Browning v. Wheeler

24 Wend. 257

• Court: New York Supreme Court
• Decided: July 15, 1840
• Status: Published

Opinion

By the Court,

Cowen, J.

It is not necessary to decide the question ' whether the 2 R. S. 446, 2d ed. § 4, be applicable to a common proceeding by arbitration. That section requires that the arbitrators shall be sworn. I should think the provision was intended of those cases [ *259 ] only where, *by the same statute, a judgment may be summarily entered on the award; though, upon the dicta in Wells v. Lain, 15 Wendell, 99, and Bloomer v. Sherman, 5 Paige, 575, counsel seem to think this may be a vexed question. But conceding that the 4th section reaches the case of a mere common law arbitration, it is not necessary to aver in declaring on the submission and award that the arbitrators were sworn. This is not a jurisdictional fact. At least, until the contrary appear, it must be intended they were sworn, or that the parties waived the ceremony by not objecting, or by positive consent. Jurisdiction means legal power to make a judicial decision. That, in the case of arbitrators, is conferred by delegation from the parties. The act is of the same nature as the appointment of an agent; and after the power is thus conferred, even positive corruption or breach of trust will not raise a right of defence against an action at law.

* The statute also directs that judges shall be sworn. Yet, in an action on a judgment, who ever heard of a direct averment, in declaring that such was the fact ? The allegation that judgment was rendered by such or such a court, is in itself an averment that the court had jurisdiction. Ho jurisdiction, no court. The averment that arbitrators made an award, means qualified arbitrators. Whether it can be shown collaterally by plea in an action on the award that the oath was omitted, is another question. But, reasoning from analogy, it could not, even assuming that an oath is necessary. You cannot plead that the judges were not sworn in an action on judgment. It is enough that they were judges de facto. A fortiori, I should suppose, as to judges defacto of the parties own choosing, who have acted within the scope of the powers expressly conferred. It is enough, however, upon the question before us to see that setting forth those powers, and showing that they were followed, are all the preliminary allegations which are necessary in a common law action.

Judgment for plaintiff on demurrer.

Quere. See Elmendorf v. Harris, 23 Wendell, 628.