5 W. Va. 427 | W. Va. | 1872
The objection urged against the decree in this case is, that the court transcended its powers and authority in proceeding to enforce the provisions of the award by •decreeing a sale of the real estate mentioned in it, &c., after entering it up as the decree of the court, as provided for by •our statute. And it was maintained that the jurisdiction of the court over the cases embraced in the argument and submission, terminated upon the filing of the same in court on the 8th day of March, 1870.
The first section of chapter 108 of the Code, p. 569, provides for the submission to arbitration of matters of controversy between parties — whether a suit be pending therefor or not — and that the parties thereto may “agree that such submission may be entered of record in any courtand that “ upon proof of such agreement out of court, or by consent of the parties given in court, in person or by counsel, it shall be entered in the proceedings of such court, and thereupon a rule shall be made, that the parties shall submit to the award which shall be made in pursuance of such agreement.”
The second provides that such submission shall not be revocable by any party thereto, without leave of such court ; and that “ such court may, from time to time, enlarge the term in which an award is required to be made.”
The third section provides that, upon the return of the award made in pursuance of such an agreement, (whether any previous record of the submission, or a rule thereupon, has been made or not,) “ it shall be entered up as the judgment or decree of the court, unless good cause be shown against it, at the first term after the parties have been summoned to show cause against it.” In this case the controversy for which suits were then pending in the circuit court of Brooke county, as well as other matters not embraced in the suits, were included in the agreement of su brass ion, which submission, it was agreed by the parties, should be entered of record in said court. So that, upon such submis-sionbeing filed in court, the case was brought precisely within the provisions of the statute just cited.
The position, therefore, of the appellant’s counsel, in reference to the power and jurisdiction of the court upon the filing of such submission, would, in the main, be correct, if nothing
From this it would seem that the parties contemplated that the cases should remain in court at least until the award should be filed and be acted on by the court, in pursuance of the provisions of the statute heretofore cited. And it further appears that, sometime after the award made in pursuance of such agreement and submission had been made up> and filed in the court, an agreement of counsel was entered on the record whereby they agreed that they would furnish their arguments on the award within ninety days from that date, and that the judge of the court might at any time after the expiration of the ninety days have entered on the records of the court, such decree as to him might seem proper. But it was further provided that this order or decree should not be considered a consent order or decree, or one from which either party could not appeal.
It is obvious that the orders and proceedings, between the filing of the submission and the award, were had and made only for the purpose of facilitating the proceedings before the arbitrators and the making up of the contemplated award, and were not intended by the parties to confer any additional jurisdiction or authority on the court with reference to its action on the award when it should be made. And it is equally clear, I think, that the effect of the later order or agreement, made after the filing of the award was not to enlarge the powers of the court in this respect; but the sole object seems to have been to allow to the counsel of the parties further time, or rather to limit the time within which they might submit their arguments, and also to authorize the judge of the court to act upon the award in vacation the same as the court might otherwise have done at its regular sessions.
The question immediately before us therefore is this: What
It would seem to be well settled that the only power which the courts can legally exercise in such cases is, either to enter the award as the judgment or decree of the court, or to reject •or to refuse to enter such judgment or decree; or perhaps to recommit. Post vs. Sweet, 8 Serg. & Rawle, 391; Commonwealth vs. The Perjeps Cut Proprietors, 7 Mass. 414. And this indeed, in legal contemplation, is the extent of the agreement of .submission of the parties in this instance, and all that was within their contemplation when it was entered into.
The award and judgment thereon may be enforced, by the party agrieved, by an action at law, on the same, or in some cases, by bill in equity, and perhaps when the award is for the payment of money, an execution might issue for the same.
From the foregoing view it follows that the decree complained of, in so far as it goes beyond entering the award as the decree of the court and provides for the entering or carrying the award and decree upon it into effect, is erroneous, and for this reason it must be reversed with costs here, and a decree rendered making the award the decree of the circuit court only.
Decree Reversed.
