Evans v. Edenpield

• Decision Date: 10 December 1909
• Docket Number: (No. 2,054.)
• Citation: 7 Ga.App. 175,66 S.E. 491
• Parties: EVANS. v. EDENPIELD.
• Court: Georgia Court of Appeals

(7 Ga.App. 175)

66 S.E. 491

EVANS.

v.EDENPIELD.

(No. 2, 054.)

Court of Appeals of Georgia.

Dec. 10, 1909.

1. Arbitration and Award (§ 89^*) — Impeachment by Arbitrator.

An arbitrator will not be permitted as a witness to impeach his award.

(Ed. Note.—For other cases, see Arbitration and Award, Cent. Dig. § 519; Dec. Dig. § 89.*]

2. Arbitration and Award (§ 68*)—Exceptions—Dismissal.

The evidence introduced before arbitrators is required to be filed with exceptions to the award, and failure to file a brief of the evidence with the exceptions, where an investigation of the evidence is necessary to the consideration of the exceptions, renders proper a dismissal of the exceptions. Where no brief of the evidence is filed, exceptions dependent upon the evidence may properly be dismissed.

LEd. Note.—For other cases, see Arbitration and Award, Cent. Dig. § 346; Dec. Dig. § 68.*]

3. Appeal and Error (§ 169*)—Presentation and Reservation op Grounds of Review— Questions Not Considered Below.

This court will not undertake to decide questions not raised in the lower court, and which are presented for the first time in this court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. § 169.*]

(Syllabus by the Court.)

Error from City Court of Swalnsboro; Frank Mitchell, Judge.

Action by J. W. Edenfield against W. J. Evans. Judgment for plaintiff, and defendant brings error. Affirmed.

Williams & Bradley, for plaintiff in error.

Saffold & Larsen, for defendant in error.

RUSSELL, J. In a suit upon account, in which Edenfield was plaintiff and Evans defendant, the matters in controversy were referred to arbitration. The agreement was as follows: "This agreement, made this 11th day of September, 1908, between J. W. Edenfield, of said state and county, of one part, and W. J. Evans, of said state and county, of the other part, witnesseth that certain differences have arisen between the parties concerning the settlement of an account, mortgage, etc., wherein said Edenfield contends that said Evans is due him, and the said Evans also contends that said Edenfield is due him. Now, in order to adjust said difference, the parties do hereby submit the same to three arbitrators, viz., J. F. Price, chosen by said Edenfield, W. J. Finley, chosen by said Evans, and J. N. Youmans, chosen by the arbitrators selected by the parties. This submission, when signed, shall be delivered to one of the arbitrators chosen by the parties, and shall then be irrevocable. The award made thereunder shall be entered on the minutes of the superior court of Emanuel county, or the city court of Swainsboro, and shall have all the force and effect of a judgment or decree of said court Witness our hands and seals, this September 11, 1908. J. W. Edenfield. [L. S.] W. J. Evans. [L. S.]" As we view the case, it is immaterial whether the arbitration was common-law or statutory; for the point that the city court did not have the right to enter up judgment was not raised in the lower court and is not now before us. But, even if the arbitration was statutory, it is clear that it comes properly under the judiciary act of 1799 and nothing is said in section 4509 of the Civil Code of 1895 (which is taken from the thirtieth section of the act of 1799) which would forbid a cause pending in any court from being referred to arbitration, and the award of the arbitrators thereafter being made the judgment of such court. Of course, if the arbitration had been under the act of 1856 (Acts 1855-56, p. 222), the award could only be entered upon the minutes of the superior court, and the city court of Swainsboro would have had no jurisdiction. We have only said this much, because considerable point is made in the argument to the effect that the city court is without jurisdiction to enter judgment upon the award and that the judgment is a nullity; but, as we have before stated, this point was not raised In the lower court, and, of course, cannot be passed upon in the consideration of the present writ of error.

The plaintiff in error offered one of the arbitrators as a witness to show that the arbitration was the result of a mistake, in that the arbitrators, in finding the result, were under the impression that five barrels of turpentine were the property of the plaintiff, Edenfield, whereas the defendant, Evans, claimed and intended to make clear that said five barrels of spirits were his property. It is plain that the merit of this exception could not be determined unless a brief of evidence, accompanying the award, had sustained the correctness of the exceptor's contention, and it is also clear that the arbitrator would not be permitted to impeach his finding as to the award. South Carolina R. Co. v. Moore, 28 Ga. 399, 73 Am. Dec. 778 (2). The court did not err in declining to allow the arbitrator (Price) to testify in impeachment of his own...