Hunt v. Zuntz

28 La. Ann. 500

• Court: Supreme Court of Louisiana
• Decided: May 15, 1876
• Docket: No. 5755
• Status: Published

Opinions

On Motion to Dismiss.

"Wyly, J".

Plaintiff and defendant being unable to agree as to the amount due the former by the latter for professional services in a certain litigation, submitted the matter to arbitration, indicating in the contract the names of the arbitrators and the name of an umpire in case his services should be required. They also bound themselves to. abide by the judgment of the arbitrators, and to pay the amount thereof within five days after the decision; and thoy further bound themselves “ to each other in the sum of ten thousand dollars liquidated damages, to be paid in case of non-compliance within the time named.” The arbitrators failing to agree, the matter was referred to tho umpire, who fixe.d the amount to be paid plaintiff by defendant at fifty-seven hundred dollars. Defendant having failed, after due notice for more than five days, to comply with the award, the plaintiff brought this suit to recover the amount of the award and also the ten thousand dollars liquidated damages stipulated to be paid in case of failure for more than five days after a decision to comply with the arbitration.

The court gave judgment as prayed for, and defendant has appealed.

• Plaintiff now moves to dismiss this appeal on the ground that defendant has been condemned to pay the amount awarded by arbitrators and ■ a penalty for failing to comply therewith and no appeal lies in a case of this kind. In support of the motion article 3130 of the Revised Code is •cir.ed, which reads as follows: “He who is not satisfied with the award may appeal from it, though the parties have renounced such appeal by the submission; but the appellant, before being heard on his appeal, ought to pay the penalty stipulated in the submission, if any has been stipulated.” * * * The appeal here referred to is. an appeal from the judgment or decision of arbitrators to the court. It has no application to the appellate jurisdiction of this court. The article cited in no manner modifies the jurisdiction of this court as fixed in article seventy-four of ■the constitution and also in the Code of Practice.

The case at bar is a suit brought by plaintiff on a contract and the award of arbitrators thereon. The court below lias decided that the arbitration was properly made and that the defendant should pay the amount awarded, and also the further sum of ten thousand dollars liquidated damages, for failing to comply with the arbitration within the time stipulated. Whether an amount has been properly awarded, and whether defendant is guilty of non-compliance with the award, and incurred the penalty stipulated, are questions that have been passed on by the court below, and there is no law forbidding the review by this court of the judgment of the court below. Defendant, who complains that he is aggrieved, has the constitutional right of appeal, however indifferent his defense may be on the merits.

The motion is denied.