James v. Southern Lumber Co.

• Citation: 153 Mass. 361,26 N.E. 995
• Parties: JAMES et al. v. SOUTHERN LUMBER CO.
• Decision Date: 28 February 1891
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 361

26 N.E. 995

JAMES et al. v. SOUTHERN LUMBER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1891

Exceptions from superior court, Suffolk county ALBERT MASON, Judge.

COUNSEL

C.T Gallagher and H.R. Bailey, for plaintiffs.

E.O Bicknell, for defendant.

OPINION

FIELD C.J.

The record in this case is somewhat confused, but apparently the last agreement of submission was dated May 20, 1889, and it provided that the award should be filed in the superior court for the county of Suffolk within six months from that date. On May 24, 1889, the award, contained in a sealed envelope was sent by the arbitrators to the clerk's office of said court, and was received by the clerk or his assistant, who indorsed on the envelope the following: "May 24, received." Upon the envelope the arbitrators had written the following indorsement: "To the Superior Court for the County of Suffolk: This envelope contains the award of the undersigned in the case of James & Abbot v. The Southern Lumber Company, to be opened and filed on Nov. 23, 1889, or upon the return of the awards in the cases of S.M. Winchester v. James & Abbot, and James & Abbot v. S.M. Winchester, at which time all may be opened and filed together. EDMUND H. BENNETT, JOSHUA G. GOOCH, EDWARD A. ADAMS, Arbitrators. Boston, May 24, 1889." The award, while remaining in the sealed envelope, was entered in court on February 19, 1890, at the request of the counsel for the plaintiffs; and on April 19, 1890, the award was opened by the clerk and placed on file. Apparently the award was recommitted by the court to the arbitrators on May 22, 1890, and on May 29, 1890, the arbitrators made a new award affirming the award formerly made, which was received and opened by the clerk of the court on the same day. If this award can be considered as made and reported to the court on May 24, 1889, then it was made and reported within "the time fixed by the agreement" of the parties; but if it cannot be considered as made and reported to the court until either February 19, 1890, or April 19, 1890, then it was not made and reported to the court until after the time fixed in this agreement, and the award is void. Pub.St. c. 188, § 5; Mining Co. v. Pratt, 101 Mass. 359; Sperry v. Ricker, 4 Allen, 17; Bent v. Telephone Co., 144 Mass. 165, 10 N.E. 778. Pub.St. c. 188,§§ 8, 9, contain the provisions relating to the return of the award into court. The award may be delivered by one of the arbitrators to the court, "or shall be inclosed and sealed by the arbitrators, and transmitted to the court, and shall remain sealed until opened by the clerk." "The award may be returned at any term or session of the court held within the time limited in the submission, and the parties shall attend without any express notice for that purpose," etc. These provisions are substantially the same as those contained in Rev.St. c. 114, §§ 7, 10. In Burghardt v. Owen, 13 Gray, 300, it was held that under the Revised Statutes the filing of the award in the clerk's office in vacation within the time fixed in the agreement gave it no validity, but that the award must be returned into court at a term or session, and that, as the next term or session of the court began after the time fixed in the submission had expired, the award was not returned within the time required by law, and was void. In the case at bar we might, perhaps, take judicial notice that there were more than one session of the superior court for the county of Suffolk between May 24, 1890, and the expiration of six months from May 20, 1890, so that, if the possession of the clerk during a term or session of the court could be considered as the possession of the court, the award might be said to have been transmitted to the court at a term or session held "within the time limited in the submission;" but we do not find it necessary to determine this. By St.1885, c. 384, § 2, it is provided that the...