Steel v. Steel

1 Nev. 27 | Nev. | 1865

Opinion by

BkosNAN, J.,

fall Bench concurring.

This is an appeal from a judgment of the District Court of the Eirst Judicial District, entered upon an award in favor of the respondent.'

The transcript discloses the following facts:

On the 15th day of June, 1864, a copy, as stated, of the submission was filed in the office of the said District Court.

This document was executed by Thomas ~W. Steel, but not by John Steel; and among other matters provides that the submission be made and entered as an order of the said District Court.

On the 8th day of July, 1864, the arbitrators filed their award with the Cleric. On the 11th day of July, three days after filing the award, the respondent filed in the office of said Clerk a submission of the same date and tenor as the document filed on the 15th day of June, and then instructed the Clerk to make all the entries required by the statute “in order ” (as the record states) “ that said submission may become an order of Court.”

As appears from the record before the Court, which, as certified by the Clerk, contains a full, true and correct transcript of all the proceedings had in the case, the only entry in the Clerk’s register is the following:

“Submission made on the 14th day of June, 1864. Said arbitrators to make the award on or before ten days from the time when the testimony on behalf of both parties is closed, and the matters in difference fully submitted to them.”

This entry was made on the 16th day of July, 1864, eight days after the award was filed. On the 22d day of July, judgment was entered by order of the Court below.

The respondent’s counsel moved to dismiss the case, on the ground that no motion was made before the entry of judgment, to vacate or correct the award, as provided by law. (Vide laws of 1861, pp. 372, 483, sections 335, 336 and 337.)

If this judgment has- been rendered in conformity to the requirements of the statute, and is valid, the counsel is correct and the appeal is clearly unauthorized.

This is not denied by appellant’s cóunsel; but he contends that the judgment is bad for several reasons, and particularly because the entries required by law were not made.

The determination of this point brings us directly to a review of the requirements of the statute, and of the acts necessary to be performed under it.

It may be proper to state here that the course of proceed-mgs prescribed by tlie statute, is in derogation of the common law, and mnst be strictly followed. Whenever a statute prescribes certain specific acts to be done as pre-requisites to the acquiring of jurisdiction or the enforcement of a legal remedy, such acts must be substantially performed in the manner prescribed, in order to give validity to the proceeding. In the case at bar, the statute required the submission to be filed with the Clerk, etc. “The Clerk shall thereupon” (that is, upon the filing) “ enter on his register of actions, a note of the submission, with the names of the parties, the names of the arbitrators, the date of submission, when filed, and the time limited by the submission, if any, within which the award shall be made.” Upon the filing of the award also, a note thereof shall be made in the register. So far as we are judicially informed by this transcript, nearly all of these acts were omitted. This is a special, not the ordinary mode for recovery of a judgment; the requirements of the statute authorizing it are not idle, useless formulae; they are mandates of law not to be disregarded, and must be substantially complied with. It was not seriously claimed on the argument, by the learned counsel of the respondent, that the paper filed on the 15th of June was a good submission, owing to the want of execution by one of the parties. And it appears from the statement in the case, that no reliance was placed ugon it, because when the submission, executed by both parties, was filed, on the 11th day of Julys after the award had been filed, the Clerk was instructed to make all the requisite entries “ in order (as stated) that said submission may become an order of Court;” thus virtually conceding the invalidity of the. submission filed June 15, 1864. How else could it be ? Had the case rested upon that first defective submission, and the record showed a judgment against the appellant,-having only for a predicate a submission not executed by him, certainly no person could reasonably contend that such a judgment would be valid. But the respondent’s counsel insists that the submission may be filed at any time after filing the award, though no entry or note be previously made by the Clerk in his register of actions; and, therefore, that the filing the submission on the 11th day of July cured all antecedent errors and defects. Tliis, we think, is incorrect. But even were it conceded, it would not avail the respondent’s case, for the reason that the necessary note of submission had not been then entered; and for the further reason that when entered, namely, on the 16th day of July, eight days after filing the award, and five days after filing the last submission, it does not comply with the demands of the statute. In short, the filing of the submission and the entry of the prescribed note in this class of cases are the equivalents, and subserve the use of the complaint and answer in an ordinary action, and like both must be filed before a hearing, trial or judgment.

Our attention has been directed to several adjudicated cases to show that awards are usually liberally construed. Of this rule there is no question; it is well established as regards awards at common law.

The current decisions seem to be that awards of that kind cannot be impeached at law, if made in good faith, whether the arbitrators decide wrong either as to the law or the facts of the case.

Scarcely any matter, short of a want of power or jurisdiction appearing upon the face of such award, is subject to question or inquiry. And were this an award at common law, every reasonable intendment should be made to uphold it.

But the award before the Court is statutory, and such a liberal interpretation cannot be invoked in its aid. Its validity must be determined under the provisions of the statute authorizing it. And although it maybe a good award uhder'the rules of the common law, of which we express no opinion, yet it must stand or fall as it is, or is not, supported by the statute.

Some other points have been raised and discussed; but as we have determined that the judgment should be reversed on the ground of a departure in the proceedings from the provisions of the statute, we have not deemed it necessary to examine them.

The judgment is reversed.