Ogden v. Forney

33 Iowa 205 | Iowa | 1871

Cole, J.

l. Stamps : effect of omission. This appeal is from an order setting aside an award of arbitrators. The motion to set aside specified three grounds : First. The submission has no TT „ , _ n -vr m , u. b. revenue stamp. Second. No affidavit of the arbitrators was made by them and returned with the award. Third. The award does not follow the submission.

As to the first ground, there is no showing of any intent to evade the provisions of the revenue law, without which it cannot be made available. Mitchell v. Home Ins. Co., 5 West. Jurist, 534; S. C., 32 Iowa, 421; Campbell v. Wilcox, 5 West. Jur. 207; S. C., 10 Wall. 421. And as to the third ground, it is apparent from the award and the submission, both of which are in the abstract, that the one does follow the other. This objection cannot be sustained therefore.

2. Arbitration and award: affidavit of arbitrators. The only remaining ground is that no affidavit of the arbitrators was made and returned with the award. The abstract shows an affidavit properly signed and , . X X «/ O with'jurat annexed, made on the 25th day of J ’ .. , . , J , February, 1871, and as it returned with the submission and award. The defendant, Forney, submitted in support of his motion an affidavit of his attorney and one of the arbitrators, to the effect that the affidavit so annexed to the submission and award was, in fact, made or signed within the then last two or three days. These affidavits were met by the affidavits-of the plaintiff, his attorney, the two other arbitrators, and the justice of the peace before whom the arbitrators were sworn, all to the effect, that the arbitrators were in fact sworn before they entered upon their duties and at the time mentioned in the jurat, and that it was agreed between the parties (not by the arbitrators simply, as claimed in appellee’s argument) that the oath might be reduced to writing and signed by the arbitrators after the trial, and that they signed the affidavit on file in pursuance of said agreement.

It was error, in view of all these affidavits, for the court to sustain the motion on this ground. The arbitrators were duly sworn; their affidavit was on file with the submission and award, and the failure to file it at the technically proper time, was in consequence of the defendant’s agreement, and of which he ought not to be permitted to take advantage. Sears v. Sellew, 28 Iowa, 501.

Reversed.