McClendon v. Stewart

• Decision Date: 22 October 1923
• Docket Number: 23513
• Citation: 97 So. 547,133 Miss. 253
• Court: Mississippi Supreme Court
• Parties: MCCLENDON v. STEWART

97 So. 547

133 Miss. 253

MCCLENDON v. STEWART

No. 23513

Supreme Court of Mississippi

October 22, 1923

Division A

(Division A.) January 1, 1920

ARBITRATION AND AWARD. Arbitration award not vacated except for prejudicial misconduct of arbitrators.

Under chapter 3, Hemingway's Code (chapter 6, Code of 1906), an arbitration award will not be vacated unless procured by corruption fraud or undue means, or with evident partiality or corruption or misconduct in refusing to hear material evidence, failing to postpone the hearing, or other prejudicial misbehavior of arbitrators. Held, the evidence insufficient to vacate award.

HON. G C. TANN, Chancellor.

APPEAL from chancery court of Scott county, HON. G. C. TANN Chancellor.

Suit by Mrs. Colistia Stewart against Mrs. Minnie McClendon. From a decree for plaintiff, defendant appeals.

Reversed and judgment here for appellant.

Judgment reversed.

W. W Pierce, for appellant.

The assignment of error upon which the appellant mainly relies for a reversal is the action of the chancellor in setting aside and vacating the award of the arbitrators. The findings of the chancellor were unwarranted in view of the testimony in the record and the law governing this case. According to the testimony in the record there are some facts conclusively established: That the parties in this controversy submitted, under their solemn oath, their dispute to arbitration, agreeing to be bound by the award of the arbitrators; that the arbitrators met; that the parties appeared before the arbitrators; that the arbitrators heard all the testimony offered before them; that there was no application or request on the part of the exceptant for a continuance or postponement of the hearing to a later date; and that the arbitration was conducted honestly and fairly, and regularly in all respects. No witness denies any of these propositions.

It is further evident that if the findings of the chancellor in vacating and setting aside the award of the arbitrators is upheld by this court, it must be done on the theory that a court of equity has an arbitrary power over awards and can set aside and vacate it, whenever the judgment and conclusions reached by the arbitrators, after a full and fair hearing, does not coincide with the views of the chancellor.

An award regular in all respects as the one at bar, cannot be assailed or set aside except upon some one or more of the grounds laid down in the statute, section 107 of the Code of Mississippi of 1906, and reiterated by the whole current of authorities on the subject, to-wit: fraud, partiality, or misconduct on the part of the parties or the arbitrators. To hold otherwise would be to make the submission to arbitration and an award in pursuance of same a mere plaything to be thrown aside when either party is tired of it. Bennett v. Russell, 34 Miss. 524; Jenkins v. Maugher, et al., 46 Miss. 34; Burchell v. Marsah et al., 17 How. 344, 15 U.S. (L. Ed.) 96; Jones v. Boston Mill Corporation, 6 Pick. (Mass.) 148; Memphis & Charleston R. R. Co. v. Scruggs, 50 Miss. 296.

The fourth objection to the award in this case, that the arbitrators exceeded their powers, and that they so imperfectly executed them, that a mutual, final and definite award on the subject-matter was not made, is without foundation. There is nothing in the record to show that the arbitrators exceeded their power or authority or went beyond the limits of the submission.

PRESUMPTIONS IN FAVOR OF AWARDS. Every reasonable intendment will be indulged to give effect to proceedings of arbitrator's acts. And where objections are taken to an award proper on its face every reasonable presumption will be indulged in its favor. The burden of proof rests upon the complaining party attacking the award. 5 Corpus Juris, 244, section 675; Upshaw v. Hargrove, 6 S. & M. 286-292; Hill v. Hill, 11 S. & M. 616-626; 5 Corpus Juris, p. 246, section 681. In order to justify a court in setting aside an award, the fraud or other ground of impeachment must be made out by clear and strong evidence. 5 Corpus Juris, 247, section 695; 5 Corpus Juris, 243, sections 669-670; Mississippi Cotton Oil Co. v. Buster, 24 Miss. 91. And where fraud is charged, mere preponderance of testimony against the award, or where the proof is conflicting concerning it, will not justify its being set aside. Bennett v. Russell, 34 Miss. 524.

Next, the court committed error in overruling defendant's objection to the evidence as to the original merits of the controversy in favor of one party or the other on the issue to vacate the award of the arbitrators. Jenkins v. Meagher, et al., 46 Miss. 84. We submit that this alone is sufficient to reverse the decision of the chancellor in the case at bar. Mrs. Stewart was not unconscious at the time she transferred the note. Simonton v. Bacon, 49 Miss. 582. The case of Wherry et al. v. Latimer et al., 103 Miss. 534, holds: "The law presumes that every man is sane and honest; that all his acts are dictated by correct motives, and are the result of his own independent, intelligent, and unaided judgment. It also presumes that all his contracts are valid, and were entered into freely and voluntarily, in the exercise of an intelligent discretion. It never presumes dishonesty, mental incapacity, undue influence, or any other matter tending to vitiate a contract; but always requires proof of facts from which such dishonesty, mental incapacity, fraud, undue influence, or other matter may be reasonably inferred." In the case at bar we have the effect of the appellee to cancel the transfer of the notes to the appellant on the ground of mental incapacity of the appellee to execute the transfer, and the undue influence of her daughter, the appellant, and to reinvest the appellee with all rights under the note. In this case the burden was on the appellee to clearly establish by testimony, either the total mental incapacity of the appellee, or the undue influence of the appellant as to take away the free agency of the complainant. We submit that without a clear showing a decree should have been rendered in favor of the appellant, and we earnestly insist that the facts in this case did not warrant the findings of the chancellor, and that this case should be reversed and a decree rendered in favor of the appellant.

W. M. Everett, for appellee.

The main and only reliance the appellant has in this case to lean upon, is the award made by the arbitrators as shown both in the testimony and the papers introduced in the trial of this case. The questions of gift and fraud are questions too well settled by this court to admit of any argument in this case. There is no question but what the facts disclosed by this voluninous record, disclose a most painful and ugly situation, and show beyond peradventure of a doubt that the appellee, a woman who was sick both in body and mind was overreached by her near kindred. It was fraud of the most open kind. Counsel had a right to be present at the arbitration, or at...