5 Wash. 206 | Wash. | 1892
Lead Opinion
This was a proceeding under chapter 13, title vir, of the Code of Procedure, by which appellant and respondent agreed to an arbitration of the differences between them. The arbitrators heard the controversy, and a majority of them made out an award which was duly filed in court, as required by § 426. Exceptions thereto were duly filed by the respondent and upon a hearing thereof the award was set aside by the court. From such order this appeal has been prosecuted. Respondent moves to dismiss, on the ground that the order appealed from is not such a final order as will sustain the appeal. Upon the argument upon such motion counsel for the respective parties are practically agreed that its determination must depend upon the question as to whether or not the power of the trial court over the proceeding was absolutely ended and determined by the making of the order setting aside the report of the arbitrators. If such proceedings were so ended by such order, it must be held to be a final one within the meaning of our statute as to appeals. If, on the other hand, the making of such order did not fully determine the cause in the lower court, it was not of that final nature which would sustain an appeal.
The briefs of the respective counsel upon this question have been prepared with elaboration, and the question discussed with great ability, both from the standpoint of rea_ son and authority. The decision must necessarily largely depend upon the terms of our statute. The authorities cited by the respective counsel, and the care which is shown to have been exercised by them in making such citations, satisfy us that the exact question presented for our decision has not been decided by any court under a statute just like ours. Therefore, we can get but little aid from the citation of authorities.
From this provision it will be seen that the duty of the court to proceed and determine is clear, when the arbitration has failed because of the neglect or refusal of the arbitrators to comply with the direction of the court. The language of the statute is, that upon such a contingency the court shall be possessed of the case, and proceed to its determination. From an examination of all the provisions of the section above quoted it will appear that the contingency which will authorize the court thus to proceed is that the arbitration has failed. But if either of the other grounds of exception are sustained, the arbitration has as fully failed without any such referring back to the arbitrators as it has under the contingency mentioned in said section after the matter has been so referred back, and the arbitrators have refused to comply with the direction of the
The appeal must be dismissed.
Dissenting Opinion
[dissenting).-—It seems to me that the court has erred in its treatment of this case by an unnecessary attempt at construction. To my mind § 426 is complete in itself. If no exceptions are filed, judgment is to be entered as upon the verdict of a jury, and execution issues; but if the last part of the section be taken to mean that before judgment the same proceeding may be had upon the award as may be taken to set aside a verdict (which is not admitted) confusion ensues. The proceeding to be taken to get rid of a verdict is to move for a new trial in the same court before another jury. But the terms of §§ 128 and 129 preclude this. The exceptions are laid before another tribunal, which sits as a court of review, and upon discovering error it may (which I interpret must) refer the case back to the arbitrators, directing the amendment of the award forthwith. If there is failure to secure the correction in this manner, the court becomes possessed of the case and determines it, if it can, from what is reported to it; otherwise the whole proceeding fails. But accoi’ding to the decision of the majority, this case must now go back to the court below for a trial upon new evidence, before a jury probably, which is not at all what the parties stipulated for.
I hold the conclusion of the court below to have amounted to a final determination of the arbitration, because the stipulation was to submit the case to two men who should choose a third, and one of the three was found to have been disqualified to sit as an arbitrator at all. The court also found that there were errors both of law and fact in the award; and had there been competent arbitrators it would have been its duty to refer the award back to them for correction. But the disqualification of one arbitrator left it impossible to refer, and the court became possessed of the case and empowered to proceed to its determination. It did then determine it by setting aside the entire award and