Barney v. Flower

• Decision Date: 07 January 1881
• Citation: 7 N.W. 823,27 Minn. 403
• Parties: Thomas J. Barney v. M. T. C. Flower and another
• Court: Minnesota Supreme Court

7 N.W. 823

27 Minn. 403

Thomas J. Barney v. M. T. C. Flower and another

Supreme Court of Minnesota

January 7, 1881

Thomas J. Barney, of the one part, and M. T. C. Flower and H. P Winder of the other, entered into an agreement to submit to three arbitrators therein named all matters of dispute between them growing out of a lease of certain real estate from the former to the latter, the submission providing that the award being made and reported to the district court for Ramsey county, final judgment should be entered thereon in that court.The arbitrators having made an award in favor of Barney, he moved for judgment thereon.The motion was opposed, but was granted by Simons, J., and judgment was entered, from which Flower and Winder appealed.

Judgment reversed.

C. K Davis and E. S. Chittenden, for appellants.

Lamprey & James, for respondent.

In making the submission all that is necessary is a substantial compliance with the requirements of the statute.Bacon v. Ward,10 Mass. 141;Bloomer v. Sherman, 5 Paige, 575;Hill v. Taylor,15 Wis. 208;Wright v. Raddin,100 Mass. 319.If parties appear before arbitrators illegally appointed or chosen, they waive the defect.Mitchell v. Wilhelm, 6 Watts, 259;Cutter v. Whittemore, 10 Mass. 442.

OPINION

Gilfillan, C. J.

Of the many objections made by the appellant to the judgment appealed from we shall notice but one, as that is fatal to the judgment.The statute regulating the submission of controversies to arbitrators provides, (Gen. St. 1878, c. 89, § 3,)"The parties shall appear in person, or by their lawful agents or attorneys, before any justice of the peace, and shall there sign and acknowledge an agreement, in substance as follows: * * *" Of the three persons entering into the agreement to submit to the arbitration, two only acknowledged before a justice of the peace, and they not before the same justice, and a third acknowledged before a notary public.

The jurisdiction of the arbitrators under the statute over the matter referred to them depends on a compliance with the statute.It is a special jurisdiction, which can be created only in the manner prescribed by the statute.Every material requirement of the statute must be complied with.Among them is the acknowledgment prescribed.Heath v. Tenney, 3 Gray 380;Abbott v. Dexter, 6 Cush. 108;Franklin Mining Co. v. Pratt, 101 Mass. 359;Fink v. Fink, 8 Iowa 312.

That the acknowledgment shall be made before a justice is made by the terms of the statute as essential as the signing.It is argued that what the statute aims at is to have the agreement acknowledged; that the acknowledgment is the material thing and that it is immaterial before what officer it is made, if he have authority to take acknowledgments.We do not know why the legislature required the acknowledgment to be taken by a justice of the peace, rather than by any other officer; but it has so required, and courts have no more right to treat an acknowledgment before any other officer as a compliance with the statute than they have to dispense with the acknowledgment altogether, and substitute some other mode of proof of the signing.The submission, therefore, though it may have been good as a submission to...