Doherty v. Doherty

• Decision Date: 04 January 1889
• Parties: DOHERTY v. DOHERTY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 367

19 N.E. 352

DOHERTY v. DOHERTY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1889

COUNSEL

A. Russ and C.F. Paige, for plaintiff.

J.L. Eldridge, for defendants.

OPINION

FIELD, J.

The first award reported to the superior court was recommitted for a specific purpose. Upon recommitment, two of the arbitrators signed a new award, and returned it into court; but the third arbitrator, "being absent from his home, did not receive the notice of the meeting of the arbitrators until after the award was returned into court, was not present at said meeting of said arbitrators, or any other meeting of the arbitrators, after the filing of the first award." It thus appears that the last award, which was the only award before the superior court, when it passed the order appealed from, was not the result of deliberation by all the arbitrators, and that one of the arbitrators had no opportunity to consider it. Although the submission provides that the award of the majority shall be final, yet all must meet in consultation upon the decision, unless, indeed, one refuses, after notice, to attend, because, if the absent arbitrator had been present, "he might have drawn his brethren to a different opinion." Carpenter v. Wood, 1 Metc. 409. See Short v. Pratt, 6 Mass. 496; Blodgett v. Prince, 109 Mass. 44; Campbell v. Upton, 113 Mass. 67; Cumberland v. North Yarmouth, 4 Greenl. 459; Crofoot v. Allen, 2 Wend. 494; Morse, Arb. 151, 152.

Without considering the other objections, the order rejecting the award must be affirmed.