Darge v. Horicon Iron Manufacturing Co.

22 Wis. 417

• Court: Wisconsin Supreme Court
• Decided: February 15, 1868
• Status: Published

Opinions

The following opinion was filed at the June term, 1866:

.Cole, . J.

The motion to set aside the award in this case was met by a counter motion on the part of the plaintiff for judgment on the award for the amount assessed by the arbitrators, he consenting that judgment should be rendered against him for the costs. Our first impressions were that this motion for judgment was properly denied, and that, as the company had appealed from- the award, it was entitled to a new trial in the circuit court upon the question of damages. A more careful examination of the charter, however, has led us to the conclusion that it does not secure to the company, even where it appeals, this right. In the section regulating appeals from the award, is found this clause: “ And if the amount so found for such plaintiff shall exceed the amount of the award, judgment shall be rendered for the plaintiff with costs; and if the amount so found shall not exceed the amount of the award, judgment shall be rendered against such plaintiff for costs, and the award shall remain in force, and,judgment be rendered thereon.” (See. 7, Charter.) We at first supposed there was some mistake in the charter as printed in the bound volume, but upon looking at the enrolled bill in the office of the secretary of state, we find that the law is correctly published. It there reads, that “ the award shall remain in force, and judgment be rendered thereon-,” even when the amount found due on a trial in the circuit court shall not exceed or be less than the amount of the award. In' other words, under the charter as it now stands, judgment must pass 'against tbe company for tbe amount of tbe award under any contingency. This is certainly a strange anomaly in tbe charter, and one we should not have expected to find in a law doubtless drawn up by those interested in it. Ve should not have supposed tbat'tbose persons interested in tbe charter would have so drawn it as to give tbe .company tbe right to appeal.from tbe award, while at tbe same time all real benefit of such appeal was taken away by providing that “ tbe award shall remain in force,” whatever might be the reduction in the damages as found by the jury. It is more than probable that some words were omitted by the draftsman of the law, and that he might have intended to draw this clause so as to read that the award shall remain in force for the amount found due on the trial in the circuit court. But however this may be, it is quite obvious that it is idle to speculate as to what may. have been the idea of the person who drew up the charter. Nor is it the function of the court to interpolate words into the law so as to amend it and make it read as we may fancy it was intended to read. If there is a defect in the law, it is the province of the legislature to correct it. "We must give effect to the provision as we find it upon the statute book. "We cannot perceive that the provision which declared that “the award shall remain in force ” is open to any constitutional objection, for it was undoubtedly competent for the company to waive the benefit of an appeal, and make the award of the arbitrators conclusive so far as it was concerned. The company has accepted the charter and acted under it. And it is the plain duty of the court to give effect to its provisions. And as the award of the arbitrators was conclusive upon the question of damages, so far as the company was concerned, the plaintiff was entitled to judgment thereon.

JBy the Court. — The order of the circuit court denying the motion for judgment on the award is reversed, and the cause remanded for further proceedings according to law.