27 Kan. 650 | Kan. | 1882
This was an action of replevin, brought by defendants in error to recover possession of certain personal property which they claimed by virtue of a chattel mortgage. To the petition defendant filed an answer containing, first, a general denial, and second, a plea of an arbitration and award. Attached to the answer, and made a part of it, were copies of the agreement to submit and the. award, which,-as defendant alleged, were on file in the district court of Shawnee county. To this second ground of defense, plaintiffs interposed a demurrer, which was sustained by the district court, and defendant brings the question here on error. The following are copies of the exhibits attached to the answer:
“ EXHIBIT A.
“State of Kansas, County of Shaavnee. — Whereas, there are certain matters in dispute between Edward West, Henry West, Andrew Wilson and William Weir, and whereas it is the desire to settle said differences, now witnesseth :• That we, Edward West, Henry West, Andrew Wilson and William Weir, have agreed, and by these presents do hereby agree, to arbitrate all matters of dispute between us, and for that purpose have selected Henry York and Oliver Kinsey as arbitrators, and we hereby agree to abide by the decision of said arbitrators; and it is further agreed, that if said arbitrators cannot agree, they are to select a third person, whose decision shall be final in the premises, subject to all lawful and legal objections; and it is further agreed, that the award of arbitrators be made a rule of the district court of Shawnee county, Kansas. Said arbitration to be according to the laws of the state of Kansas, and to be held at Kingsville, in Shawnee county, Kansas, on the 15th day of January, 1881, or at such time and place as said arbitrators shall agree upon.
“Witness our hands, this 15th day of January, 1881.
Wm. Weir,
Edward H. West, and
Henry West.
Andreav Wilson, per Enos.
“State of Kansas, Shaavnee County. — We, Henry York, Oliver Kinsey and John H. Owens, do solemnly swear that we will, to the best of our ability, hear and • determine
Henry York,
Oliver Kinsey,
John H. Owens.
“Subscribed and sworn to before me, this 15th day of January, 1881.
[Seal.] P. P. Enos, Notary Public.”
“exhibit b.
“ In the matter of the arbitration submitted to us by Andrew Wilson, Edward West, Henry West and William Weir, it is found by the undersigned arbitrators: After hearing all the testimony, we do find that there is due William Weir the sum of one hundred and seventy-two dollars and sixty-four cents; and we further find that the mortgage and note given by Weir to Edward and Henry West be canceled and delivered up to said Weir, and that said' Edward and Henry West pay to William Weir the sum of one hundred and seventy-two and dollars. ' Henry York,
Oliver Kinsey,
John H. Owens,
Arbitrators.”
It appears from the agreement to submit, that all matters of dispute were submitted to the arbitrators, and from the award, that it reached to and disposed of this chattel mortgage; but counsel for defendants in error challenge the validity of these arbitration proceedings, and claim that they were illegal and void — and this upon several grounds. It may be premised that since 1876 we have a statute authorizing and regulating arbitration, (Comp. Laws 1879, ch. 5a,) and it is evident from the agreement to submit that the parties intended an arbitration under the statute. They stipulate that the award shall be made a rule of the district court, and also that the arbitration shall be according to the laws of the state. This makes clear the intent of the parties.
Now the question is whether these arbitration proceedings can be sustained as a statutory arbitration, and if not, whether they are good as a common-law arbitration. It will be noticed that these arbitration proceedings were attacked col
In this of course we refer to those arbitrations in which it is expressly stipulated that the submission shall be made a rule of court. For as appears from §1 of said chapter, two kinds of arbitrations are provided for — one in which the submission is to be made a rule of court, and the other in which no such judicial proceeding is contemplated. With these preliminary observations, we turn to the special grounds of objection presented to these proceedings.
It is insisted that the proceedings are void, because: 1. The arbitrators were sworn before a notary public instead of before a judge or justice of the peace, as provided in §6. Because, 2. It does not appear from the papers that witnesses were summoned or sworn, as provided by §§4 and 6. 3. That the submission agreement fails to specify the certain
We shall not stop to inquire whether any of these objections would be sufficient in direct proceedings in review. When challenged as the award was in this case, collaterally, none of them is available.
In reference to the first objection, Morse on Arbitration and Award, p.Ill, says: “Whether it can be shown collaterally by plea in an action on the award that the oath was omitted, is said to be another question, but one which, from the same analogy, must be answered in the negative, though the swearing may have been necessary. For as it cannot be pleaded in an action on a judgment that the judges were not sworn, so must it also, a fortiori, in the case of judges de faeto of the parties’ own choosing, and who have acted within the scope of their authorityand cites in support of that proposition the case of Browning v. Wheeler, 24 Wend. 258, which fully sustains the doctrine. If this reason be good as to the arbitrators, it is equally so as to the witnesses. While of course they should be sworn, and if it is made to appear on review in the court that they were not sworn, unless the oath was waived by the parties, it would be good reason for setting aside the award. But can the judgment of á court or the verdict of a jury be set aside, on collateral attack, on the ground that the judgment or verdict was obtained on incompetent testimony? Clearly not. By parity of reasoning, when the submission is made a rule of court, and the award having been agreed upon by the arbitrators is filed in the court for its examination and judgment, it cannot be treated as a nullity on the ground that the witnesses before the arbitrators were not sworn. Such an omission does not go the question of jurisdiction, but to the mere matter of error.
The fourth question is equally untenable because the present action is alone between the Wests and William Weir; and whether Andrew Wilson was bound by that award or was a party to it is immaterial. The case as it stands upon the record now is similar to that which would appear if an-action were brought in a court against three parties and only, two of the defendants were summoned. Prima faaie, any proceedings and judgment in the case would be conclusive as to the controversy between the plaintiff and the two defendants summoned.
The fifth objection falls within the same category as the first and second. It might be sufficient in some cases for setting aside the award, though in many instances it might be a mere technical error and one without prejudice, but clearly it does not render the proceedings absolutely void. We conclude, therefore, that none of these alleged defects is sufficient to invalidate the award when challenged as it was in the present case. We desire to repeat in conclusion, that, the remarks we have made in reference to these objections apply only to a case in which by express stipulation the submission is to be made a rule of court, and in which the arbitration is had, the award made and filed in the court in pursuance to the stipulation, and in which one of the parties thereto, instead of seeking a direct review in the court, seeks
The judgment of the district court will be reversed, and the cause remanded with instructions to overrule the demurrer.