Gardner v. Newman

• Decision Date: 18 December 1902
• Citation: 135 Ala. 522,33 So. 179
• Parties: GARDNER v. NEWMAN.
• Court: Alabama Supreme Court

33 So. 179

135 Ala. 522

GARDNER v. NEWMAN.

Supreme Court of Alabama

December 18, 1902

Appeal from circuit court, Blount county; A. H. Alston, Judge.

Action on the common counts by W. L. Newman against H. M. Gardner. From a judgment for plaintiff, defendant appeals. Reversed.

Arthur L. Brown, for appellant.

Emory C. Hall and F. E. St. John, for appellee.

DOWDELL J.

When parties submit matters in controversy to arbitration, and an award is made pursuant to the agreement of submission, such award is final, unless the arbitrators are guilty of fraud partiality, or corruption in making it; and, like a judgment or decree of a court, it may be pleaded in bar of a subsequent suit founded on the same claim or demand. Burrus v. Meadors, 90 Ala. 140, 7 So. 469; Brewer v. Bain, 60 Ala. 153; Yeatman v Mattison, 59 Ala. 382; Reynolds v. Roebuck, 37 Ala. 408; Willingham v. Harrell, 36 Ala. 583; McRae v. Buck, 2 Stew. & P. 155

. And this is true whether the award is made on arbitration had under the statute or at common law. The award is conclusive, and, like a judgment, operates by way of estoppel on the parties. 1 Am. & Eng. Enc. Law (1st Ed.) 711; Burrus v Meadors, supra.

The first, second, fifth, and sixth pleas to the complaint set up an arbitration and award between the parties. These pleas were demurred to, the grounds of demurrer being: First "that said pleas do not allege or show that the alleged arbitrators, before making their said alleged award, were sworn impartially to determine the matters submitted to them according to the evidence and the manifest justice and equity of the case, to the best of their judgment, without favor or affection"; second, "said pleas do not allege or show that the matters in dispute between them was concisely stated in writing, and signed by them, in the alleged submission for arbitration"; third, "said pleas do not allege or set up such a submission to arbitration, and such an award by arbitrators, as is substantially a compliance with statutory requirements." It is evident from the grounds of demurrer that the plaintiff construed the defendant's pleas as an effort to set up a statutory arbitration and award. The pleas were by no means an attempt on the part of the defendant to have the award made the judgment of the court under the statute. They were intended merely to set up an arbitration and award as a bar to plaintiff's suit, and to do this it was not necessary to aver all of the requirements of a statutory arbitration and award, since a common-law arbitration and award is as effectual as a defense as the statutory arbitration. The first plea averred that the submission was in writing, and signed by the parties, and set forth a copy of the agreement signed by the parties; the second, fifth, and sixth pleas averred the agreement to submit their matters in dispute to arbitration, without averring that such agreement was in writing, and also averred that the arbitration was had, and that an award was made. It is manifest that the pleader did not attempt or intend to set up a statutory arbitration under the second, fifth, and sixth pleas, and we need not determine whether in the first plea it was necessary to have averred that the arbitrators were sworn to show a statutory arbitration, since that question is wholly unimportant here. For, conceding that the averments were insufficient to show a statutory arbitration, we...