58 Mo. 327 | Mo. | 1874
delivered the opinion of the court.
The judgment in this case must be reversed on two grounds:-
First, the petition which seeks to recover $172.80, from the defendant, on account of a mistake made to that extent by the arbitrators, who were selected by the parties to settle a question of difference between them respecting the building of a hotel for the plaintiff by the defendant, and the amount of money yet remaining unpaid to him on the contract, shows Upon its face, that the plaintiff 'was made aware of the mistake by the arbitrators, soon after they had signed and before they had delivered their award, and that, notwithstanding this information, the plaintiff permitted the award, without objection, to be confirmed under the provisions of the statute by the judgment of the Circuit Court, and subsequently satisfied the execution issued on such judgment. At the trial, the introduction of any evidence was objected to on the ground that the petition did not state facts sufficient to constitute a cause of action, and in thus objecting, the defendant was undoubtedly right. After the numerous adjudications on this point, it ought to be regarded as settled, that where a party to an action, being fully apprised of his rights, suffers judgment to go against him, when he might, by the exercise of reasonable diligence in making his defense, prevent a recovery of the amount claimed, either in whole or in part, lie should not be allowed in a subsequent proceeding to re-agitate questions which either were, or else would have been, adjudicated at the former trial, but for his inexcusable neglect.
And in this regard, courts of law, as well as courts of equity, pursue the same wise policy, and concur in the application of the same enlightened maxims. (Freem. Judg’ts, § 249 and cases cited; 2 Sto. Eq. Jur., §§ 895, 895a, 896, and cases cited; Greatheart vs. Brownley, 7 T. R., 455; Aurora, City vs. West, 7 Wall., 82, and cases cited; Duncan vs. Gibson, 45 Mo., 352 and cases cited; Valle vs. N. Mo. R. R., 37 Mo., 445; Bateman vs. Willoe, 1 Sch. & Less., 204; Smith vs.
That the plaintiff had ample time and opportunity to .move to modify the award in the particular referred to, and thus obviate the mistake into which the arbitrators had fallen, is clearly shown by the petition; and section 10, et seq., of the statute, respecting arbitrations and references, makes full provision for the correction of an error of this sort, giving a party desirous of doing so, until the “next term after the publication of the award ” in which to move for redress of the grievance complained of.
And section 17 of that act imparts to a judgment of confirmation, rendered in accordance with the provisions of the law referred to, equal force and validity as that possessed by judgments in ordinary actions, and makes them fully as conclusive as though that judgment had been recovered in an action on the award. The effect then, of the judgment mentioned in the petition,was to merge the award in such judgment, so that, whether the present proceeding is to be regarded as one in tlie nature of a bill in equity to set aside the award, or as an action for money had and received, the petition utterly fails to state any ground for relief in equity, or recovery at law ; showing as it does, a judgment of the same court, between the same parties, in respect to the same subject matter, unreversed, and that the present suit is brought to recover the amount of the excess of that judgment, and that such excess consists of, and was caused by the before mentioned mistake, which, but for plaintiff’s own laches, would never have formed a part of the judgment. Under such circumstances, it would be outside of all precedent, for either a court of law or a court of equity to afford any redress. (See above cited authorities.)
Judgment reversed;
