Hart v. Stewart

13 La. Ann. 37

• Court: Supreme Court of Louisiana
• Decided: January 15, 1858
• Status: Published

Opinions

Oole, J.

The only question in this case is whether, when it is agreed to leave the decision of the case to amicable compounders, and their award is to be final, whether a party can ask to have the award homologated when the counsel of the other party is present in court, and when no allegation of fraud or other malpractice are set up, without following the provisions of Art. 456 of the Code of Practice, and calling upon the adverse party to show cause within ten days after the notice of such motion shall have been served on him, why such report or award should not be homologated.

We think that the notice of ten days in the case at bar was not necessary, because Articles 459 and 460 of the Code of Practice declare that the court cannot revise the award of amicable compounders.

Art. 456 of the Code of Practice does not refer to the award of amicable compounders : for there would be no use to give the notice when the court has not the power to rectify the errors in the award.

The reason of this is found partly in Art. 3077 of the Civil Code, “Amicable compounders are authorized to abate something of the strictness of the law in favor of the natural equity.”

The court cannot correct what may appear to it errors, for they may have been caused by yielding to the dictates of equity.

If appellant had suggested fraud or malpractice at the time the motion was made to homologate, it would have been proper for the court to have granted delay, hut no such suggestions wore made.

Art. 456 of the Code of Practice evidently refers to ordinary errors which may exist in the award, and requires a notice of ten days to the opposite party, to give him an opportunity of alleging them ; and as courts have not the right of correcting them in the awards of amicable compounders, this notice is not then necessary when made by this class of arbitrators.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.