Walt v. Huse

• Decision Date: 31 March 1866
• Citation: 38 Mo. 210
• Parties: RUFUS P. WALT, et al., Respondents, v. WILLIAM L. HUSE, et al., Appellants.
• Court: Missouri Supreme Court

38 Mo. 210

RUFUS P. WALT, et al., Respondents,

v.WILLIAM L. HUSE, et al., Appellants.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Court of Common Pleas.

Davis, Evans & Davis, for appellants.

The arbitrators ought to have been sworn before hearing the evidence touching the matters in controversy; and because they were not so sworn, the award is void, or at least voidable--R. C. 1855, ch. 7, § 3, p. 194; Toler d. Hayden, 18 Mo. 399; Garrett v. Maney et al., 10 Mo. 161. The case of Hamlin v. Duke, 28 Mo. 166, does not militate against the above doctrine, nor does the case of Pearce v. McIntyre, 19 Mo. 423.

Knight, for respondents.

It was unnecessary that the arbitrators should be sworn. This is not a statutory award. It is good as a common law award--French v. New, 20 Barb. 481; Howard v. Saxton, 1 Denio, 440; Howard v. Saxton, 4 Comst., N. Y., 157; Purdy v. Delevan, 1 Cains, 303-14.

Unless the submission provides for a summary judgment, or otherwise refers to the statute, it will not be held to be a statutory award--Kingston v. Kincaid, 1 Wash. (C. C.) R. 448; Finley v. Finley, 11 Mo. 624.

Irregularities are waived unless objected to by the parties at the time--24 Wend. 258; 2 N. Y. Leg. Ob. 389; 10 Johns, 143; Caldwell Arbitration, 208 et seq.

Common law awards have been fully sustained by this court, even to the extent of holding verbal submissions and awards valid--Hamlin v. Duke, 28 Mo. 166; Pearce v. McIntyre, 29 Mo. 423; 11 Mo. 624.

The case of Currier v. Lowe, 32 Mo. 203, is conclusive on this point.

WAGNER, Judge, delivered the opinion of the court.

This was a suit brought by the respondents against the appellants, on an award made by John W. Luke and John J. Roe, to whom the matters and differences in controversy between the parties had been submitted as arbitrators. The submission was in writing, and the arbitrators proceeded to hear and examine the testimony in the cause, and to make out their written award; but they were not sworn. No provision was made by the parties in the submission for entering up a judgment of court on the award in pursuance of the statute. The court below rendered judgment for the respondents for the full amount of the award, the appellants resisting it mainly on the ground that the arbitrators were not sworn. The respondents evidently proceeded on the idea that this was a common law and not a statutory submission, and that it was not necessary that an oath should be administered to the arbitrators. By the common law, when the subject matter is such that a parol agreement between the parties would be valid, a verbal submission and award will be binding on them--Hamlin v. Duke, 28 Mo. 166, citing Caldwell on Arb. But a submission to arbitrators in writing is a submission within the statute, although there is no clause authorizing or empowering a Circuit Court judgment to be entered on the award-- Bridgman v. Bridgman, 23 Mo. 272.

The third section of our statute concerning arbitrators is an exact copy of the fourth section of the New York revised statute on the same subject, which enacts that, “before proceeding to hear any testimony, the arbitrators shall be sworn faithfully and fairly to hear and...