City of O'Neill v. Clark

• Decision Date: 09 February 1899
• Citation: 57 Neb. 760,78 N.W. 256
• Parties: CITY OF O'NEILL v. CLARK.
• Court: Nebraska Supreme Court

57 Neb. 760

78 N.W. 256

CITY OF O'NEILL

v.CLARK.

Supreme Court of Nebraska.

Feb. 9, 1899.

Syllabus by the Court.

1. If an irregularity in the manner of administering an oath to a witness be known at the time, objection must then be made, or it will be waived.

2. Under the statute relating to arbitrations, the arbitrators must, in their award, state separately their findings of fact and conclusions of law; but this requirement is met if the finding is as certain as is required of the verdict of a jury.

3. A single cause of action having been submitted to arbitration, an award whereby the arbitrators “find for the plaintiff, assess her damages” at a sum named, and “award” her that sum, is a sufficient separate finding of facts and of law.

4. A submission to arbitration provided for three arbitrators, that the award might be made by any two, and, if so made, would be binding. It also provided that the award should be in writing, signed by the three arbitrators named. Held, that the last provision should not be so construed as to nullify that for an award by two, but that it meant that the award must be signed by those of the arbitrators concurring therein.

Error to district court, Holt county; Westover, Judge.

A controversy between Addie M. Clark and the city of O'Neill was submitted to arbitration, and from a judgment setting aside the award the city brings error. Reversed.

Thos. Carlon, for plaintiff in error.

M. F. Harrington and J. J. Harrington, for defendant in error.

IRVINE, C.

The parties to this proceeding entered into the following agreement: “Whereas, a controversy is now pending between Mrs. Addie M. Clark, of O'Neill, Nebraska, and the city of O'Neill, Nebraska, in relation to whether the said Mrs. Addie M. Clark was injured on the night of May 17, 1896, while walking on Benton street, in said city, on account of a defect in said street, and, if injured, to what extent, and as to whether, if an injury was sustained, whether the said city was and is liable therefor, and, if liable, to what amount, and as to whether the said Mrs. Addie M. Clark, at the time she received the complained-of and alleged injuries, was guilty of contributory negligence: Now, therefore, we, the undersigned, Mrs. Addie M. Clark, and the city of O'Neill, do hereby submit said controversy to the arbitration of E. T. George, M. D. Long, and A. T. Potter, of Holt county, Nebraska, or any two of them; and we do mutually covenant and agree, to and with each other, that the award to be made by the said arbitrators, or any two of them, shall be in all things, by us and each of us, well and faithfully kept and preserved: provided, however, that the said award be made in writing, under the hands of said E. T. George, M. D. Long, and A. T. Potter. And it is further agreed that the award of said arbitrators shall be made in writing, and so made by the 20th day of July, 1896, and reported and delivered to the district court in and for said county of Holt, and that thereupon judgment shall be rendered by said court in accordance with the terms and conditions of said award, and pursuant to the statute in such cases made and provided.” This was signed by Mrs. Clark on one side, and by the mayor and city council on the other, and duly acknowledged before a justice of the peace. Pursuant thereto, the award was filed in the office of the clerk of the district court of Holt county, as follows: “We, M. D. Long, E. T. George, and A. T. Potter, to whom was submitted, as arbitrators, the matters in controversy existing between Addie M. Clark, of Holt county, Nebraska, and the city of O'Neill, in said county and state, as by their submission in writing, and bearing date the 13th day of July, 1896, more fully appears: Now, therefore, we, the said arbitrators mentioned in the said submission, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined matters in controversy submitted by them, do make this award in writing, that is to say: We find for plaintiff, and assess the amount of her recovery at the sum of $200, which sum we do award to said plaintiff, and we also award that each party pay the cost of its suit and reference. Given under our hands, this 20th day of July, 1896. M. D. Long, A. T. Potter, Arbitrators.” The city then moved for the entry of judgment upon the award. This was resisted by Mrs. Clark; the motion was overruled; a motion to recommit was overruled; and the...