Giannopulos v. Pappas

• Decision Date: 28 October 1932
• Docket Number: 5199
• Citation: 15 P.2d 353,80 Utah 442
• Court: Utah Supreme Court
• Parties: GIANNOPULOS v. PAPPAS

15 P.2d 353

80 Utah 442

GIANNOPULOS v. PAPPAS

No. 5199

Supreme Court of Utah

October 28, 1932

Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.

In the matter of the arbitration of certain controversy between Angelo Pappas and Jim Giannopulos. From order and judgment confirming award, Jim Giannopulos appeals.

REVERSED AND REMANDED WITH DIRECTIONS.

A. H Hougaard, of Salt Lake City, for appellant.

Harry G. Metos, of Salt Lake City, for respondent.

FOLLAND J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

This is an appeal from the order and judgment of the district court of Salt Lake county confirming an award made by arbitration. Giannopulos and Pappas were partners in the running of certain sheep under a lease from Jim Monaghan. A dispute arose between the partners which they decided to submit to arbitration. An arbitration agreement in writing was entered into by them on September 2, 1930, the material parts of which are as follows:

"Whereas, Jim Giannopulos and Angelo Pappas have been operating approximately 1,450 head of ewes, more or less, as partners to run and operate under terms and conditions of the Jim Monaghan lease, and,

"Whereas, there is some disagreement in the settlement of partnership affairs, the respective partners hereby covenant and agree to perform the following conditions, to wit:

"Each partner hereby agrees to select a representative and the two so selected shall select a third representative and the three so selected shall determine the equities between the partners and each partner hereby agrees to abide and perform the judgment of the Arbitration Board."

The arbitrators appointed pursuant to this agreement met November 15, 1930, and made an award as follows:

"We a body of three arbitrators, A. S. Erickson, Harry Mahleres, and Julian Neff acting to settle existing differences between James Giannopulos of Salt Lake City and Angelo Pappas of Price, Utah, after considering all the facts in the case recommend the following terms of settlement:

Expenses Allowed

Pappas expenses

$ 2,088.93

Check paid by Jim Giannopolus

600.00

Giannopolus expenses

885.78

Taxes

117.76

Range

161.92

Four rams lost

50.00

Depreciation on 25 rams

120.00

Depreciation on sheep numbering 1,425 head

828.00

John Coulus

200.00

$ 5,062.39

Due to Angelo Pappas

1,775.44

$ 6,837.83

$ 1,775.44

Held out as per statement attached hereto

200.00

$ 1,575.44

Receipts

775 lambs

$ 3,658.00

34 lambs

182.24

Wool

1,720.92

Lambing ground

425.00

Giannopolus checks

56.05

Supplies to Mellos

10.00

Last years settlement

647.62

116.00

22.00

$ 6,837.83

"A. S. Erickson

"Harry Mahleres

"Julian Neff

"November 15, 1930.

"Hyrum S. Erickson, Witness.

"It is hereby mutually agreed to withhold $ 200.00 Two hundred Dollars, from Angelo Pappas' credit until we can determine by proof that he has paid this amount upon 1929 lease covering items specifically referred to in about the following language, 'Gust Pappas and James Monaghan agree that the following items have been paid to James Monaghan after Jim Giannopolus settlement with Angelo Pappas.'

"A. S. Erickson

"H. J. Mahleres

"Julian Neff

"H. S. Erickson, Witness."

On January 12, 1931, Angelo Pappas gave notice to Jim Giannopolus of his motion to confirm the award and filed such motion in the district court of Salt Lake county. In response to the motion to confirm, Giannopolus filed a verified answer in which he set up affirmatively reasons why the award should not be confirmed but should be annulled and vacated, and prayed that the court make an order vacating the award, and that Angelo Pappas take nothing by the proceeding. The answer is supported by affidavits signed by two of the arbitrators. No reply or denial of any kind was filed to the answer and supporting affidavits. After a hearing at which the only matters before the court were the motion, answer, and affidavits, and at which no additional evidence was offered or taken, the court confirmed the award and entered judgment in favor of Pappas and against Giannopolus for the sum of $ 1,775.44. Giannopolus then filed a motion for a new trial, and, in addition to the other grounds stated in his answer theretofore filed, alleged for the first time that the award appeared on its face to be void as not a final adjudication of the rights of the partners. An amended motion to vacate the award was filed and considered by the court at the same time. These motions were denied. This appeal is taken from the judgment entered and the order denying a new trial.

These proceedings were instituted under the provisions of the Uniform Arbitration Act, Laws of Utah 1927, c. 62, p. 100. The act provides that two or more persons may agree in writing to submit a matter of arbitration; that the arbitration agreement must state the question or questions to be submitted with sufficient definiteness to present one or more issues or questions upon which an award may be based; that the arbitrators shall appoint a time and a place of hearing and notify the parties thereof and may adjourn the hearing from time to time as may be necessary; that the award shall be in writing signed by the arbitrators or a majority of them and shall definitely deal with all matters of difference in the submission requiring settlement, or the arbitrators may in their discretion make a partial award which shall be enforceable in the same manner as a final award; that at any time within three months after the award is made, unless time is extended, any party to the arbitration may apply to the court for an order confirming the award, and the court "shall grant such an order unless the award is vacated, modified, or corrected" as provided in the act. An order vacating the award may be made upon application of any party to the arbitration on the following grounds:

"(a) Where the award was procured by corruption, fraud or other undue means.

"(b) Where there was evident partiality or corruption in the arbitrators, or either of them.

"(c) Where the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence, pertinent and material to the controversy; or of any other misbehavior, by which the rights of any party have been prejudiced.

"(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award, upon the subject matter submitted was not made."

Appellant urges the following objections to the confirmation of the award: (1) That the award of the arbitrators was not final; (2) that the award does not conform to the agreement of submission; (3) that appellant was not afforded a fair opportunity to be heard and present his evidence; and (4) that the court, in passing on the motion to confirm the award and the motion to vacate, did not give consideration to the affidavits of the two arbitrators filed in support of the motion to vacate. These objections it is claimed come within the provisions of the act as supplying grounds for annulment of the award. Respondent contends that the only question to be considered on this appeal is whether the trial court "erred in ruling the affidavits of the arbitrators are insufficient and incompetent to vacate the award."

A bill of exceptions was settled and filed, but it does not disclose any rulings by the court on the question of admissibility of the affidavits of the arbitrators. The bill discloses that no evidence was offered or submitted by either party except the affidavits of the two arbitrators and the motion and answer filed in the case. The court made no findings of fact and undoubtedly decided the case on the theory that the answer, which was not denied, aided by the affidavits, did not state sufficient facts to justify an annulment of the award. The pleading filed by the appellant is denominated an answer, but we think in legal effect it may be regarded as a motion to vacate the award, since it affirmatively sets out reasons why such should be done and prays that the award be vacated and that plaintiff take nothing. We are justified in looking at the substance rather than the form of the document, particularly since no point is made that the motion was not in the form required by the statute. The answer or motion to vacate presented an issue of fact and called for a reply or answer. None was filed. The affidavits of the arbitrators Erickson and Neff were filed by appellant in support of the answer or motion to vacate. There was no denial of the matters or things stated in the affidavits. Such competent and material statements of fact as are contained in the answer and motion to vacate and in the affidavits must, for failure to deny, be taken as true. On the record the only question before us is whether the verified answer and supporting affidavits state facts sufficient to furnish grounds for annulment of the award under the provisions of the act. If they do, the judgment must be set aside and a new trial granted.

It is generally recognized by the authorities that the award of arbitrators, acting within the scope of their authority, determines the rights of the parties to it as efficiently as a judgment secured by legal procedure and is binding on the parties until set aside or its validity is questioned in some proper manner. 2 R. C. L. 386. The purpose of the law is to encourage persons who wish to avoid delays incident to legal action to obtain a settlement of their differences by arbitrators of their choosing. To this end arbitration is favored in the law as a speedy and inexpensive method of adjudicating differences by a tribunal whose award is...