Hyeronimus v. Allison

• Decision Date: 28 February 1873
• Parties: ALBERT P. HYERONIMUS, Respondent, v. JAMES W. ALLISON, Appellant.
• Court: Missouri Supreme Court

52 Mo. 102

ALBERT P. HYERONIMUS, Respondent,

v.JAMES W. ALLISON, Appellant.

Supreme Court of Missouri.

February Term, 1873.

John G. Woods and Horatio F. Simrall, for Respondents.

The partiality, or prejudice of an arbitrator must be taken advantage of by a motion to vacate the award, (W. S., p. 144, §§ 9, 11,) and cannot be shown in defense to an action on the award. (Wats. on Arb. Marg., pp. 153, 224; Billing on Awards Marg., p. 283; 1 Saund., 327, N. 3; 8 East., 244; 2 Phil., Ev., 107, Wills vs. Maccarmick, 2 Wils., 148; Morewood vs. Jewett, N. Y. Supr. Ct., 2 Rob., 496.)

J. E. Merryman and Samuel Hardwick, for Appellant.

It is the duty of the court to scrutinize closely the partiality of the arbitrators. (Strong vs. Strong, 9 Cushing, 560.)

If one of the arbitrators is partial the award will be vacated. W. S., 144, Toler vs. Hayden, 18 Mo., 399.)

SHERWOOD, Judge, delivered the opinion of the court.

This was an action brought in the Clay Circuit Court by Hyeronimus against Allison, to recover the amount of an award made on the 26th day of October, 1871, in favor of the plaintiff for $640, on account of damages alleged to have been done the cattle of plaintiff by the introduction by defendant of Texas cattle into the county. The petition in substance charges that a submission in writing was made and entered into by plaintiff and defendant whereby they submitted to three arbitrators, by them chosen, the matters of difference arising out of the death of plaintiff's cattle from Texas fever, alleged to have been communicated to them by the cattle of defendant unlawfully brought by the latter into the county of Clay; that by the terms of said submission it was agreed that the award should be made a judgment of the Clay Circuit Court, provided a copy of the award should be made and furnished to both parties prior to December 1st, 1871; that the arbitrators so selected met, and after hearing the evidence of both parties, found in favor of plaintiff on the said 26th day of October in the sum of $640, and furnished both parties with a copy of the award, on the day on which the same was made; that said submission and award were destroyed by fire, and that defendant had refused to pay the sum so awarded, &c., &c.

Defendant in his answer admits the submission to arbitrators and the award made, and the destruction of the papers by fire, but claims that such submission was by virtue of the laws of this State, giving the right to either party to file exceptions; that said award was not binding on defendant because of the prejudice of Garthe, one of the arbitrators; the fact of which prejudice was unknown to defendant at the time of the reference was held, and the award made; that plaintiff's cattle did not die of Texas fever, &c. The answer concludes with a prayer that the award “be disregarded.” The court on motion of the plaintiff struck out all that portion of defendant's answer, commencing with the allegation that said award was not binding, except that portion which charges Garthe to have been prejudiced; and to this ruling defendant excepted.

The plaintiff then filed his replication, denying the prejudice of Garthe, “and that the same was unknown to defendant at the time of the reference aforesaid”--thereby admitting in effect the fact of such prejudice.

It does not any where appear at what time the destruction of the papers occurred, or that plaintiff ever attempted to have judgment rendered upon the award; but the suit was brought on the award on the 23d day of December, less than two months after the same was made.

A trial was had before the court, and testimony was introduced on behalf of defendant which clearly showed the prejudice and partiality of Garth, the arbitrator, and strongly tended to show that the plaintiff was cognizant of such partiality and prejudice and sought by concealing his knowledge in this particular to obtain an undue advantage. Garth himself was introduced by plaintiff as a witness, and defendant objected to his testifying on the ground that being one of the arbitrators, he was incompetent as a witness to either sustain or impeach his own finding. This...