Mitchell v. Kelly

5 Va. 330, 1 Call 379, 1798 Va. LEXIS 28

• Court: Court of Appeals of Virginia
• Decided: October 30, 1798
• Status: Published

Opinion

PENDLETON, President.

Delivered the resolution of the Court as follows:

This is an appeal from a judgment of the District Court, entered upon an award made pursuant to a submission by order of Court, in a suit depending; and at issue. The judgment was moved for at the term the award was returned; and, opposed by the defendant, for want of due notice; which being over-ruled, he filed his exception.

The counsel here, has added another objection, that the judgment was entered too soon, in the term when the award -was returned; since the act of Assembly of 1789, [c. 46, 13 Stat. Larg. 63,] relating to awards, allows the parties till the end of the next term, to make their objections.

Without deciding, whether the act extends to the present case a submission made in a suit depending? We are of opinion, that admitting it does, the privilege of time might and was waived by the defendant, in this case; he having brought forward his objections at an earlier period.

As to the notice, the affidavit is equivocal: he says, that Kelly gave him no notice after the first of September; thereby implying, that he had given him notice before, and admitting that he might afterwards have had notice from the arbitrators. Which is the rather presumable, since he admits, that he received in that month Kelly’s account from one of them; no doubt for some purpose; probably, for an opportunity to make objections to it; and, these the arbitrators waited for, until the month of March following. In which time, he may have made them; and, they may have been considered by the arbitrators: Who report, that upon due notice, they had heard the parties; had considered their exhibits and evidence; and, had made the award between them. He does not say, that he has any objection to the account or to the justice of the award; but, is quibbling in terms about the notice.

J udgment affirmed.