Wallace v. Underwood

32 Mo. App. 473 | Mo. Ct. App. | 1888

Ellison, P. J.

— Matters of difference between the parties hereto were submitted to arbitrators. An award was made and filed in the circuit court of Jasper county. A copy of the award, together with a notice in writing that a motion would be made to confirm the same, was served on the plaintiff by defendants more than fifteen days as provided by statute. A motion to confirm was filed in pursuance of such notice ; the plaintiff, on the same day, filed his motion to vacate and set aside said award for several reasons therein specified. Both motions were heard by the court at the same time, though in effect the trial turned on plaintiff’s motion to vacate; evidence being heard on both sides of the issues presented. The result was a vacation of the award by the judgment of the court, to which defendants excepted and appealed to this court. No motion for new trial was made, and the question is presented whether we can take notice of the bill of exceptions or otherwise look into the case, save as it may be presented by the record proper. In all instances errors alleged to have occurred during a trial, and the exceptions taken thereto should be set forth in a bill of exceptions and by this means become a part of the record for review ; and in nearly all instances there should be a motion for a new trial made by the complaining party, pointing out the errors alleged, in order that the trial court may have the benefit of reflection and reconsideration outside of the hurry and press of a trial, and thereby have an opportunity of correcting its own errors, thus saving the delay, annoyance and expense of an appeal and rendering justice more speedily. There are cases, however, where this rule of practice is held not to apply to motions, it being said to be' sufficient, in such instances, to appeal directly without asking for a rehearing The cases of Parker v. Waugh, 34 Mo. 340, and Bruce v. Vogel, 38 Mo. 100, were motions requiring sheriffs to apply money on certain executions. These were in effect overruled in 39 Mo. Slagel v. Murdock, 65 Mo. 522, and Parker v. Railroad, 44 Mo. 420, were cases arising on motions to quash executions. In State v. Newkirk, 49 Mo. 474, the defendant, after having the case reversed and remanded by the supreme court, was on motion to the circuit court discharged from prosecution, for the reason that the supreme court had not, in terms, directed a new trial. The case of O’Connor, v. Koch, 56 Mo. 253, was where the trial court dismissed a petition for the reason that plaintiff declined to reform it as ordered. In Jones v. Manley, 58 Mo., an equitable defense was stricken out on motion; this action of the court was preserved by bill of exceptions, and it was held that it need not be mentioned in the motion for new trial. In Butler v. Lawson, 72 Mo. 227, an objection to the reception of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action, was sustained. In each of these cases it was held that a motion for new trial was not necessary for a review of the questions presented.

Are these cases controlling of the questions before us, in the light of others to which I will refer \ The statute of arbitrations contemplates not only that an award may be confirmed or vacated by the proper court, but that it may be modified or corrected, or a new hearing ordered before the arbitrators. It contemplates notice to the parties to come into court and contest the matters presented, and that a judgment may be rendered by the court after a hearing; and when said judgment or order is that the award be vacated, “the party aggrieved may take his writ of error or an appeal, as upon any other judgment of such court.” R. S. 1879, sec. 347.

Recurring to the reason why a motion for a new trial is required, I am at a loss for a suggestion of why a matter of arbitration and award should be an exception to the rule, the necessity and benefit is as apparent in such case as in any other. The statute simply gives a summary execution to an award, which otherwise, at common law, would have been the subject of an action. And the questions to be determined by the court under either process or remedy are quite alike and equally as difficult. So far as concerns this question and the reasons upon which an answer to it should be based, the statute in reference to arbitrators and referees is much the same. The proceedings of referee and arbitrator are similar, though the arbitrator is less circumscribed. While I have not been able to find where the point now under consideration has been made in the case of the report of an arbitrator, there are three late cases in which it has been ruled by the supreme court, that in appealing from a judgment confirming or modifying the report of a referee, there must be a motion for a new trial, in order to have matters of exception reviewed. State ex rel. v. Hurlstone, 92 Mo. 327; State ex rel. v. Burckhartt, 83 Mo. 430; Rotchford v. Creamer, 65 Mo. 49.

These views lead to an affirmance of the judgment, and with the concurrence of the other judges, it is so ordered.