R. King & Co. v. Grey

31 Tex. 22 | Tex. | 1868

Morrill, C. J.

—We are called upon in the first place to decide whether there is such a final judgment as gives this court jurisdiction.

The judgment is as follows: “R. King & Co. v. E. N. Grey. This case coming on to be heard on petition of defendants to set aside the award, and the cause being heard, and the evidence being presented on said petition as well for the plaintiffs as defendant, and argument of counsel, and it appearing to the satisfaction of the court that the arbitrators in this cause were guilty of gross mistakes, both of law and fact, apparent on the face of their award, it is therefore ordered by the court that said award be set aside, and that the case be proceeded with de novo before this court; and it is further ordered that an auditor be appointed to report upon the matters in controversy between said parties at the next term of this court, and this cause be continued. From the fact that the parties to the arbitration did not reserve the right of appeal in the agreement for arbitration there could be no appeal from the award, and the proceedings of the arbitrators were final in their nature, and the duty of the judge was to enter up a judgment on the same, or, if it should be apparent that such causes exist as would not authorize a court to enter such a judgment, then to declare.the proceedings null and of no effect, either in whole or in part, and re-commit for further award.

- The district judge refused to enter a judgment on the award, but adjudged that it be set aside; and this was a final judgment of the case, and from this final judgment an appeal lies to this court.

We now come to the main question in the case: Did the court err in refusing to enter a judgment on the award? As the judge did not specify what the “gross mistakes, both of law and fact, apparent on the face of the award,” were, we will examine the causes, as specified in the brief of counsel. And, first, that the umpire assumed at once and acted as an arbitrator, which is alleged to be contrary to the statute. (Paschal’s Dig., Art. 65.) This article provides, “ That if the arbitrators chosen as aforesaid cannot agree, the arbitrators shall select an umpire, and in case they disagree in the choice of an umpire, the justice or clerk may appoint an umpire, who shall be competent to serve as an arbitrator, and who shall in like manner be sworn.”

This article expressly declares that this third person, called an umpire, whether selected by the other arbitrators or the clerk, after being sworn, shall be competent to serve as an arbitrator. Of course his powers as arbitrator are neither greater nor less than those of the other arbitrators; and from the fact that the original arbitrators could not agree, it is evident that it was contemplated by the statute that the award would not be unanimous when a third party should be so selected, and hence the proceedings by the arbitrators, after the appointment of the umpire, would be precisely as if the three had been originally chosen, and a majority was sufficient to form an award.

. The award is further objected to because it was ex parte. The statement of facts shows that the arbitrators met on the 5th day of December, 1866, and continued in business until the 9th day of February, 1867, when one of the arbitrators withdrew from attendance, and refused to attend any further. How far they had progressed in the business is left only to inference; but it would not be a violent presumption that during this time all the material facts had been obtained, and that the withdrawal was the consequence of disagreement with the other arbitrators. In this view of the case, a withdrawal would be neither more nor less than a simple dissent from the award made by the majority. After the parties had proceeded so far as they had in this case, it would render futile and useless the act concerning arbitration if one of the parties could annul the award that might be made by wilfully refusing to proceed further. A large portion of the judgments rendered in the district court are by default and ex parte, yet it would be a strange position to say, that because the judgment was ex parte, therefore it was illegal. It is not that the proceedings were ex parte, for if notice of the time and place of meeting was given to the third arbitrator and he refused to attend, either through obstinacy or press of business, or at the desire of one of the parties, the other two could proceed in his absence and make their award, which would be binding upon the parties. (Carpenter v. Wood, 1 Met., 409; Crofoot v. Allen, 2 Wend., 494; Caldwell on Arbitration, 204.)

Counsel for appellees have referred to a number of cases showing the necessity of all the arbitrators being present in the transaction of their duties, but as they all have reference to a different state of facts from those in the ease at bar, we do not see their applicability. The record shows that the arbitrators met on the 5th December, 1866, and continued in session from day to day until the 81st December, 1866, and then adjourned to the 5th February, 1867, and continued in session till the 9th February, at which time the arbitrator appointed by the defendant withdrew, and the other arbitrators made out the award on the 13th of February, having been in session more than two months. We have examined the matter in controversy, the testimony introduced, and the award, and see no reason why the court should not enter up judgment on the award. Because, therefore, the court erred in setting aside the same, it is ordered that the judgment be reversed; and, proceeding to render such judgment as the district court should have rendered, it is ordered that judgment be here entered on the award, affirming the same.

Ordered accordingly.