Tucker v. Allen

• Decision Date: 31 March 1871
• Parties: CHARLES L. TUCKER, Appellant, v. GERARD B. ALLEN et al., Respondents.
• Court: Missouri Supreme Court

47 Mo. 488

CHARLES L. TUCKER, Appellant,

v.GERARD B. ALLEN et al., Respondents.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Slayback & Haeussler, for appellant.

I. Arbitrators could not become such without taking the oath. “Arbitrators not sworn can make no award that is binding and valid as a statutory award.” (Walt v. Huse, 38 Mo. 210-13, confirming 18 Mo. 399, and modifying and reviewing 28 Mo. 166; 10 Mo. 161; Fassett v. Fassett, 41 Mo. 516.)

II. The award was not signed by the arbitrators.

III. The award was not attested.

Krum & Decker, for respondents.

I. The arbitrator's oath in the case at bar could be waived. (Childs' Ex'r v. Updyke, 9 Ohio, 336; Wood v. Page, 37 Verm. 254; Tombs v. Richmond & Lynchburg R.R., 18 Barb. 583; Valle v. North Missouri R.R., 37 Mo. 445.)

II. The objection is technical, and even if this were a proceeding by motion (which it is not) the court, if the award were filed in the court, would allow the attestation at any time. (Newman v. Labeaume, 9 Mo. 31.)

CURRIER, Judge, delivered the opinion of the court.

The plaintiff sues to recover damages for various alleged breaches of a contract which is set out in the petition. The defendants, among other grounds of defense, plead in bar of the suit an award alleged to have been made in pursuance of a written submission to arbitration of the matters for which this suit is brought. At the trial the award was presented and read in evidence without objection as to its attestation or want of a proper attestation. It appeared in evidence, however, that the attestation upon the award was made after the award was promulgated, and after the overruling of a motion for its affirmance in the Circuit Court. On this subject the plaintiff asked an instruction to the effect that the award was to be treated as invalid in case the jury found from the evidence that it was not attested till after this suit was brought, and after a motion to confirm it had been overruled. The instruction was refused, and the plaintiff complains of the action of the court in that respect as erroneous.

The statute (§ 6) provides that awards enforceable by motion, as contemplated by the seventh section of the act, should be attested by a subscribing witness. The non-attestation, however, at the time of promulgation, does not necessarily vitiate the award. The attestation is a formality that may be supplied at a future period. It has been so held repeatedly. (Newman v. Labeaume, 9 Mo. 29; Field v. Oliver, 43 Mo. 200.) The objection here is not that the award was not attested, but that the attestation came too late. The instruction is founded upon that idea. It was, I think--and for the reasons already suggested--properly refused. The decisions above referred to show that the attestation may be supplied after the delivery of the award. This court has in fact gone further than that, and pointedly held that no attestation is necessary for the purpose of suing on the award, where the submission did not provide for a confirmation under the statute. It was so decided in Valle v. North Missouri R.R., 37 Mo. 445. The judge delivering the opinion in that case says: “This (the attestation) is not made necessary under our statute unless the submission provides that it shall be made the judgment of the Circuit Court and enforced according to the provisions of the statute.” The point was distinctly made and was distinctly passed upon. The award in that case was made in pursuance of a written submission, and so under the statute. It was never attested, and was objected to on that ground. But the court held that an attestation was not necessary for the purpose of maintaining a suit upon the award. A large judgment upon the award was accordingly affirmed.

It may be remarked in this connection that courts have ever been disposed to encourage the settlement of difficulties by arbitration. The proceedings in such cases are regarded with favor and construed with liberality. Awards have very rarely been overturned on the ground of the non-observance of unimportant formalities. Our statute was plainly designed to encourage the adjustment of differences between parties by arbitration, by providing a summary mode of enforcing awards. And the statute not only makes provision for enforcing awards when regularly made, but also for setting them aside in a summary way when good cause can be shown for doing so. An award may be vacated, on motion, for any kind of “misbehavior” on the part of arbitrators whereby the rights of either party have been prejudiced. So it may be vacated where the arbitrators either exceeded their powers, or so imperfectly executed them that a “mutual, final and definite award on the subject (of submission) was not made” (§ 9). When parties submit a controversy to arbitration, and an award is made, ought not the party dissatisfied with the result, and who does not propose to abide by it, to move the court to vacate it in some reasonable time? Can he lie by indefinitely, and then, when sued, avail himself of...