Gallagher v. Kern
| Decision Date | 12 January 1875 |
| Citation | 31 Mich. 138 |
| Court | Michigan Supreme Court |
| Parties | James Gallagher v. Frederick Kern. [1] |
Heard January 7, 1875
Error to Benzie Circuit.
Judgment reversed entirely, with costs of both courts.
N. A Parker and S.W. Fowler, for plaintiff in error.
N. W Nelson and S. F. White, for defendant in error.
Christiancy, J., did not sit in this case.
This is a writ of error to remove into this court a judgment rendered in the circuit court for the county of Benzie, confirming an award.
Several questions were presented on the argument, but it will not be necessary to refer to them at large.
The arbitration agreement was made for the purpose of settling the differences between the parties, arising out of their business connection during the six years previous to April 25, 1872. Most of these dealings were partnership matters, under a business arrangement whereby the name of Gallagher was to be the firm name, Kern, for private reasons, having preferred it. The award covers the accounting, and determines the respective rights and liabilities of both.
Among other things, it awarded to Kern several parcels of real estate,--some held already in his own name, and some in Gallagher's, but none in the name of both.
Upon the hearing, it appeared from the evidence, that as to a part, at least, of the lands,--and the parcels of most value,--it was not admitted, and did not appear, except by conflicting proof, that the firm owned them. The title is one in fee simple, and the effect of the finding was to establish an ownership by parol evidence, variant from the apparent paper title.
The statute is express that "no such submission shall be made respecting the claim of any person to any estate in fee, or for life, in real estate."--C. L., § 6890. Any determination by arbitrators, where the parties do not agree upon the title, is, therefore, beyond their jurisdiction.
This being so, the award cannot be sustained or enforced under the statute, inasmuch as a valid award is the foundation of the judgment of the circuit court. That court had no right under the law to confirm the award, and the judgment must for this reason be reversed.
We do not readily see how the case can be remanded for further action. The land matters are so mixed up with the rest, upon the theory of one of the parties, that no settlement would be perfect without passing upon the question of their ownership. And from the affidavits of the arbitrators it is evident they now have such feelings against Gallagher that he should not be compelled to appear before them. We do not...
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...by the statute concerning arbitration. (Const. Wyo. Art. 19; R. S. 1899, Sec. 4068; Lang v. Balliette (Mich.), 7 L. R. A., 720; Gallagher v. Kearn, 31 Mich. 138.) is also void for lack of description. (2 Ency. L., 761.) The award is divisible. That appears on its face, and from the fact tha......
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McFerren v. B & B Inv. Group, Docket No. 204791
...to arbitration. The Michigan Supreme Court interpreted the predecessor to M.C.L. § 600.5005; MSA 27A.5005, 1871 CL 6890, in Gallagher v. Kern, 31 Mich. 138 (1875). There, the parties agreed to submit to arbitration disputes arising from their partnership, including the ownership of several ......
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Gessner v. Minneapolis, St. P. & S. S. M. Ry. Co.
...is a fatal jurisdictional defect, and will not sustain a judgment. And so the courts hold. Gibson v. Burrows (Mich.) 3 N. W. 200;Gallagher v. Kern, 31 Mich. 138;McGunn v. Hanlin, 29 Mich. 476;Barney v. Flower (Minn.) 7 N. W. 823;Fink v. Fink, 8 Iowa, 313;Abbott v. Dexter, 60 Mass. 108;Heath......
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North American Steel Corp. v. Siderius, Inc., Docket No. 27702
...with the case at bar in terms of alleged prejudice by an arbitrator. See Mather v. Day, 106 Mich. 371, 64 N.W. 198 (1895); Gallagher v. Kern, 31 Mich. 138 (1875). However, it seems well established that the partiality or bias which will overturn an arbitration award must be certain and dire......