Waisner v. Waisner

• Decision Date: 15 April 1907
• Citation: 89 P. 580,15 Wyo. 420
• Parties: WAISNER ET AL. v. WAISNER
• Court: Wyoming Supreme Court

89 P. 580

15 Wyo. 420

WAISNER ET AL. v. WAISNER

Supreme Court of Wyoming

April 15, 1907

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

Action for the dissolution of a partnership between G. W. Waisner and W. E. Waisner, the plaintiffs, and J. A. Waisner, the defendant, an accounting, and a division of property and proceeds. Pending the suit, and after issues had been joined the parties submitted their matters of difference to arbitration. Upon the filing of the award exceptions to a part thereof were filed by defendant, and a petition and motion for its confirmation as to such part and judgment thereon was filed by the plaintiffs. The exceptions were sustained, and the court ordered that the property covered by the part of the award so objected to be sold and the proceeds divided. The plaintiffs prosecuted error. The material facts are stated in the opinion.

Affirmed.

M. B Camplin, for plaintiff in error.

The award of the arbitrators operated to discontinue the case and concluded the parties. (Gunter v. Sanchez, 1 Cal. 45; Brickhouse v. Hunter, 4 Am. Dec., 528; Perigo, &c., v. Grimes, 2 Colo. 651; Reeve v. Mitchell, 15 Ill. 297; Cunningham v. Craig, 53 Ill. 252; Moore v. Allen, 35 Me. 276; Dunn v. Sutliff, 1 Mich. 24; Vanderhoof v. Dean, id., 463; People v. C. P., 1 Wend., 314; Larkin v. Robbin, 2 Wend., 505; West v. Stanley, 1 Hill., 69; Bank v. Widner, 11 Paige, 523; Jordan v. Hyatt, 3 Barb., 275; Resequie v. Brownson, 4 Barb., 541; Buel v. Dewey, 22 How. Pr., 342; McNulty v. Solley, 95 N.Y. 242; Jewell v. Blankenship, 18 Tenn. 439; Snodderly v. Weaver, 41 Tenn. 255; Babcock v. School Dist., 35 Vt. 250; Mackey v. Pierce, 3 Wis. 307; Walworth v. Farmers, 22 Wis. 231; Bowen v. Lazalere, 44 Mo. 383.) Even if the agreement be void that judgment be entered. (Keep v. Keep, 17 Hun, 152.) In equity as well as at law. (Saffle v. Cox, 28 Tenn. 142.) And though discontinuance be not expressly directed. (Rixford v. Nye, 20 Vt. 132; Dolph v. Clemens, 4 Wis. 181; 1 Ency. L., 661.) If not made a rule of court the arbitration statutes do not apply, and the court then has no jurisdiction on motion. (Ins. Co. v. Mer. Co., 44 F. 151; In re Di Carlo, 59 Hun, 360; Cunningham v. Craig, 53 Ill. 252; Kriess v. Hotaling, 96 Cal. 617; Fink v. Fink, 8 Iowa 313; Burroughs v. David. 7 Iowa 155.) Unless the award is under a submission by rule of court, or within the jurisdiction of the court by statute, it cannot be vacated on motion; the remedy is an action. (Morse on Arbitration, 612; Muldrow v. Norris, 2 Cal. 74.)

Defendant's exceptions were not verified, and were insufficient on their face if the award was statutory. (R. S. 1899, Sec. 4078.) Neither the pleadings, the arbitration agreement nor the award disclosed any dispute about title to real estate. The partners had but an equity at best, for it all stood for the payment of debts. (17 Ency. L., 964.) The award of chattels vested the property at once--but an award of land does not vest title. It acts merely as an estoppel to prevent setting up title. (6 Lawson's Rights, &c., 3392, 3393; 1 Ency. L., 713.) The partnership real estate is to be treated as personal property. (17 Ency. L., 952-958.) Matters concerning real estate may be submitted to arbitration. (1 Ency. L., 658, 659; 2 id. (2d Ed.), 559; Morse on Arbitration, 54; Caldwell on Arbitration, 3; Rights, Rem. and Pr. (Lawson), Sec. 3305; Blair v. Wallace, 21 Cal. 313; Cox v. Jagger, 2 Cow., 649 (14 Am. Dec., 532); Penniman v. Rodman, 13 Metc., 382; Wiles v. Peck, 26 N.Y. 42; Olcott v. Wood, 14 N.Y. 32; Jackson v. Ambler, 14 Johns., 109; Meyers v. Easterwood, 60 Tex. 107; Akely v. Akely, 16 Vt. 450; Blanchard v. Murray, 15 Vt. 548; Merritt v. Merritt, 11 Ill. 565; Byers v. Van Dusen, 5 Wend., 268; Williams v. Warren, 21 Ill. 541; McMillan v. James, 105 Ill. 194; Coxe v. Lundy, 1 N.J.L. 255; Farris v. Caperton, 38 Tenn. 606; Shackelford v. Purkett, 9 Ky. 435 (12 Am. Dec., 422); Carey v. Wilcox, 6 N. H., 177; Finley v. Funk, 12 P. 15.) Our own constitution does not contemplate any limitation on subject matter which may be submitted to arbitration; or contemplate any reservations or exceptions whatever. (Art. 19, Sec. 1.)

It is true that it provides that the arbitrators shall have such powers and duties as may be prescribed by law. But the powers of the arbitrators is a different proposition from the power given to the parties to submit. Questions as to legal title are not involved in the case at bar. But the universal holding is that unless there be submitted an actual dispute about the legal title to real estate, the statutory inhibition has no application. (Blair v. Wallace, 21 Cal. 317.) The pleadings show ownership of lands, leaseholds and personal property; the submission provides for the arbitrators to take up such matters and make division of them; the award does so; the whole proceedings show a winding up of partnership affairs, and a division of the property. Hence there is no legal defect in the award or arbitration proceedings. (Masters v. Gardner, 5 Jones L. (N. C.), 298.) The court, therefore, erred in sustaining the objections and exceptions or any part thereof, and in vacating and setting aside the said award or any part thereof, and in not considering the award as a settlement and adjustment of the matters set forth in the pleadings.

When the court overruled the plaintiff's objection to jurisdiction, and indicated its purpose to consider the exceptions, the plaintiffs, thereupon, in view of said ruling, filed their petition for judgment on said award; and included in it an answer of estoppel to defendant's exceptions duly verified. The court made no direction as required in Section 4078, but the defendant proceeded with his evidence under the direction of the court, against the protest of plaintiffs, they contending that no evidence could be received under defendant's objections; that none could be received to vary the terms of the award.

The land held by defendant was not his individual property, but was a part of the capital stock of the firm. (Fidler v. Cooper, 19 Wend., 285; Cutler v. Whitmore, 10 Mass. 442.) The evidence as to ownership was all incompetent because not within the exceptions. The defendant was estopped both by the record and his conduct from denying the legality of the award.

Though an award be voidable, it may be ratified, and when once ratified it cannot afterwards be objected to. The defendant ratified the award here by accepting its benefits. (1 Ency. L., 714; Thompson v. Blanchard, 2 Iowa 44; McRea v. Buck, 2 S. & P., 155; Reynolds v. Roebuck, 37 Ala. 408; Miller v. Brumbaugh, 7 Kan. 343; Callant v. Downey, 2 J. J. Marsh., 346; Johnson v. Ketchum, 4 N.J. Eq. 364; DeCastro v. Brett, 59 How. Pr., 484; Sharp v. King, 3 Ired. Eq., 402; Pike v. Stalling, 71 Ga. 860; Neel v. Neel, 72 Ga. 201; Grimmitt v. Smith, 42 Ill.App. 577; Sisson v. Baltimore, 51 Md. 83; Culver v. Ashley, 19 Pick., 300; Furber v. Chamberlain, 29 N. H., 405; Taylor v. R. Co., 57 Vt. 106; Leslie v. Leslie, 50 N.J. Eq. 155.) An award under an agreement for arbitration is an entirety, so that a party to the agreement cannot accept the benefits of a part of the award, and complain of the illegality of another part. (Thornton v. McCormick, 75 Iowa 285.) An award of arbitrators, when acquiesced in by both parties, has as to them the effect of a final judgment. (Penniston v. Somers, 15 La. Ann., 679; Tyler v. Stephens, 7 Ga. 278; 68 id., 534; 95 id., 752; Burrows v. Guthrie, 61 Ill. 70.) Even if void, if the party accepts and retains its fruits. (Irr. Co. v. Middaugh, 21 P. 565; D. Co. v. D. Co., 43 P. 540; Arthur v. Israel, 25 P. 81; Muldoon v. R. Co., 38 P. 995.) So even if the award was invalid, the defendant was estopped to deny its validity; and the court erred in not sustaining the estoppel, and in not giving plaintiffs judgment on the award. The award was not justly divisible. The statute (Sec. 4078) does not give the court power to set aside and award by piecemeal. But if it finds the award void, to set it aside. If the award was to be set aside at all, the facts in this case show the wisdom of the law, in requiring it to be set aside in toto and retaining the matters submitted for trial. (Morse on Arb., 330; Smith v. Cutler, 10 Wend., 589; 12 O. Dec., 27; 1 Ency. L., 711.) The court can only set aside an award when and as authorized by statute.

Burgess & Kutcher, also for plaintiffs in error, argued and contended that by accepting the part of the award favorable to him the defendant is estopped from now questioning any part; and that this is so even if the statute applies forbidding the arbitration of questions affecting real estate, since it is impossible to place the parties in their original relative positions. That the division of the land only was submitted to arbitration, without any dispute respecting titles, and in support of the contention counsel cited 3 Cyc., 719 (note 20), 720; Thornton v. McCormick (Ia.), 30 N.W. 502; Wiles v. Peck, 26 N.Y. 42; State v. Gurnee, 14 Kan. 111; Matter of Peaslee, 73 Hun, 113; Ferguson v. Landram, 96 Am. Dec., 350; Daniels v. Tierney, 102 U.S. 421; Fry v. Morrison, 159 Ill. 244; Keller v. Stanley, 86 Ky. 240; Hainer v. Iowa, &c., 78 Iowa 252; Smith v. Guild, 34 Mo. 443; 26 Ency. L. (2d Ed.), 50, 56; 29 id., 832; Beach Mod. Eq. Jur., 618.

Counsel further argued that since the arbitration was for the sole purpose of winding up the entire partnership business, and dividing its assets, the submission and the award were each an entirety; that it cannot be assumed there would have been a submission with the real estate omitted, and that in fact the parties did not agree by the arbitration to settle only part of the firm business. That to permit of the separation of...