151 Ill. App. 487 | Ill. App. Ct. | 1909
Chytraus delivered the opinion of the court.
At the beginning of the appellant’s brief it is asserted of the bill herein that it “was filed to set aside an alleged award.” Counsel for appellant fails to differentiate, in regard to contestability, between an award returned in an arbitration and a judgment rendered in a court of justice. Undoubtedly it is the law governing in respect to arbitrations in pais that while an award will not be set aside because, by the light of the evidence that was introduced before the arbitrators, it may be found not to be sustained by the weight of the evidence, yet, when, by that light, the award is found to be so grossly wrong and unjust as to shock the moral sense and an inspection of the evidence upon which it is based discloses either no support or foundation for the award or such slight and insufficient foundation that the conscience is shocked by the injustice, then the award will be set aside upon a bill in equity. In Morse on Arbitration and Award, page 539, it is said, in this connection, that a common case where fraud or corruption is inferred is where the award is obviously and extremely unjust. In such an event, it is said, the court will imperatively presume the corruption or misconduct of the arbitrators and will vacate their award, upon proceedings in equity instituted for that purpose, and authorities are cited. Later cases laying down that rule with clearness and distinctness are Perry v. Insurance Co., 137 N. Car. 402, and Insurance Company v. Hegewald, 161 Ind. 631. The rule is also recognized and conceded in Van Cortlandt v. Underhill, 17 Johns. (N. Y.) 405, and in Burchell v. Marsh, 17 How. (U. S.) 344. Arbitrations in pais are purely contractual transactions.
The same rule as to contestability seems to obtain even in arbitrations held under a statute or a rule of court. Anderson v. Taylor, 41 Ga. 10. The distinction between these arbitrations and arbitrations in pais is that in the former the arbitrators selected make a return of their award into some court of law where objections or exceptions may be filed to their award, When objections or exceptions are filed there is a hearing upon these by the court who then either affirms the award and enters a judgment of the court thereupon or disaffirms the award and enters judgment nullifying the award. These proceedings are in their nature judicial, but there seems to be a limit, upon the extent to which the awards therein may be questioned by the courts of law upon such objections or exceptions. In the last cited case, at page 19, it is said: “It appears to be settled that a court of law will not, even when the submission is made a. rule of court, enter into the merits of an award, but will look only to legal objections on the face of it, or such as go to the misbehavior of the arbitrators.” We are not, however, at this time concerned with such arbitrations.
As to the fraud that will nullify the decision of a special statutory tribunal, Mr. Justice Peckham, speaking for the court in Fallbrook Irrigation District v. Bradley, 164 U. S. 112, said: “Very possibly a decision by a statutory tribunal which included tracts of land within the district that plainly could not, by any fair or proper view of the facts, be benefited by irrigation, would be the subject of a review in some forum and of a reversal by the courts, on the ground that the decision was based not alone upon no evidence in its favor, but that it was actually opposed to all the evidence and to the plain and uneontradicted facts of common knowledge, and was given in bad faith. In such case, the result would not have been the result of fair or honest, although grossly mistaken, judgment, but would be based upon bad faith and fraud, and so could not be conclusive in the nature of things.”
The obstacle appellant encounters in the case at bar, however, is that the attack made by the bill is not upon an award, as argued or assumed throughout appellant’s brief; nor is it upon a judgment of a special statutory tribunal. The attack is upon a judgment of a common law court—a regularly constituted court, of justice. The statutory enactment, under which the parties acted in submitting their controversy, is to the effect that the parties may appear in person or by attorney in court and that the judgment may be enforced as other judgments of the court. Furthermore it is settled, by the decision in the case of Farwell v. Sturges, 165 Ill. 252, 272, that such proceeding is not an arbitration, but a judicial proceeding in a court of general jurisdiction and one at law or in chancery, according to the nature of the particular case that may happen to be before the court. In rendering the judgment attacked Judge Honoré was performing his duty as a Circuit Court judge and exercising the function of the judicial department—one of the three co-ordinate branches of the government of the State of Illinois. The dispensation of justice by the courts of the State is a governmental function and, in that respect, unlike a mere award, which obtains its validity, force and efficacy only from the private agreement of the parties to the arbitration. 1 ‘ The submission is the agreement of the parties, and the arbitrators and courts can only carry it into effect, according to its terms and conditions.” Buntain v. Curtis, 27 Ill. 373, 377; 1 Phillipps on Ev., (5th Am. Ed.) 196.
The general rule in case of an attack by a bill of complaint upon a judgment of a common law court, rendered in the exercise of that court’s general common law jurisdiction, is stated in Bardonski v. Bardonski, 144 Ill. 284, 289; as follows: “It is well settled that equity will not interfere with the enforcement of a judgment at law, unless the judgment debtor could not have availed himself of his defense at law, or was prevented from so doing by the fraud of the opposite party, or by accident or mistake unmixed with fault or negligence on his own part. ’ ’
No authority has been cited to us, and in our own research we have found none, holding that a judgment rendered by a common law court in the exercise of its ordinary common law jurisdiction may be interfered with by a court of equity either because the judgment may be so erroneous, unjust and wrong as to shock the moral sense or because the evidence upon which it is based may in no wise support it or may give it merely such slight and insufficient support that the •conscience of the chancellor is shocked by the injustice of the judgment. The jurisdiction of courts of equity in respect to granting new trials at law and nullifying or restraining the enforcement of judgments at law is well settled; but, among the recognized grounds for a court of equity exercising such jurisdiction, we find none such as the reasons for equitable intervention which are set up in appellant’s bill. Courts of chancery cannot review the judgments of courts of law for errors in decisions upon either questions of fact or •points of law, no matter how plain or obvious such errors may be.
It is contended that, although there was an agreement executed to submit the cause, under the act to enable parties to avoid delay, there was not such submission by appearance in court as the act requires and, furthermore, that there was a revocation of the submission, of which the judge to whom it was submitted was in due season informed, and, hence, it is argued, the judge who heard the cause was without jurisdiction to hear or to proceed with the same. Having considered, in connection with the allegations of the bill itself, the facts as they appear in “Exhibit 5,” we do not see how appellant can now derive any benefit through these contentions, whether they be, in point of fact, well taken or not. The only reason why Judge Honoré should not have proceeded with the hearing of the cause, would have been either because, notwithstanding appellant had entered into the agreement to dispose of the cause or controversy in the Circuit Court, according to the mode of procedure provided for by the act in question, yet appellant did not make ■the preliminary formal appearance in court provided for by the statute, or because appellant, before appearing, rescinded its resolution to submit and refused to carry out its agreement in that respect. The appellant’s difficulty in this connection lies in the fact that appellant subsequently undertook to experiment with the court and to speculate upon the result of a hearing. There is here no question but that appellant, by a formal agreement, had agreed to submit the cause, under the act in question, to the judge who heard it; but the question is whether there is any equity in the contention that appellant should have been permitted to refuse to carry out its contract.
The objection of lack of a preliminary formal appearance and submission we regard as waived by the fact that there was a full and complete hearing of the cause in which appellant participated. Appellant could not, so far as appears from this record, rightfully rescind its resolution of submission and refuse to carry out its agreement. There may be some question with reference to the effect of such rescission and refusal upon the rightfulness of the judge’s proceeding with the hearing of the cause, but we think that by participating in the hearing, as appellant did, to the fullest extent, that question, if any there be, is foreclosed. When entering upon the hearing, appellant knew that one of two things would happen, either appellant or Mr. Biddle would prevail. Sitting as a court of equity in review of a chancellor’s decree, we find no equity in the idea that appellant engaged in the hearing upon the condition that, if it prevailed, Mr. Biddle would be concluded by the judgment, but should he prevail equity would require that the judgment in his favor be set aside or the collection thereof restrained.
It is alleged in the bill ‘ ‘ That no one was authorized to appear for complainant in said pretended cause and to submit, in its behalf, said alleged controversy or any other controversy between said Biddle and complainant.” When making this general allegation, appellant was fully acquainted with all that had occurred in court in connection with the hearing, yet the allegation does not specifically deny that the attorneys who contested the merits on appellant’s behalf were authorized so to contest. In appellant’s reply brief it is, so far as the present proposition is concerned, asserted that this allegation “stated merely the legal effect, as argued above, of proceeding with the hearing after the court had overruled an objection to jurisdiction, viz.: that it amounted to a mere ‘protest against the claim of Biddle,, in case the court, over complainant’s objections, took cognizance thereof.’ ” Without this admission in this court, it would possibly have appeared that Mr. Bicholson and Mr. Cole, reputable members of the bar of this court in good standing, had, without authority, appeared before Judge Honoré and conducted a lengthy defense for appellant. This admission, however, relieves the situation. Pleading the legal effect of facts is not good pleading and does not tend to bring about the narrowest possible issue of fact, which is the office of pleadings. The facts in regard to what, took place at the hearing appear from “Exhibit 5,” which, as well as the bill itself, is a pleading of appellant. In “Exhibit 5” we find that, represented by Mr. Bicholson and Mr. Cole, appellant had a full and complete hearing upon the merits and, upon the pleadings herein and upon this admission, the conclusion is inevitable that Mr. Bicholson and Mr. Cole were authorized to appear for appellant in the hearing upon the merits. We also findx in “Exhibit 5,” that Judge Honoré, in disposing of appellant’s motion to dismiss the cause on the ground of a want of jurisdiction in the court, at the commencement of the hearing, stated, “I will deny the motion at this time with leave to' renew it when, on the state of the record, it becomes competent”—to which ruling an exception was taken by appellant. We do not find the motion renewed. The legal effect of appellant proceeding with the hearing after the court had overruled the objection to the jurisdiction was not such as appellant, according to the allegation in its bill, conceived it to be. Under the circumstances of this case, appellant submitted to the jurisdiction of the particular judge and of the court by proceeding with the hearing upon the merits.
Moody v. Nelson, 60 Ill. 229, based upon Low v. Nolte, 15 Ill. 368, is not applicable upon the question that, by reason of the absence of a formal appearance and submission herein, has arisen here.
Various severe criticisms of the acts and doings of the trial judge, who rendered the judgment at law, are indulged in in the bill of complaint, and charges of prejudice and bias are also made, all of which, perhaps, would have been material, had he sat as merely an arbitrator, but cannot be considered inasmuch as he sat as a court.
Under a heading of: “As to the stipulation for a time limit for the award,” it is argued that because the judgment was not rendered within the time limited by the agreement of the parties, therefore the judgment is void. In the statement of facts appellant’s counsel informs us that “the judgment or decree was entered over two' months after the hearing was concluded.”
The statute provides that the judge shall proceed and in a summary manner hear and determine the matters so submitted “and he shall enter a judgment or decree therein, within the time fixed” in the agreement of the parties. Here the agreement of the parties is for the judge “to hear the same the controversy forthwith and to enter the judgment or decree of the court therein within ten days after such hearing is concluded.”
It appears from the allegations of the bill that both parties presented briefs and arguments to Judge Honoré and that the last of these was presented to him on November 10, 1905. On December 4, 1905, he informed the parties of his decision and thereafter the judgment order was drafted and the judgment entered on December 6, 1905.
Our Supreme Court has held that, in legal contemplation, the word “hearing,” when used in connection with the trial of a lawsuit, includes not only the listening to the examination of the witnesses but the entire •judicial examination of the issues, both of law and of fact, between the parties. Grlennon v. Britton, 155' Ill. 232. Consequently the word embraces the listening to the arguments of counsel on both sides if oral arguments are made and the reading of the arguments if written or printed arguments are presented; and, also, the consideration of these arguments in respect to both points of law and of fact. A less comprehensive meaning of the term would not give to parties such “hearing” as they are entitled to under the law. Besides, it may well be argued that the statutory provision, as to the time within which the judgment should be rendered is merely directory and not mandatory.
We regard the spreading of the submission agreement of record in connection with the entry of the judgment order, as was done in this case, sufficient, although the better practice would be to order that' it be entered of record previous to the commencement of the hearing.
Other contentions are made, which have all been carefqlly considered', but we do not find any of them of such merit as would justify a reversal of the decree of the learned chancellor. Entertaining the views expressed we could not and do not, notwithstanding the extensive arguments made upon the merits, express any opinion in that regard.
Affirmed.
