term, we announced principles which must be regarded as decisive of the principal question in this cause. The submissions in that case and in this are substantially alike; and inasmuch as each submission is in writing, signed by the parties, contains a concise statement of the matter in dispute, and refers the determination thereof to certain named arbitrators, we hold that the submission was under the Code, and must be determined by its provisions.—§§ 2710-2721, inclusive.

The principles asserted in Hickey v. Grooms, 4 J. J. Marshall, 124, are not opposed to this view. In that case, the parties referred a special matter designated in the submission, and all other matters in contest between them, to arbitration. The court of appeals of Kentucky, under a statute similar to ours, as we gather from the opinion pronounced, ruled, that the “other matters in contest” between the parties were not sufficiently identified to be brought within the statute. "We agree with that court, that the language there employed was not a “ concise statement in writing of their controversy.” As to the “ other matters in contest,” it was no statement at all; gave no information of what those other matters were. In the present record, the matters submitted are certain difficulties in relation to the said Columbus bridge. This, we hold, is a statement in writing of the matter in dispute, and sufficiently identifies it.

[2.] It is objected, that the arbitrators did not determine the matter or controversy submitted, because they did not,-in terms, pronounce on the difficulties existing between the Columbus Bridge Company and King. The record does not sustain the appellant in this position. The award finds, and asserts as a fact, “ that the said King and Jemison are equal owners of all the stock in said bridge-company.” It then proceeds to “settle the profit and loss of said stock upon the basis of their equal inter*508est and ownership of said stock.” Now, if this bo true— and we are bound to regard it as true, unless the arbitrators were guilty of fraud, partiality or corruption—then the Columbus Bridge Company was, in fact, but a chartered partnership ; and the settlement of all difficulties existing between King and Jemison, the partners and owners of all the stock, was necessarily a settlement of all difficulties between the bridge-company and each of the partners. ~We hold, then, that on the face of the award, the matter or controversy submitted does appear to have been determined.

[3.] The testimony offered by King, when the award was sought to be made the judgment of the court, could, at most, only tend to disprove one of the facts recited and found by the arbitrators—namely, that the said King and Jemison were equal owners of all the stock in said bridge-company. If facts found by arbitrators could be retried and overturned in this way, arbitrations, instead of being a mode of settling disputes, would become tbe initiatory step to litigation. This, too, in direct opposition to the statute, which declares they are final, unless attacked for fraud, partiality or corruption.—Code, § 2721. There was no error in disregarding that testimony.—Young v. Leaird, 30 Ala. 371.

[4.] The appellee, Jemison, under the agreement endorsed on the record, assigns as error the judgment of the circuit court in quashing the execution issued by the clerk. This assignment must be sustained. It is true that, under section. 2710 of the Code,-the award, if not performed, is directed to he entered up as the judgment of the proper court. It is equally true that, under section 2714 of the Code, the award has the force and effect of a judgment at law, upon which execution may issue as in other cases, if the award is not performed in ten days after notice and delivery of copy. There is no right to have an execution, or to have the award made the judgment of the court, if the award is performed as contemplated by the statute. If tbe award is not performed within ten days after notice of tbe award and delivery of a copy thereof, then execution may be sued out. If a term of *509the circuit court be held in the county, in which the award is made, before such award is performed, then the -award may be made the judgment of the court.

The judgment of the circuit court, so far as the same is appealed from by King, is affirmed. The judgment of the court quashing the execution is reversed. Let the appellant, King, pay the costs of the appeal