Temple v. Riverland Co.

• Decision Date: 02 March 1921
• Docket Number: (No. 1766.)
• Citation: 228 S.W. 605
• Parties: TEMPLE et al. v. RIVERLAND CO.
• Court: Texas Court of Appeals

Page 605

228 S.W. 605

TEMPLE et al. v. RIVERLAND CO.

(No. 1766.)

Court of Civil Appeals of Texas. Amarillo.

March 2, 1921.

Appeal from District Court, Wichita County; Edgar Scurry, Judge.

Motion by the Riverland Company for judgment on award of arbitrators, opposed by H. H. Temple and another. From a judgment in favor of plaintiff, the defendants appeal. Affirmed.

Aynesworth & Williams, of Wichita Falls, for appellants.

Bullington, Boone, Humphrey & Hoffman, of Wichita Falls, for appellee.

HUFF, C. J.

On the 10th day of November, 1919, the Riverland Company, a corporation, incorporated under the laws of the state of Delaware, entered into an agreement with H. H. Temple and S. V. White, the appellants herein. The agreement recited that the parties hereto have a disagreement existing between them as to the meaning and interpretation of a certain written contract, relating to certain oil and gas leases in Wichita county, Tex., etc., and for the purpose of a complete settlement the parties now denominating themselves plaintiff and defendant, agree to arbitrate their differences and matters in dispute, and they name for the Riverland Company John C. Kay, of Wichita Falls, and the other party named, A. H. Britain, of Wichita Falls. After reciting the age and qualification of the arbitrators, they make the following:

"And the parties agree that they will abide by in all things the findings of said arbitrators, and this agreement shall be filed with the clerk of the district court of Wichita county, Tex., in accordance with the statutes of Texas governing arbitration."

On the 10th day of February the arbitrators rendered an award, reciting the making of the agreement and also that the arbitrators had been duly sworn on the 10th day of November, A. D. 1919, but for good and sufficient reasons they postponed the hearing until the 10th day of February, A. D. 1920; that the plaintiff appeared by its vice president, S. V. White, and by its counsel, and the defendants appeared in person, and by their counsel. Then that said arbitrators having heard the allegations and proof of the parties, all of which were duly submitted to them, and it appearing from the agreement, etc., they then proceeded to recite their findings and further recited:

"We, therefore, find that the defendants, H. H. Temple and S. V. White, shall pay to the Riverland Company the said sum of $22,260. The cost in this behalf incurred shall be paid one-half by each of the parties thereto. This judgment is here now certified to the district court of Wichita county, Tex., under the laws of this state in such cases made and provided, relative to arbitrators."

The award is dated the 10th day of February, 1920. The Riverland Company made its motion for judgment on the award in the district court of Wichita county, the Seventy-Eighth district, attaching thereto the agreement and award, asking that the court enter the judgment as the law directs. This motion appears to have been filed March 1, 1920. The defendants filed an instrument in the nature of a protest, alleging that in the matter above set out the Riverland Company are the plaintiffs and that these defendants are the defendants; that the plaintiff is a foreign corporation; that it had no permit to do business in the state of Texas; that it has not filed a copy of its articles of incorporation with the Secretary of State of the state of Texas; that it is by means of this suit seeking to enforce the cause of action in the courts of the state of Texas, which grew out of business transacted wholly within the state of Texas, and no part thereof is interstate commerce; that by virtue of the law it is not permitted to bring this suit or maintain the same after it has been brought, either in the main suit seeking to enforce the award of the arbitrators, or by way of garnishment or other ancillary action and of this prayed the judgment of the court.

At the request of the defendants the trial court made findings of fact, setting out the agreement and the award heretofore mentioned, and he finds that the agreement to arbitrate was not filed with the clerk of the district court until after the rendition and making of the award, nor did the clerk of the district court have anything to do with said arbitration other than the filing with him the agreement to arbitrate and the award of the arbitration, which was done several days after the award was made; that the Riverland Company, about the 15th day of February, 1920, filed the arbitration agreement and award thereon, with the clerk of the district court of Wichita county, Tex., and made due and proper motion in this court that said award should be entered as a judgment of the court. He sets up the answer of the defendants therein as heretofore stated. He finds as a fact that the Riverland Company is a foreign corporation, organized under the laws of the state of Delaware, and with no permit to do business in Texas prior to the 26th day of February, 1920; that the subject-matter of the award and all money awarded by the arbitrators, as more fully set out in the contract and award, arose wholly out of business transactions conducted by and between plaintiffs and the defendants under the contract in question, in Texas; that the arbitrators were duly sworn as such arbitrators prior to the time they sat as such, etc. Judgment was entered on the 3d day of April, 1920, setting out the motion for judgment, the agreement to arbitrate, and the award of the arbitrators, and concluding the judgment in the ordinary form for the amount, in favor of the Riverland Company, against H. H. Temple and S. V. White. It is from this judgment that the appellants appeal.

We will notice first the third assignment, which asserts that the trial court erred in holding the arbitration agreement and award thereunder statutory. This appears to be based upon the finding of the court that the agreement was not filed until after the award.

The recitation in the contract that it should be filed with the clerk of the court in accordance with the statutes, showing on its face it was to be an arbitration and the award also showed it was made with reference to the laws of this state, relative to arbitration, clearly evidenced the purposes of the parties thereto to make a statutory arbitration as distinguished from a common-law agreement. They make the statutory law with reference to arbitration part of their agreement, and we may regard it as if the statutes were incorporated therein. Tennessee Coal Co. v. Roussell, 155 Ala. 435, 46 South. 866, 130 Am. St. Rep. 56. The fact that the agreement was not filed with the clerk before the award was a matter which could be waived. The arbitrators were sworn, set the hearing, and all the parties appeared before them without any objection appearing either then or afterwards that the agreement had not been filed. Articles 58 and 59, R. C. S., provide that the agreement shall be filed with the clerk, but these matters of procedure may be waived. There was no exception in the court below on the ground stated. The appellate court will presume the matter was waived. Alexander v. Mulhall, 1 U. C. 764; Hall v. Morris, 30 Tex. 280; Hooper v. Brinson, 2 Tex. 185; McHugh v. Peck, 29 Tex. 141.

Our courts from an early day have not applied a strict construction to the statutes authorizing arbitration. "To apply such a construction to the `act to authorize a settlement of disputes by conciliation or arbitration,' would not be in accordance with any principles heretofore applied in the construction of civil proceedings and remedies in general. Certainly it would not be in harmony with the declared opinion of this court, that `the objects to be effected by the act, invoke a liberal construction of its provisions.' 2 Texas, 47, 3 Id. 164." Forshey v. Railway Co., 16 Tex. 516, 527. We therefore conclude the parties proceeded under the statute to adjust their differences by arbitration. It will be well to keep in mind the difference between a common-law and statutory arbitration with reference to enforcing the award. On the former, a suit may be required on the award to establish it and secure a judgment, in a regular proceeding for that purpose. Upon the latter the agreement and the award is to be filed by the arbitrators with the clerk, and at the succeeding term of the court "such award shall be entered and recorded as the judgment of the court." Article 63. The court, in entering the award, performs no judicial function in pronouncing judgment or in determining the rights of the parties. The entry is purely a ministerial act which the law commands as a duty. Article 65 provides if a right of appeal is not expressly reserved in the original agreement to arbitrate, no such right shall exist, "but the decision of the arbitrators shall be final." This article further provides if the right was so reserved and either party files his application with the clerk, he may appeal. When such appeal is taken it is noted on the docket of the court and the opposite party is served with citations in ordinary cases of suit by petition. After service the case stands for trial de novo, as in ordinary cases. Article 66. From a judgment rendered on such proceeding, we presume an appeal could be taken as in other cases. Eubank v. Bostick, 194 S. W. 214; State v. Haldeman, 163 S. W. 1020; Shultz v. Lempert, 55 Tex. 273. If no right of appeal is reserved and if the agreement is in substantial compliance with the statute, then the award will, on motion, be made the judgment of the court, unless it is impeached on equitable grounds for fraud, or the like. Payne v. Metz, 14 Tex. 56; Forshey v. Railway Co., 16 Tex. 517. In the latter case, upon rehearing Judge Wheeler said, at page 540:

"The award is not a proceeding to bring a cause into the district court for trial; it is the result of a trial had before arbitrators. It is res adjudicata by the judgment of the arbitrators; and unless an...