Field v. Oliver

• Decision Date: 31 January 1869
• Citation: 43 Mo. 200
• Parties: FRANK M. FIELD, Defendant in Error, v. JOHN W. OLIVER, Plaintiff in Error.
• Court: Missouri Supreme Court

43 Mo. 200

FRANK M. FIELD, Defendant in Error,

v.JOHN W. OLIVER, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to First District Court.

Ryland & Son, for plaintiff in error.

I. The award, not being witnessed by a subscribing witness when made, was not such as the statute authorizes the court to give judgment upon. (Gen. Stat. 1865, pp. 771-2, §§ 1, 6, 10, 11, 23; 1 Greenl. Ev. § 569; Call v. Dunning, 4 East. 54; Rex v. Harringworth, 4 Maule & S. 353.)

II. If the award was imperfect, or needed correction or amendment, the party in whose favor it was made should have given notice to the other and moved the Circuit Court for leave to amend or correct the same. (Same statute above cited; Newman v. Labeaume, 9 Mo. 29.)

III. The court erred in striking out that part of Oliver's answer setting up an equitable set-off. This answer averred Field's insolvency and showed his indebtedness to Oliver. There was, beyond a doubt, good ground for the interposition of the equity powers of the Circuit Court. (2 Sto. Eq. Jur. §§ 1436, 1436 a, 1437 a, 1438, 1439 a, 1440, 1441; Clark v. Cort, 1 Craig & Phil. 153-4; Rawson v. Samuel, id. 160; Pond v. Smith, 4 Conn. 302; Lindsay et al. v. Jackson et al., 2 Paige, 581; Collins v. Farquar, 4 Litt. 154; Tribble v. Paul, 7 Monr. 455, 463; Jones v. Waggoner, 7 J. J. Marsh. 147; Murray v. Williamson, 3 Binn. 135; 2 Burr. 825; 4 id. 2220; 3 Mason, 138; 3 Johns. Ch. 574; 11 Verm. 96; 6 Paige, 118; 1 Dev. & B. Eq. 306; 6 Conn. 16.)

Green & Rathburn, and Ewing & Smith, for respondent.

I. The main objection of Oliver to the award was, that it was not attested by a subscribing witness until after the award was completed. This, we say, is immaterial; it may be attested at any time before the judgment is entered. (Newman v. Labeaume, 9 Mo. 35; Gen. Stat. 1865, p. 772, § 10; 9 Mo. 34.)

II. The notice required by law to be served before the award is confirmed by the court was given. (Gen. Stat. 1865, p. 771, § 8.)WAGNER, Judge, delivered the opinion of the court.

This was a motion in the Lafayette Circuit Court to have an award of arbitrators made a judgment of that court. The motion was made by Field. Oliver appeared and filed his answer to the motion, setting up the ground that the award was not such as by statute would authorize the court to render judgment upon it, because the same was not attested by a subscribing witness, as the statute requires. The answer further set up, as an equitable defense, that Field was indebted to Oliver on two several promissory notes, which were not included in the submission and award, and which were for a greater amount than the sum awarded by the arbitrators; and that Field was wholly insolvent, so that the collection of the notes could not be enforced by suit or legal process. This answer was stricken out by the court, and judgment given on the award in favor of Field. Oliver appealed to the District Court, where the judgment was affirmed. It appears that the award was filed in the office of the clerk of the Circuit Court, without having any witness thereto, and was afterward taken out by Field, who procured a person to attest the same as a witness. Oliver alleges that this was done without authority and fraudulently, for the purpose of obtaining a judgment and forcing him to pay the money unjustly.

The statute provides that where the award shall be imperfect in some matter of form not affecting the merits of the controversy (and where it had been a verdict, such defect could have been amended or disregarded by the court), any party to the submission may move the court to modify or correct the same. Until the attestation of a witness to the award, it was incomplete, but it was competent to have the defect remedied by order of court. The action of the party, however, in taking the award from the clerk's office, where it was deposited, of his own motion and at his own pleasure, and obtaining the signature of a witness, was irregular, and receives no sanction or countenance from the law.

The remaining question is whether...