Walker v. Walker
| Decision Date | 31 March 1859 |
| Citation | 28 Ga. 140 |
| Parties | WALKER. vs. WALKER. |
| Court | Georgia Supreme Court |
Arbitration and Award, in Upson superior court. Decision by Judge Cabaniss, at May adjourned Term, 1858.
James S. Walker and others, children and heirs at law of William W. Walker, deceased, filed their bill in equity against Nathaniel F. Walker, as executor of Allen M. Walker, deceased, and in his own right, for an account and settlement of the estate of their father which came into the hands of said Allen M. Walker, as administrator of said William W. Walker, deceased, and who was also the guardian of complainants, during their minority.
Pending this cause in the superior court of Upson county, the parties entered into the following agreement to submit the case to arbitration, viz:
Whereas, a matter of controversy is pending in equity in Upson superior court, between James S. Walker, Free-man "Walker and Frances C. Walker, complainants, and Nathaniel F. Walker, in his individual capacity, and also as the executor of the nuncupative will of Allen M. Walker, deceased, though not yet made a party defendant, which involves questions of law and fact; the latter to be ascertained by lengthy calculations, and the parties believing that the same can be settled more correctly by submitting them to arbitrators chosen by the parties, than by submitting said cause to a jury, do hereby enter into the following agreement: The parties agree to submit the case made by the bill, answer and replication filed, in said cause, in its totality, to two arbitrators to be chosen by the parties, and that the parties shall have the right to adduce all legal proofs pertinent to all the issues made as though the cause were on trial before a court and jury.
The pleadings in said case if not complete, shall be made so with all convenient dispatch, and if the defendant should desire to file a cross bill he shall do so with as little delay as possible, and the complainants shall as soon as practicable file their answer thereto, and the same shall go to the arbitrators, with the other pleadings in the cause.
The parties agree that Thomas P. Stubbs, Esq., shall be the arbitrator selected by the complainants, and Washington Poe, Esq., shall serve, as the arbitrator chosen by defendant, and that these two shall have the power of selecting an umpire to decide all questions of law and fact, upon which they may not be able to agree. The parties hereby further agree that Joel Mathews, Esq., of the county of Upson, shall act as commissioner, to take testimony in said cause, to be used before the arbitrators. The party desiring to take the testimony of a witness shall make out written interrogatories and file the same, with the commissioner giving the adverse party notice thereof, together with a copy of said interrogatories, (unless copy and notice should be waived) on the day of filing.
Notice shall also be given of the time and place of the examination of the witnesses, which shall be at least ten days from the time of filing the interrogatories with the commissioner.
Each party shall be allowed by himself or attorney to be present at the execution of the interrogatories, and shall be allowed to suggest other questions to the commissioner. The answers shall be sworn to and taken down in writing by the commissioner, signed by the witnesses and attested by the commissioner, and the whole being sealed up shall be directed to the arbitrators, by whom they shall be opened under such rules as they may adopt.
The arbitrators shall sit at Thomaston, Georgia, after giving the parties ten days notice of the time of such meeting, and shall proceed to try said cause upon the evidence submitted to them. There shall be no continuance except for providential cause, except in the sound discretion of the arbitrators. The rules of practice as to argument of counsel, which obtain in the courts shall be observed.
The parties having closed, the arbitrators, assisted if need be, by an umpire chosen as aforesaid, shall proceed to make an award within thirty days after the cause is finally submitted to them, which shall be binding except for fraud.
The parties agree that the award shall be entered upon the minutes of Upson superior court, and at the November Term, 1856, if possible, and that judgment shall be entered up for the sum awarded, and that the costs in said cause shall be paid under and according to said award.
When the agreement shall bo signed by the parties, and the arbitrators shall have accepted the trust, the power hereby conferred upon them, shall be considered irrevocable. And if after their acceptance, either arbitrator, from providential cause, be unable to discharge the dutiesof the trust, the party whose arbitrator shall become thus unable, shall within twenty days from the happening of such providential cause, choose another arbitrator to act in his place, and in default of such choice the remaining arbitrator shall have the power to fill such vacancy. The parties shall proceed to make up the testimony, and to prepare the case for trial at as early a day as practicable, and shall by the twentieth day of October next notify the arbitrators of their readiness to proceed with the trial, (unless providentially hindered,) and the parties and arbitrators shall so direct the case as to have the award ready to be entered on the minutes of Upson superior court at the term heretofore specified, if possible.
The bill filed in said cause was filed by complainants against Jesse L. Owen as the executor of the estate of Allen M. Walker, deceased, and the said Nathaniel F. Walker, and the said Jesse L. having departed this life, and the said Nathaniel F. having been qualified as executor of said estate, but not yet made a party, it is agreed by the parties that the said Nathaniel F. shall be bound in his representative capacity by said award as though he had been made a party to said bill. To be signed before binding, by the parties themselves.
August 16th, 1856.
O. C. GIBSON, Def'ts Attorney.
J. M. SMITH, Comp's Attorney.
Signed by the parties 9th Sept. 1856.
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|Attest, |JAMES S. WALKER. |
|-------------------|-----------------|
|J. M. SMITH. |FREEMAN WALKER. |
|-------------------|-----------------|
| |FANNIE C. WALKER.|
|-------------------|-----------------|
|N. F. WALKER, Ex'r.| |
|-------------------|-----------------|
|N. F. WALKER. | |
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Under this submission the arbitrators made the following award:
Macon, Ga., January 7th, 1857.
We, the arbitrators to whom was referred the matterof difference between the parties set forth in the above submission, after hearing all the testimony on both sides, and after argument of counsel being fully had, find and award as follows, to-wit:
1. We find that no sufficient proof has been submitted to us, to authorize or justify us in charging defendant with the value of the two lots of laud, lying somewhere in south-western Georgia, (the numbers and other description not given,) and the proof as to the value, being, in our opinion, vague and indefinite; therefore as to said two lots of land, we find and award in favor of defendant.
2. As to the hire of Hannah and her children, that question or matter having, on motion of defendant's counsel, been stricken out from the bill, we ratify and reaffirm our judgment as to said Hannah and her children, and now refer to the same.
As to all other matters submitted to us, (except as to the amount of money on hand at the death of William W. Walker, and as to which, we have called in the Hon. Eugenius A. Nisbet, as umpire,) we find and award as follows:
1st. We find and award in favor of the complainant, James s. Walker, the sum of ($20,629 19,) twenty thousand six hundred and twenty-nine dollars and nineteen cents, with interest thereon from the first day of January, 1857.
2d. We find in favor of the complainant, Nathaniel Freeman Walker the sum of ($20,585 48,) twenty thousand five hundred and eighty-five dollars and forty-eight cents, with interest thereon from the first day of January, 1857.
3d. We find and award in favor of complainant, Frances Charity Walker, (who sues by her guardian, Thomas W. Goode,) the sum of fourteen thousand, nine hundred and forty-eight dollars and ninety-seven cents, ($14,948 97,) with interest thereon, from the first day of January, 1857, with costs of suit in this cause, to be levied of the goods and chattels, rights and. credits, lands and. tenements in the hands of the legal representative, (the defendant,) of Allen M. Walker, to be by him administered. Here the arbitrators called in the Honorable Eugenius A. Nesbit, as umpire in the cause, and adjourned the further proceeding of this cause until Saturday next, at 12 o\'clock, M., this 7th January, 1857.
THOMAS P. STUBBS, Arbitrator.
WASHINGTON POE, Arbitrator.
Macon, Ga., 10th January, 1857.
The arbitrators having differed and disagreed as to the amount of money on hand at the death of William W. Walker, which came to the hands of Allen M. Walker, as his administrator:
The said Washington Poe being of opinion that there was no sufficient evidence submitted to them to authorize or justify the arbitrators in charging defendant with a greater amount of cash on hand than is returned by Allen M. Walker, to-wit: $3,200, and Thomas P. Stubbs differing in opinion with him, they unite and agree in calling in the Hon. Eugenius A. Nesbit, as umpire, and on this day after due notice to counsel on both sides met at 12 o'clock, M., at Macon, at the office of Stubbs, Hill & Tracy, according to adjournment, and said Nesbit being present and consenting to act as umpire, and after argument and a careful review of all the testimony taken in the cause, the said Eugenius A. Nesbit and said Thomas P. Stubbs, find the sum, after deducting one-fourth of the award shown to be...
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