Parker v. Eggleston

5 Blackf. 128 | Ind. | 1839

Dewey, J.

This was an action of debt on- an arbitration bond commenced before a justice of the peace, and taken by appeal to the Circuit Court. Plea before the justice, the general issue. In the Circuit Court, the cause was submitted to the decision of the Court' without a jury.

The plaintiff below, after giving in evidence the arbitration bond, offered as testimony an award ; the defendant objected, but his objection was overruled and the evidence received. The arbitrators, after reciting certain matters, awarded in favour of the plaintiff as follows: — “We accord with the decision and judgment as rendered by William Lemon, Esq. on the 24th. of March, 1834, 30 dollars and 73 cents as appears by the attached transcript, with the exception of an allowance as made by plaintiff for hauling six hundred and twenty staves.” The transcript attached to the award was also given in evidence, but showed nothing relative to the allowance for hauling the staves. It exhibited an unconditional judgment for 30 dollars and 73 cents. The bond, award, and transcript, constituted all the evidence in the case. The Court found for the plaintiff, and rendered judgment in his favour for- the sum named in the award and interest. The defendant moved for a new trial, but the motion was overruled ; and he appealed to this Court.

S. C. Stevens, for the appellant. C. H. Test, for the appellee.

The record shows -that the Court below, overruled the objection of the defendant to the award as evidencé, but it does not appear that he excepted to the decision. Whether the correctness of that decision is now an open question, it is unnecessary to consider, because the judgment of the Circuit Court must be reversed on another ground. Admitting the' defendant has lost the benefit of his objection to the admission of the evidence by not taking exception at the time, the testimony is not sufficient to justify the judgment of the Circuit' Court. It is a well settled rule of law that uncertainty in an award renders it void. Kyd on Awards, 194. — 1 Bac. Abr. 218. The award in question .is obnoxious to this objection. It is for the payment by the defendant to the plaintiff of money, but the sum to be paid is left'uncertain. The sum named in the award, 30 dollars and 73 cents, is liable to a deduction of unspecified amount; nor does the award make any reference by which its amount can be ascertained.

Per Curiam.

The judgment is reversed, and. the proceedings subsequent to the filing of the appeal set aside, with costs. Cause remanded, &c.