Shroyer v. Barkley

• Decision Date: 31 January 1857
• Parties: SHROYER, Respondent, v. BARKLEY, Appellant.
• Court: Missouri Supreme Court

24 Mo. 346

SHROYER, Respondent,

v.BARKLEY, Appellant.

Supreme Court of Missouri.

January Term, 1857.

1. Where a party to a submission to arbitration failed to attend upon the arbitrators at the time and place appointed for the hearing of the matters submitted; held, that it was not error to refuse to vacate the award made upon a motion made under section 9, of the act concerning arbitrations (R. C. 1845, p. 121), the ground of which was that the failure to attend at the hearing was unavoidable by reason of the obstruction of the roads, caused by the rise of the water-courses.

Appeal from Saline Circuit Court.

Napton, for appellant.

I. The unavoidable absence of Barkley, after using due diligence, he having at the time a meritorious defense, comes within the spirit and meaning of the 9th section of the act concerning arbitrators.

II. If it does not, the court has the power and it is its duty to vacate an award rendered under such circumstances. This power is inherent in all courts, and the statute was not needed to give it, and will not be construed to take it away, unless the language be plain and unequivocal, and it admit of no other construction. (In the matter of Hick, 8 Taun. 794; Hollingsworth v. Lieper, 1 Dallas, 161; Chapman v. Hirwan, id. 187; Peters v. Newkirk, 6 Cow. 103; Falconer v. Montgomery, 4 Dall. 234; Bedington v. Suithwell, 4 Price, 232; 2 Chitty, 44; Salk. 71; Caldwell on Arb. 45, 118, 124, 210; Lutz v. Luthecum, 8 Pet. 178-9; Craig v. Hawkins, Harden, 46; Tonance et al. v. Amsden & Chapman, Tidd, 841; 3 McLean, 500, 515.)

III. If section 23 of our statute is to be understood as still reserving the right of action upon the arbitration bond and the award, and also the power of a court of chancery over these awards, as it existed in England, then it is manifest that in accordance with the authorities in England and this country the judge should not enter a judgment, but leave the parties to their respective remedies, if he entertained doubts about the question of diligence. (Tidd's Prac. 889.) But chancery has no jurisdiction, unless the grounds of relief are discovered after judgment on the award. (Waples v. Waples, 1 Harrington, 392.)

IV. It is manifestly the intent of our statute that the court which is called upon to vacate or to enter judgment upon an award, has all the powers which a court of equity would have in a distinct application. This was the English practice: where the application was made in due time under the statute, and the arbitration or submission was made a rule of court, every ground of relief in equity against an award was equally open in a court of law. (2 Tidd.)

Gardenhire, for respondent, cited R. C. 1845, p. 122, §§2, 9, 12; 7 Yerg. 239; 10 id. 202; 2 J. J. Marsh. 346; 2 Johns. Ch. 551; 1 Day, 153; 3 Rand. 122; 1 Wash. (Va.) 156, 11; 3 Harr. & McHen. 141; 7 Conn. 536; 2 Gall. 61; 1 Root, 197; 8 Greenl. 119, 288; 6 Pick. 148; 10 id. 348; 8 Mass. 410; 9 Mo. 29; 1 Ves. Ch. 365; 6 id. 282; 9 id. 365; 2 id. 15; 12 id. 412; 21 Pick. 417.

RYLAND, Judge, delivered the opinion of the court.

This was a submission of certain matters in chancery between the parties to the award of two persons chosen by them. The submission was in writing, dated 3d of July, 1854, and the award was to be made and published on or before the 1st day of October, 1855. The arbitrators fixed several different days and times for the hearing, which was postponed for good cause, until at last they fixed the 17th day of September, 1855, as the time for hearing and determining the matters. The court-house in Marshall, in the county of Saline, was the place of meeting. The parties were duly notified, and on the day and at the place Shroyer met the arbitrators, but Barkley did not. The arbitrators proceeded to hear and to decide the matters in the absence of Barkley, and made their award in writing agreeably to the terms of the submission. At the November term of the Circuit Court of Saline county, in 1855, the next term after the award was made, Shroyer produced the award and submission, and moved that a judgment of the court be made and had thereon, and Barkley appeared at the same term, and moved the court to vacate and set aside the award. Barkley stated five causes for his motion, and supported his motion by his affidavit. The court heard the motions of the parties and the testimony produced thereon for and against, and overruled Barkley's motion, and sustained Shroyer's motion, and made the award of the arbitrators a judgment of the court according to the terms of the submission. Barkley excepted, and brings the case here by appeal.

The principal ground relied upon by Barkley for vacating the award was his absence, and his alleged inability to meet the arbitrators at Marshall on the 17th September, 1855, on account of high waters. The second cause assigned for setting aside and vacating the award is as follows: “Because the award was obtained and made by undue means, in this, to-wit: that the said Barkley resided in Benton county, and at the time the award was made, and the hearing had before the arbitrators, he was prevented from attending the hearing by recent high waters and floods. He states that the creeks and water-courses were so high from rains that he could not possibly attend the hearing, and that there was an ex parte hearing had in his absence; that advantage was taken of his absence by the said Shroyer and the arbitrators; that if his part of the case had been presented and proved, no such award could have been given; that he could have produced evidence, and would have done so, to establish his accounts and to disprove those of the said Shroyer, but was prevented from doing so by the act of God aforesaid; that in order to have the case fully and fairly presented to them, it became and was the duty of the arbitrators to postpone the hearing to a further time, until the waters subsided, so that the said Barkley could attend; but the said Shroyer and the said arbitrators, well knowing the premises, proceeded in his absence and made up said award, which is unjust, and was procured as aforesaid by undue means.” There is nothing in any of the other causes assigned to vacate the award. The affidavit of Barkley is as follows: “Now at this day comes William D. Barkley, who makes oath and says that in a matter of dispute between this deponent and Presley Shroyer, wherein certain matters of difference were referred to the arbitrament of Edward Garnett and Randal Latimer; and, whereas, said arbitrators in the above cause, agreeably to a time fixed upon by themselves, to-wit: on the...