State v. Rawson

25 W. Va. 23, 1884 W. Va. LEXIS 115

• Court: West Virginia Supreme Court
• Decided: November 1, 1884
• Status: Published

Opinion

Green, Judge:

On the second Tuesday in October, 1880, an amendment to the constitution of this State was adopted by a vote of the people. Section 25, article VIII in this amendment provides, that “all actions, suits and proceedings not embraced in the next preceding sections (which, include the proceedings in this case) pending in a county court, when this article takes effect, together with the records and papers pertaining thereto shall be transmitted to and filed with the clerk of the circuit court of the county, to vffiich office all process outstanding at the time this article goes into operation shall be returned; and the clerk shall have the same power and shall perform the same duties in relation to the said records, papers and proceedings, as were vested in and required of the clerk of the county court on the day before this article took effect. All such actions, suits and proceedings so pending as aforesaid shall be docketed, proceeded in, tried, heard and determined in all respects by the circuit court, as if said suits and proceedings had originated in said court.” (Acts of 1883, p. 195.)

This suit had been pending in the county court of Pleas-ants from June 16, 1879; and all matters of difference between the parties had been submitted to the final determination of arbitration. On September 10, 1880, the arbitrators presented their award in the case; and the court ordered at once the parties to the suit to be summoned to appear on the first day of the next trial-term of said county court to show cause, if any they could, why this award should not be entered up as the judgment of that court; and the case was continued. Before the next trial-term of said county court this amendment of our constitution was adopted and this 25th section went into operation. After it went into operation, on Febuary .9, 1881, the clerk of the circuit court of Pleasants county issued the summons required by this last order of the county court of Pleasants county making it returnable to the first day of the next ferm of the circuit court of Pleasants county. This summons was duly served on all the parties; and they appeared, neither of them making any objection to the jurisdiction of the court, to hear and determine the’ matters in controversy. i

The legislature of West Virginia on February 11, 1881, passed an act concerning the county courts (chapter 5 of Acts 1881), the 10th section of which was in almost the identical language of this 25th section of article VIII of the amended constitution. The plaintiff in error by her counsel insists, tbat till after the passage of this act the clerk of the circuit court of Pleasants county had no authority to issue the summons, which he issued on February 9, 1881. It seems to me clear, that he had precisely the same authority to issue this summons on February 9, 1881, that he had to issue it after February 11, 1881. This 10th section of the Acts of of February 11, 1881, being in almost the identical language as the 25th section of article VIII of the amendment of the constitution could confer on the clerk of the circuit court no other or different powers in this respect than had already been conferred upon him by this amendment of the constitution. But even if it were otherwise, the fact that the parties to this suit appeared in pursuance of this summons and made no sort of objection to the hearing and determining of the cause by the circuit court of Pleasants, which actually did hear the case on its merits after the introduction of new evidence touching the merits of the matters involved in this summons, is, it seems to me, a waiver of all objections to the jurisdiction of the court, and no such objections can now be urged in this Court. This too is a sufficient answer to the objection, that no formal order was made docketing this case in the circuit court of Pleasants, even if such a formal order would otherwise have been deemed necessary, which I can not think it would.

These preliminary questions being disposed of, let us now consider, whether the circuit court erred on the merits of the case. And first, did it err in overruling the exceptions of the defendant below to the award ? It was decided by this Court that “an attorney at law, as such, has no authority before or after the institution of a suit to make an agreement in pais to submit his client’s cause to arbitrators, though he may, if his client’s are adults, consent in open court to submit their cause to arbitration; and if they be adults, they will be thereby bound.” (In Grimes v. Curry, 13 W. Va, 30, syllabus 2). Was the alteration made in this case on August 31,1880, by the memorandum signed by the counsel of the parties a change in the whole tenor of the submission made solely by the attorneys of the parties 'as such; and did they in so doing exceed their authority, as they would have done, had they on the 31st of Ausust, 1880, agreed to a submission of the matters in controversy without the express or necessarily implied assent of their respective clients resulting from their conduct, had no previous submission been made in open court on May 12, 1880?

There arc two Virginia decisions which throw light on this question. The oldest, Shermer v. Beale, 1 Wash. 11, was a chancery suit, in which an order was made by counsel referring all matters in difference between the parties to the final determination of two arbitrators, and in ease of their disagreement to such umpire as they should choose. Afterward the parties signed a written agreement authorizing the arbitrators to appoint a third person to assist them in forming and making up the award. An award was made up and signed by the three. The Court of Appeals decided that it was proper for the court, unless cause could be shown against it, to enter up a decree in pursuance of this award. In Manloor v. Thrift, 5 Munf. 493, which was a common law suit, by an order of the court the parties referred the matter in controversy to John Pegram and Thomas Thweatt, whose award was to be made the judgment of the court. The pai’ties afterward signed an agreement substituting as an arbitrator Edward Pegram in lieu of Thomas Thweatt, who refused to serve, agreeing that their award should be entered as the judgment of the court. Their award, which set out that they had heard the parties, was returned to the court. The circuit court refused to enter up a judgment pursuant to this award. The court oí appeals said that this was clearly an error on the principles settled in Shermer v. Beale, 1 Wash. 11.

In Browning v. McManus, 1 Whar. Pa., an arbitrator was substituted in place of one who refused to serve. In -the absence of all contradiction by the record the appellate court presumed that the defendant was present in person or by counsel and consented to the substitution. The record simply stated that one of the referees “being unable to attend on account of indisposition, another” (naming him) “was appointed.”

The case of Lattimore v. Martin, Addison’s Reports, (cases in county courts of fifth circuit and in the high court of error and appeals of Pa., in year 1791) is very similar to the one before us. The case was referred by a rule of court to five persons, on whose award or the award of a majority of them judgment was to be entered. The report returned to the court showed that four of the referees and both parties met, and the parties agreed to substitute another person in lieu of an absent referee named in the rule. This agreement was signed by the parties and produced in court. The award was signed by the four referees, who had been named in the rule, and by the substitute referee. The court was of opinion, that this award was good, and that judgment might be rendered upon it. The president said: “There is a majority without the absent reteree; that is enough. The award would be good if the new name was not there. Shall its being there by the consent of the 'parties make it bad ? ”

So in Bemus v. Clark, 29 Pa., the court speaking of the substitution of an arbitrator at the time of the trial of the case before the arbitrators say: “"We do not scan the report of arbitrators in the same way we do the record of the proceedings of the court; for the law does not require them to report anything but their decision; and they are a mere transient tribunal, not expected to be skilled in the strictness of forms. We presume everything to have been regularly done by them, when it does not appear to be irregular; aird even if it appear irregular, we presume the consent of parties if they were present.'

It is true that it was hold in Woodbury v. Proctor, 9 Gray 18, that “TJpon a reference by rule of court the award must be made by the arbitrators named in the rule; and even if the parties by writing endorsed on the rule substitute an arbitrator in the place of one of those named, and waive all exceptions, no judgment can be rendered on the award.” See also Layell v. Houghton, 32 Vt. 579. There is however an apparent difference between the Virginia case and the Pennsylvania case and the case now before us in this: that in the Virginia and the first Pennsylvania case the parties themselves signed the written agreement, whereby another arbitrator was added to those named in the rule, while in the ease before us this addition was made by a written agreement signed only by the”counsel of the parties. But this difference is more apparent than real. Por the answer, which was returned to the court, was signed by the original arbitrators named in the rule, and on its face stated, that “the parties to said suit afterwards, to-wit, on the 31st day of August, 1881, met with their attorneys and changed said submission by actual agreement by adding the name of V. A. Dunbar as a third arbitrator.” So that though the memorandum of this agreement was signed only by the counsel of the parties, yet the agreement itself was made by the parties, though they did not sign the memorandum in writing of this their oral agreement. Now the original submission in the case before us, which was made by a rule, was a submission made by the pai’ties orally and by no bond or agreement made or signed by them, the only memorandum of it being signed by their counsel and not referred to in the order of reference. This being the case, if it could be altered by an agreement signed by the parties adding a third arbitrator, as it could by the Virginia cases, then surely it might be altered by an agreement made by the parties in the same manner with the original agreement, that is, by an oral agreement of the parties and a memorandum of it made and signed by their counsel. See as supporting this position Evileth v. Chan et al, 17 Mass. 460. As a still stronger case showing the liberality of the courts in enforcing awards, which have been rendered by arbitrators, one of whom has been added by the oral agreement of parties at the time of trial, though the original agreement was in writing and signed by the parties, I may refer to Blanchard v. Murray, 15 Vt. 548. The syllabus of this case is: “In the case of a written submission to three, and in case one of them could not be procured, to a fourth — held that an award made by the four in pursuance of an agreement of parties on the day of trial was good.”

The case shows that this addition of the fourth arbitrator on the day of trial was made by an oral agreement. But I will say, that where in other cases, as is claimed, the case has been submitted to arbitrators by an order of the court made by consent of counsel only, it seems to me the counsel by a written agreement at the time of the trial would have a right to add another arbitrator. For though counsel cannot as such without special authority submit a case to arbitration in pais, yet they can do it in court; and if once done, they have at least as much discretion at the trial of the case as counsel to' make arrangements about the trial, as they would have on a trial before a jury in court; and they can by consent try a case before less than twelve jurors. There seems to mea marked difference between holding that counsel as such without the consent of their client can submit a case before suit brought or after suit brought by an agreement in pais, and holding that, the case having been regularly and properly submitted to 'arbitrators by an order of the court, on the trial of it before arbitrators the counsel as such may make an agreement to add to or subtract from the number of arbitrators, who are to try the case.

There is still another ground, which, it seems to me, ought to have weight in reaching a conclusion in this case. The case was submitted by the order of the court to two named arbitrators, and in case they should disagree, then to the determination of some other person whom they may choose, as umpire. It has been decided in Beson v. Berry, 4 Rand, 275, that where a submission is made of all matters in difference between two parties in a pending suit to two arbitrators and such umpire as they may choose, their award to be made the judgment of the court; and the arbitrators and umpire act together and máke a joint award, such award will be good. This being law, as V. B. Dunbar could have been chosen as an umpire by the other arbitrators named in the rule, and could have set with them, as he did, and signed the reports jointly with them, and in short could have done exactly what he did do, are the actions of those arbitrators and umpire to bo treated as a nullity, because counsel in their agreement choose to call Dunbar a third arbitrator instead of an umpire, and he chooses to sign his name as an arbitrator and not as an umpire? It does seem to me, that this would be applying to arbitrators a degree of technicality not justified by the liberal spirit now shown to them.

For these reasons I think the circuit court should have entered up a judgment on the award in this case, as it did, unless the third and fourth exceptions to the award can be sustained. The first of these is, that V. A. Dunbar was an important witness for the plaintiff below and testified in favor of the plaintiff below and then rendered a decision on his own testimony, and the fact that he was such a witness was unknown, when the consent was given to his sitting as an arbitrator. 'Whereof the counsel for the defendant below makes affidavit, that when he consented that Dunbar should be added as an arbitrator, he was not aware that he was an important witness for the plaintiff, and that the award was largely due to his testimony. But before this affidavit had been made, Dunbar had made an affidavit, that when he was being sworn as an arbitrator by the justice, he was asked by him, whether he knew any thing about the matter submitted to the arbitrators, and his -answer thereto showed that he did not, and all he did know about the business of the pai'ties was subsequent to and outside of the matters in controversy in this suit, and they were not considered in making up the award. He has no recollection of being sworn as a witness before the arbitrators. From this evidence it seems to me there was no improper behavior by Dunbar as an arbitrator. In reaching this conclusion I have taken his affidavit as stating the facts rather than that of the defendant’s counsel. If Dunbar did give any important testimony before the arbitrators, which materially affected their award, he should have been proven to have done so by them, 'and in the absence of any statement from them we can not set aside their award because of any supposed misconduct on the part of the arbitrator, Dunbar. If he was guilty of any misconduct, the plaintiff in error has failed to prove it by any satisfactory evidence.

There is nothing in the exception to the award, that the record does not show that a bill of particulars was filed with the declaration. The declaration may have set out the plaintiff’s claim in such detail as to render a bill of particulars entirely unnecessary. This declaration is not copied in the record, it having been lost, or it may be, that, as I suppose was the case, all the particulars of the plaintiff’s claim were produced before the arbitrators. The award on its face refers to the particulars of the plaintiff’s claim.

The judgment of the circuit court must be affirmed; and the defendant in error must recover of the plaintiff in error his costs in this Court expended and damages according to law.

AeeiRihed.