Cobb v. Morris

40 Ga. 671

• Court: Supreme Court of Georgia
• Decided: June 15, 1870
• Status: Published

Opinion

McCay, J.

This was a motion for a new trial on the ground that the jury found contrary to the testimony, and because the Judge erred in holding Cobb an incompetent witness in his own behalf.

The sole issue before the jury was whether the arbitrators had made certain specified mistahes, in making up their award. One of the mistahes alledged was that the arbitrators had failed to pass upon one of the matters submitted, as appears by the award upon its face; this was done deliberately, there was no mistake about it. They expressly say they do not pass upon it. The parties to the submission are left as to this item as they were. Were the question made to the Court as a ground of objection to the award, we are not prepared to say it would not be a good objection. But the error complained of is, that the jury found contrary to the evidence, because they did not find the issue of mistake, or no mistake in favor of the plaintiff in error. There was no evidence on this point before the j ury.

This case seems to have been brought here on a mistaken conception of the character of the proceeding provided for under the 4184th, and 4185th section of the Code. It is contended that the trial before the jury is a new appeal from the judgment of the arbitrators, and that the whole case is to be gone into de novo, as in the case of an appeal from a petit to a special jury. We do not so understand the law. Taking the two sections together, it is clear, that to prevent the award becoming the judgment of the Court, the party objecting must set up that the award was the result of “ accident, mistake, or fraud, or some one or all of the arbitrators or parties.” ,

How is this to be done ? We held in the case of Schaffer & Co., vs. Baker & Carswell, 38 Geo., 135, and in the case of Brown & Sharp, vs. Boyless, at the last term of this Court, that there must be distinct specifications, setting forth the fraud, accident or mistake. Issuable facts must,be stated, not surmises and inferences. Issue is to be joined on these specifications; these issues are to be submitted to a jury, and they are to find for or against the award on these specifications.

In this case, there was no attempt to prove any specific mistake. The effort seems to have been to detail to the jury the whole evidence, or rather to go into the investigation de novo, with the idea that the case was so strong against the award, as to justify the inference of mistake in the arbitrators. We do not think mistake can be shown in this way. At least, it leaves the question oí mistake wholly to inference. We do not say that when an award is shockingly contrary to the evidence, it may not be attacked. We incline to think that under a subsequent clauses to the one which we have quoted, (to wit: that which use the words “otherwise illegal,”) this may be done. If there was a specification that the award was contrary to the evidence, and so much so as to shock the moral sense, and the whole evidence were set forth, it might make a case of illegality.

But there was here, no such undertaking, the specification set forth certain definite mistakes committed by the arbitrators, and did not pretend to set forth all the evidence, nor was this attempted by the proof.

How could the jury find that the award was contrary to the evidence, so as to shock the moral sense, unless it affirmatively appeared that the whole of the evidence was before them?

As to the point made on the competency of Mr. Cobb as a witness: in the first place, it does not appear in the bill of exceptions, that any such ruling was made by the Judge. Nothing is said about it in the history of the trial, or in the brief of the testimony embodied in the bill of exceptions. In the rule nisi for anew trial it is stated) but the Judge overruled that generally, and it may be that he refused the rule on this point, because no such error was committed. We do not know; the Judge has not in any part of the bill of exceptions certified that he made any such ruling; all he says, is that a motion was made to set aside the verdict on that ground among others, and he overruled the motion. He may have done that because the facts were not as set forth in the rule nisi.

But why is not Cobb here strictly within the exception to the act of 1866 ? The suit was brought by Morris — the dispute was as to matters that had occurred between them. Morris was- dead. In such a case the Statute says, the other party is not a competent witness in his own behalf. The Statute says, issues of this sort are to be tried “ under the same rules and regulations as are prescribed for the trial of appeals.” That it is a matter growing out of an arbitration, cannot, as it seems to us, change the rule. An arbitration is not done in a corner. "The issue here was only as to what occurred before them; Cobb could have no special knowledge on the subject. The arbitrators, anybody, who knew what transpired, might prove what Cobb swore; anybody who heard him, because the issue now on trial was not what was the truth, but what was sworn to before the arbitrators.

It was admitted in the argument that Cobb was not introduced to prove what occurred before the arbitrators, but to show by his books and his statements what was the truth in the controversy. As we have said, this was not the issue, and it was proper to exclude him for this reason.

We think the jury did rightly in finding for the award, if for no other reason, for the patent one that there was no proof of mistake; but also because they had no right to infer anything upon the subject, until it was made affirmatively to appear that all the evidence, heard by the arbitrators, had been adduced to the jury.

Judgment affirmed.