Rhodes v. Folmar

• Decision Date: 26 October 1922
• Docket Number: 4 Div. 9.
• Citation: 94 So. 745,208 Ala. 595
• Parties: RHODES v. FOLMAR ET AL.
• Court: Alabama Supreme Court

94 So. 745

208 Ala. 595

RHODES v. FOLMAR ET AL.

4 Div. 9.

Supreme Court of Alabama

October 26, 1922

Rehearing Denied Dec. 14, 1922.

Appeal from Circuit Court, Pike County; A. B. Foster, Judge.

Action by Minnie Rhodes against F. P. Folmar, W. R. Sellers, and Freeman Paul, as arbitrators. From a judgment for defendants plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

W. E Griffin, of Troy, and Steiner, Crum & Weil, of Montgomery for appellant.

John H. Wilkerson, of Troy, for appellees.

THOMAS J.

The suit was for liquidated damages declared to exist by two of the three arbitrators pursuant to agreement. Issue being joined on the plea of the general issue to count 2 of the complaint, and the evidence being heard by the court without a jury, the judgment was for defendants. Among other things, the agreement contained the following provisions:

(1) "It is agreed to submit to three arbitrators the matter of the amount of permanent alimony upon decree of divorce to be paid to said Mrs. Minnie Edge by Dr. O. N. Edge in one sum as final settlement of all claims to alimony by her."

(2) "*** That each party shall select and name one of such arbitrators, and that these two shall agree upon and select the third arbitrator to act with them, and that a majority of said arbitrators shall control in making their award of alimony."

(5) "*** That each party shall be bound by the award of said arbitrators in the matter of such alimony according to the rules of law provided."

(6, 7, 8) "It is understood and agreed that all matters of suits, rights of litigation, pending or existing between the parties shall be and remain in statu quo pending this arbitration, and no rights waived or in any wise prejudiced upon a failure of the arbitrators to make an award;" that "upon a final determination of the arbitrators of the question of such alimony and the making of their award, that suits now pending and rights now obtaining shall be finally disposed of and settled between the parties and proper decrees or judgments entered. As soon as each initial arbitrator is appointed, and before he enters upon his duties as such, the party appointing him must turn over to him $1,037.50 to be applied as follows: $25 to be retained by such arbitrator as compensation for his services as such; $12.50 to be paid to the third arbitrator by each initial arbitrator as compensation for the third arbitrator's services as such; $1,000 to be placed to the credit of the three arbitrators in the First National Bank, Troy, Ala.; said $1,000 to be forfeited as liquidated damages to the other party by the party failing to comply with any of the terms of this agreement, of which the arbitrators shall be the sole judge. As soon as the arbitrators agree upon the amount of permanent alimony, one-half of same must at once be turned over to the register in equity at Troy, Ala., to be delivered to Mrs. Minnie Edge under the condition herein named. Thereupon Mrs. Minnie Edge must promptly file her bill for divorce, and, when the case is ready for submission for final decree, the other half of the permanent alimony must thereupon at once be turned over to said register in equity to be delivered to Mrs. Minnie Edge under the condition herein named. Then the case is to be submitted for decree of divorce. When the decree of divorce is signed, said register must at once deliver to Mrs. Edge the permanent alimony, and the arbitrators must return $1,000 to each party. Each party is to pay his own attorney's fees, and no application for attorney's fees must be made in the divorce bill. In case the divorce be denied, all moneys must thereupon at once be returned to the proper parties."

Provisions contained in paragraphs 9, 10, 11, and 12 are:

"In case Dr. Edge should fail to abide by any of the terms of this agreement, he must dismiss his suit now pending in the circuit court of Pike county against Mrs. Edge. In case Mrs. Edge fails to abide by any of the terms of this agreement, she waives all right to the monthly allowance of $50 now paid by Dr. Edge;" that, "before Dr. Edge pays over the second half of the permanent alimony, he must have complied with all previous orders and decrees of the circuit court of Pike county, Ala.; upon the rendering of the decree of divorce, all litigation with which the parties are in any way connected must cease and determine, the arbitration and divorce being considered a final adjudication and settlement of all matters in which the parties are interested directly or indirectly;" that "the attorneys for both parties must request in writing to the trial judge that, in the decree, both parties be allowed the privilege of marrying again, and the degree of divorce shall state the amount of alimony as fixed by the arbitrators."

This agreement is set out in hæc verba in count 2 of the complaint, and the concluding averment of the count is that the three parties named were selected as arbitrators and the money paid to them in accordance with the agreement; that the arbitrators (F. P. Folmar, W. R. Sellers, and Freeman Paul) made their award of permanent alimony; the decree of divorce was enrolled by the judge of the circuit in which the cause for divorce was pending, and in which it was decreed that the agreement in question did not constitute a collusive agreement for divorce, and was not an agreement for divorce; that there was, independent thereof, ample ground on which the decree for divorce was predicated; that "the plaintiff *** alleges that the $1,000 put up, under the agreement, by O. N. Edge, to be forfeited by him as liquidated damages to the other party to the agreement in case of his failing to comply with any of the terms of the agreement, of which the arbitrators were the sole judge, were forfeited as liquidated damages to the plaintiff, because it was, before the institution of this suit, and is the judgment of the arbitrators, or of a majority thereof, that said O. N. Edge did fail to comply with some of the terms of the agreement, and

did forfeit to this plaintiff said $1,000, which is *** claimed and has not been paid." The record fails to disclose whether or not the arbitrators were duly sworn before entering upon the discharge of their duty under the written agreement of submission. There was a unanimous award as to alimony as recited by the decree of court entered. The declaration of fact provided for by the contract of submission after the award, as to the $1,000 in question, was by two of the arbitrators, and in the following language:

"In the Matter of the Arbitration Agreement Between O. N. Edge and Minnie Rhodes, Formerly Minnie Edge, Troy, Ala., June 29, 1921. This being the time and place set for the meeting of the arbitrators in the foregoing matter, the following

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