Burkland v. Johnson

• Decision Date: 03 March 1897
• Citation: 50 Neb. 858,70 N.W. 388
• Parties: BURKLAND v. JOHNSON.
• Court: Nebraska Supreme Court

50 Neb. 858

70 N.W. 388

BURKLAND

v.JOHNSON.

Supreme Court of Nebraska.

March 3, 1897.

Syllabus by the Court.

1.Whether an award made in pursuance of title 28, Code Civ. Proc., may be set aside or modified on motion because of a mistake in computation or allowance of interest by the arbitrators (such mistake not appearing upon the face of the award), not decided.

2.If such an award may be set aside or modified on motion for such reason, it can only be done when it appears that such a mistake was that of all the arbitrators whose concurrence was necessary to the making of the award.

3.It is the duty of arbitrators chosen and acting in pursuance of the provisions of title 28, Code Civ. Proc., to make and state separately the conclusions of fact and conclusions of law reached by them, unless the parties to such arbitration have, by their agreement of submission, waived such requirement.

4.An award made by such arbitrators without a statement of any conclusions of fact or conclusions of law found by them, such requirements not having been waived, is erroneous; and a judgment confirming such award may be reversed in a direct proceeeding instituted for that purpose.

5.The failure of such arbitrators to make and state the conclusions of fact and law found by them is an irregularity merely, and one that does not render their award void, nor oust the district court of jurisdiction to confirm it.

6.It is competent for parties to such an arbitration to waive any irregularity in the proceeding which does not go to the jurisdiction of the arbitrators to act, or the jurisdiction of the district court to confirm the award made.

7.Parties who submit their differences to arbitration in pursuance of the provisions of title 28 of the Civil Code must acknowledge their agreement of submission before a justice of the peace; and failure to do so will deprive the district court of jurisdiction to confirm the award made or render judgment thereon on motion of the successful party.

8.The failure to acknowledge before a justice of the peace the agreement of submission is not an irregularity that the parties to the arbitration may waive; and their ratification of an award made under such defective submission will not invest the district court with jurisdiction to confirm such award.

9.Jurisdiction of the subject-matter of an action cannot be conferred upon a court even by consent.

10.The method provided by title 28 of the Code of Civil Procedure for settling differences existing between parties by arbitration is not exclusive.That right existed at common law, and has not been taken away by the statute.

11.Held, in the case at bar, that the plaintiff in error had estopped himself from assailing the award made, either because of the failure of the arbitrators to state the conclusions of fact and conclusions of law found by them, or because of a mistake in computation and allowanceof interest alleged to have been made by the arbitrators.

Error to district court, Saunders county.Wheeler, Judge.

Submission of controversy between Emanuel G. Burkland and Charles A. Johnson.From a judgment for the latter, the former brings error.Reversed.

V. L. Hawthorne and Pound & Burr, for plaintiff in error.

Good & Good and Geo. I. Wright, for defendant in error.

RAGAN, C.

On the 27th of March, 1894, Emanuel G. Burkland and Charles A. Johnson submitted certain differences existing between them to arbitrators.The submission was in writing, duly signed by the parties, and acknowledged by them before a notary public.The arbitrators selected convened, and, after a somewhat protracted investigation, made in writing their award, as required by the agreement between Burkland and Johnson.The award, so far as material here, is as follows: “First.We award that E. G. Burkland shall on or before the 1st day of May, 1894, pay and discharge the judgment and costs in the case of the Saunders County National Bank v. E. G. Burkland and C. A. Johnson, now pending in the district court of said county, and not further prosecute said case.Second.We award that C. A. Johnson shall file a dismissal of the suit wherein he is plaintiff and said Burkland is defendant, at the costs of said Johnson, said suit being for the specific performance of a real-estate contract; and the said Johnson shall sign said dismissal, and pay the costs in said suit, on or before the first of May, 1894.Third.We award that said E. G. Burkland and C. A. Johnson shall file a dismissal and settlement, at the costs of said C. A. Johnson, in each of the suits, for rent, which are now pending in the courts of said county, and that C. A. Johnson shall pay the costs therein on or before May 1st, 1894.Fourth.We award that E. G. Burkland and wife shall make and deliver to said C. A. Johnson, on or before May 1st, 1894, a quitclaim to lot one (1), block one hundred and forty-eight (148), in the County addition to the city of Wahoo, aforesaid.Fifth.We award that C. A. Johnson and wife shall make and deliver to E. G. Burkland, on or before May 1st, 1894, a quitclaim deed to lots three and four (3 & 4), block one hundred and forty-nine (149), in the County addition to Wahoo, aforesaid.Sixth.We award that said E. G. Burkland shall on or before the 1st day of May, 1894, pay or secure by good bankable paper, to the said C. A. Johnson, the sum of three thousand and eighty-nine ($3,089.50) dollars and fifty cents.Seventh.We award that, upon the compliance with the foregoing awards by the parties, the said E. G. Burkland shall execute and deliver to said C. A. Johnson a release of all actions and causes of action or demands, of whatsoever nature, which existed between them at the time of the execution of the contract and bonds for arbitration, and that the said C. A. Johnson shall execute and deliver to said E. G. Burkland a similar release at same time.Eighth.We award that each party pay one-half of the costs of this arbitration.”This award was filed in the office of the clerk of the district court of Saunders county on the 1st day of May, 1894, and Johnson thereupon moved the court to confirm it.The court caused a notice of this motion to be served upon Burkland, who appeared, and moved the court to set aside the award, on grounds that will be hereinafter stated.A large number of affidavits were read to the court in support of the motions filed by the respective parties, which are incorporated into the bill of exceptions, and made a part of the record here.The district court found specially that Johnson had in all things ratified and confirmed said award, and performed all requirements thereof; that Burkland had accepted said award, and the terms and provisions thereof, and had in all things ratified the same, and performed all the requirements of said award, except the requirement contained in the sixth item of said award; and thereupon the court sustained the motion of Johnson to confirm said award, confirmed it, and, upon the motion of Johnson, rendered judgment in his favor, and against Burkland, for the amount awarded the former, against the latter, by the arbitrators in the sixth item of their award.To reverse this judgment, Burkland has prosecuted here a petition in error.

1.One of the grounds of Burkland's motion to set aside the award of the arbitrators was that they had made a mistake in the computation of the amount awarded Johnson in the sixth item of their award, and that this mistake consisted in allowing Johnson certain interest; and the argument is made here that the judgment of the district court, confirming the award, should be reversed because of this alleged mistake of the arbitrators in the amount awarded Johnson from Burkland.The mistake in computation, if there was one, does not appear upon the face of the award; and whether one party to an arbitration proceeding may, on motion, assail the award made on such ground, we do not decide.If an award may be assailed by motion to set it aside because of a mistake in computation made by arbitrators, the relief asked for by the motion can only be granted--that is, the award can only be set aside or modified for such reason--when it appears that such a mistake was made, and that it was the mistake of all the arbitrators.Pulliam v. Pensoneau, 33 Ill. 375.In the case at bar the arbitrators do not concur in saying that the amount awarded Johnson was the result of a mistake made by them in computation or in allowing him interest.Indeed, the evidence leaves no doubt in our minds that the award made by the arbitrators was the one they all intended to make, and we therefore conclude that the district court found that no mistake as to computation or allowance of interest had been made by the arbitrators, and the evidence certainly sustains that conclusion.By the agreement of submission entered into between the parties, five arbitrators were selected, and the award made by any three of them was to be binding upon the parties to the arbitration proceeding.The award made by these arbitrators is the judgment of the tribunal selected by the parties themselves, and, like any other judgment, it...