Shawhan v. Baker

• Decision Date: 11 November 1912
• Citation: 150 S.W. 1096,167 Mo. App. 25
• Parties: SHAWHAN v. BAKER.
• Court: Missouri Court of Appeals

150 S.W. 1096

167 Mo. A. 25

SHAWHAN v. BAKER.

Kansas City Court of Appeals. Missouri.

November 11, 1912.

1. ARBITRATION AND AWARD (§ 21)—AGREEMENTS TO ARBITRATE—EFFECT ON PENDING ACTION.

A submission to arbitration by a stipulation providing that the award might be made a rule of the circuit court and judgment entered thereon terminated ipso facto a pending action involving the same controversy.

2. ARBITRATION AND AWARD (§ 21) — MOTIONS TO CONFIRM—OPERATION AND EFFECT.

An action terminated by a submission of the controversy to arbitration is reinstated by a motion to confirm the award only for the purpose of such motion, and not so as to enable the court to adjudicate the controversy, if the award is vacated.

3. ARBITRATION AND AWARD (§ 78)—VACATION OF AWARD—VACATION OF ACTION.

Rev. St. 1909, § 877, authorizing awards to be set aside on motion for partiality or corruption on the part of an arbitrator, does not exclude the equitable remedy by action for the same relief which existed prior to the statute.

4. ARBITRATION AND AWARD (§ 21)—VACATION OF AWARD—GROUNDS.

Parties who have submitted a controversy to arbitration cannot invoke the aid of the court to correct errors that might be expected to characterize the judgments of judges untrained in the law.

5. ARBITRATION AND AWARD (§ 63)—VACATION OF AWARD—GROUNDS.

An award may be vacated where the arbitrators were corrupt or have exceeded or imperfectly exercised the powers conferred by the submission, but not because they were mistaken in their award.

6. ARBITRATION AND AWARD (§ 16)—VACATION OF AWARD—GROUNDS.

A submission to arbitration made a rule of court, cannot be rescinded by the parties, except in the cases in which the court by Rev. St. 1909, § 877, is authorized to vacate the award.

7. ARBITRATION AND AWARD (§ 72)—CONFIRMATION OF AWARD.

A motion to confirm an award of arbitrators should, upon proof that an action is pending in equity to vacate the award for partiality, be held in abeyance until the disposition of such action.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

Arbitration between George H. Shawhan and George H. Baker. From a judgment confirming an award in favor of Baker, Shawhan appeals. Reversed and remanded.

George W. Day, of Kansas City, and Wilson & Wilson, of Platte City, for appellant. Jas. H. Hull, of Platte City, for respondent.

JOHNSON, J.

The appeal in this case is prosecuted from `a judgment of the circuit court confirming the award of an arbitrator selected by the parties. Pending the appeal the plaintiff in the action, George H. Shawhan, died, and the cause was revived in the name of his executrix.

In November, 1908, Shawhan began an action against the defendant in the circuit court of Platte county, returnable to the December term. The petition alleged that plaintiff and defendant had been engaged as partners in the business of feeding cattle; that the partnership was dissolved by mutual consent in September, 1907; that defendant had been in the exclusive management and control of the business; that on the dissolution of the partnership defendant had rendered a statement of the business to plaintiff showing that he was indebted to plaintiff in the sum of $4,000, and had paid plaintiff said amount as in full settlement of plaintiff's share of the assets; that said statement was untrue, and that defendant was indebted to plaintiff in a large amount in excess of that shown by the statement.

Facts were alleged tending to show that plaintiff was unfamiliar with the affairs and books of the partnership, and that, taking advantage of his ignorance, defendant had purposely rendered a false statement with the intent to defraud him. The prayer of the petition' was for an accounting, for a judgment against defendant for the sum found to be due plaintiff, and "for such general relief as equity and good conscience, the facts considered, require." Defendant appeared at the return term, and filed a demurrer to the petition. The demurrer was sustained December 17, 1908, and plaintiff was given leave to file an amended petition in 30 days. The record does not disclose that an amended petition was filed. On January 30, 1909, the parties entered into a written stipulation, in which they agreed to arbitrate the differences between them arising out of the matters alleged in the petition. The gist of the stipulation is contained in the following excerpt: "Now, therefore, we, the said George H. Shawhan and George H. Baker, do hereby submit all matters in difference aforesaid to the arbitrament of J. W. Cox of Weston, Missouri; and if the said Cox shall refuse, fail or neglect to act as such arbitrator, then said differences are in like manner to be submitted to J. S. Morrin, as arbitrator; and whichever of said arbitrators shall act in the premises shall proceed without delay to hear the evidence offered by either party and to make up his award as soon as the same may be conveniently done, which shall be not later than March 1, 1909, and the said parties hereto do mutually agree to and with each other that they will stand to and abide by and faithfully keep and observe the award so to be made by the said arbitrator, in accordance with the statute in such cases made and provided: Provided, however, that upon the making of said award a copy thereof shall be served upon the parties hereto within five (5) days after the same has been made up. And we do further agree that the award of the arbitrator aforesaid, when made, may be made a rule of the circuit court of Platte county, Missouri, and that said court may enter up judgment upon said award in accordance with the terms thereof and of the statute in such cases made and provided. And as soon as may be after the execution of this agreement said Shawhan agrees to dismiss said action now pending in the circuit court aforesaid against said Baker."

Pursuant to this stipulation, plaintiff dismissed the suit March 9, 1909. Cox refused to serve as arbitrator, but Morrin, his alternate, accepted, took the necessary oath, heard the evidence offered by the respective parties, and on February 27, 1909, made and promulgated his award, which was in favor of defendant. The record does not show whether or not the arbitrator gave notice of his award as required by the stipulation, but for present purposes we shall assume that such notice was given, and that the proceedings leading to the award were regular. The award was filed in court March 9, 1909, the day on which plaintiff dismissed the action. A motion to confirm was not made at the March term of the court, which began" on the third Monday of that month, but such motion was filed at the following term, which began on the first Monday in August. Notice of the motion was given in accordance with the statute (section 876), and defendant appeared in response thereto. The motion asked that the cause which had been dismissed in accordance with the stipulation be reinstated on the docket, that the award be confirmed, and that judgment be rendered accordingly. Plaintiff filed no motion at the March term to vacate the award, and we shall assume that inasmuch as the award was published on February 27th, and the March term did not begin until the third Monday, he failed to avail himself of his statutory privilege of attacking the award by motion to vacate. Section 879, Rev. Stat. 1909. In the following June, and before defendant filed his motion to reinstate the cause and to confirm the award, plaintiff commenced a new suit in equity against defendant in the circuit court of Platte county, in which he attacked the award on the ground among others, that at the time of his acceptance of the office of arbitrator Morrin, unknown to plaintiff, was prejudiced against him, and therefore committed a fraud against him and against the administration of justice in assuming to act as judge of a cause while he was in a prejudiced state of mind. The prayer of the petition was that the award be set aside, that an accounting be made, that plaintiff should be awarded judgment for the amount found to be due him, and "for such general relief as equity and good conscience may require, the premises considered." This suit was sent to Buchanan county on change of venue, and was pending in the circuit court of that county when the motion of defendant for a confirmation of the award was filed and determined. At the hearing of that motion, plaintiff offered proof of the existence and nature of the second suit, but did not offer proof to sustain his charge of prejudice on the part of the arbitrator. The court sustained the motion, confirmed the award, and rendered judgment for defendant. From this judgment plaintiff appealed. There are other facts in the...