Thrasher v. Overby

• Decision Date: 31 January 1874
• Citation: 51 Ga. 91
• Parties: Early W. Thrasher, plaintiff in error. v. Barton H. Overby et al., defendants in error.
• Court: Georgia Supreme Court

51 Ga. 91

Early W. Thrasher, plaintiff in error. v. Barton H. Overby et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Award. Evidence. Jury. Practice in the Superior Court. Before Judge Bartlett. Morgan Superior Court. September Adjourned term, 1873.

This is the second time this case has been before the supreme court: See 47 Georgia Reports 10.

Barton H. and Nicholas Overby filed their bill against Early W. Thrasher for the specific performance of an award, alleged to have been rendered upon an arbitration between them. Thedefendant pleaded, as objections to the decree prayed for, that the award was contrary to the evidence, fraud in one of the arbitrators, and mistake in all, setting forth what he claimed to be was all the evidence produced. Upon reading this testimony, he moved the court to set aside the award, upon the ground that it was contrary to the evidence. Complainants insisted that there were two pieces of documentary evidence before the arbi-trators not set forth in defendant\'s *brief of the testimony. This the defendant denied. The court caused evidence to be introduced before it upon this point, and held with the complainants. The defendant then amended his plea by alleging that, such documentary evidence was before said arbitrators without his knowledge or consent, and prayed that the award might be set aside on that ground. The court held that this presented a question which it alone could determine, and refused to allow the issue to be submitted to a jury. This branch of the case was also decided against defendant.

The jury found for the complainants. The defendant moved for a new trial upon several grounds, and amongst them, because the court erred in refusing to submit the question as to said documentary evidence having been before the arbitrators, to the jury, and because the verdict was contrary to the evidence. The motion was overruled, and defendant excepted.

For the remaining facts, see the opinion.

Thrasher & Thrasher; Billups & Brobston, for plaintiff in error.

A. G. & F. C. Foster, for defendant.

McCay, Judge.

1. When a submission and an award, and the evidence on which the award was made, are before a court, it is simply a question of law whether the award is or is not legal. But if there be a dispute as to what was the proof, it is obviously a question of fact to determine which is right. We think, therefore, the judge, in this case, should have left it to the jury to...