104 Ga. 241 | Ga. | 1898
Stephens instituted an action in a justice’s court against Johnson & Brother, upon an alleged account amounting to $93.30. On an appeal of the cause to the superior court of Walker county, the defendants pleaded not indebted; and also alleged, by way of a plea in bar of the action, that a suit upon this claim had formerly been instituted in a justice’s court, and that such suit was afterwards withdrawn from the court for arbitration; that both parties agreed to the arbitration, and not only agreed to it, but swore to abide by the award of the arbitrators. They further alleged that all matters embraced in the subject-matter of the present suit were submitted to the arbitrators and settled by their award, and that such award was never disturbed, but the plaintiff nevertheless ignored the award and brought this suit. The result of the trial in the superior court was, that a verdict and judgment were rendered in favor of the defendants. The plaintiff made a motion for a new trial, on the general grounds that the verdict was contrary to the law and evidence; and on the further ground that the court erred in admitting the evidence of certain witnesses, which went to show that there had been a suit between the parties in a justice’s court about the same subject-matter, and that the same was by written agreement submitted to certain persons named therein as arbitrators, who made an award in the matter, which was turned over to the justice of the peace in whose court the case was pending. Movant contended that there was no sufficient proof of the loss or destruc
It does appear from the record that certain witnesses for the defendants were allowed to testify as to the subject-matter of the former suit; to the withdrawal of that suit; to the written submission to arbitration, and the contents of such submission and award of the arbitrators. We think, however, in view of the facts of the case, that while the evidence as offered was inadmissible as a primary proposition, yet its admission in this case is not cause for granting a new trial. It appears that the plaintiff himself, who was the first witness sworn, voluntarily testified, among other things, as follows: “It is true that this same matter involved in this suit was submitted to arbitration; the submission was in writing, and each of us swore in writing to abide the award; but all my evidence was not before the arbitrators. I selected two arbitrators and defendants two; and these, an umpire. The arbitrators, after hearing all the evidence offered, made an award in favor of J. F. Johnson & Brother [the defendants]. It was in writing. I told Kilgore, J. P., to issue a summons against defendants for this debt before the arbitration. The paper that I did not prove before the arbitrators was the contract I had made with Reynolds & Co., relative to the lumber and payments therefor. The present suit was brought in the J. P. court, after the award of the arbitrators had been made.” It was the plaintiff himself then who, without any compulsion or ruling requiring him so to do, went into the fact of the abitrament and award, and showed that the same was regular and in writing, and the contents and subject-matter of the submission and award. While he was not compelled to do so, he could, if he chose, prove these facts, and, having so chosen, the facts proved by him were established as a part of his case, and reference thereto by succeeding witnesses was admissible because the plaintiff had himself established such facts.
The question then only remains, what is the legal effect of the submission and award as testified to b3r the plaintiff? By
Judgment affirmed.
