Wilbourn v. Hurt

• Decision Date: 04 March 1904
• Parties: WILBOURN v. HURT.
• Court: Alabama Supreme Court

36 So. 768

139 Ala. 557

WILBOURN v. HURT.

Supreme Court of Alabama

March 4, 1904

Appeal from Circuit Court, Perry County; John Moore, Judge.

Submission of controversy between S.E. Wilbourn and James W. Hurt to arbitration. An award in favor of Hurt for the sum of $50 was filed, and entered as a justice's judgment, from which Wilbourn appealed to the circuit court, and, from a judgment of the circuit court on the award, Wilbourn appeals. Dismissed.

A controversy existed between the parties to this appeal, and by a written agreement signed and sealed by the parties, all the matters in controversy were submitted to arbitration under sections 509 and 523 of the Code of 1896. The parties appeared before the arbitrators, evidence was heard, and the arbitrators rendered an award in writing, signed by each of them, awarding the sum of $50 as due from S.E. Wilbourn to J W. Hurt. The submission in writing and the written award of the arbitrators were filed in the office of Clifton C Johnston, a justice of the peace in and for Perry county Ala., and the award so filed was entered up by said justice of the peace as the judgment of his court. Appellant, Wilbourn, made no objection to the entering up of the award as a judgment by the justice of the peace, tendered no bill of exceptions to the arbitrators to be certified by them, but, after the award had been entered up, gave bond and appealed to the circuit court of Perry county, Ala. When the appeal came on to be heard in the circuit court, appellee, Hurt, moved to dismiss on the grounds that there was no provision of law for jurisdiction of such appeal, and on other grounds stated in said motion, and also moved to strike said appeal from the docket on the grounds stated in the motion to dismiss. These motions were overruled by the court, and appellee excepted. Appellant then moved the court to dismiss the cause for want of prosecution, on the ground that there was no complaint filed by appellee. This motion was overruled by the court, and appellant excepted. Appellee then moved the court to enter up the award sent up in the file from the justice of the peace court as the judgment of the circuit court. Appellant thereupon moved the court to strike said motion to enter up the award as the judgment of the circuit court from the file, on the grounds that no complaint had been filed, that no trial had been had upon the appeal from the justice of the peace court, and that appellant was entitled to a trial de novo. This motion to strike being overruled by the court, the court granted appellee's motion to enter up as the judgment of the circuit court the award of the arbitrators as found in the file sent up by the justice of the peace. Appellant excepted to the overruling of his motion to strike, and also to the granting of appellee's motion to enter the award as the judgment of the circuit court, and from said judgment appeals to this court.

Wm. F. Hogue, for appellant.

W. O. Johnson and Stewart & Stewart, for appellee.

McCLELLAN C.J.

The law favors, and by express statute it is made the duty of courts to encourage, the settlement of controversies by reference thereof to arbitrators chosen by the parties. Code 1896, § 508. The theory upon which the law and courts encourage such settlements is that they facilitate and expedite the adjustment of disagreements between citizens, they save the time of the courts and the costs of regular judicial proceedings, and, being made pursuant to the agreement of the parties, and by persons of their own selection, they are likely to be more satisfactory to all concerned and to assuage and heal animosities, thereby conserving the general good. To conserve these ends, and to justify their favor and encouragement of the law and the courts, it is necessary that such settlements should settle the controversies involved, close them up, and conclude them out of court. If any party dissatisfied with a settlement made by arbitrators may bring the controversy into court, and there have it reinvestigated, and litigated and determined over again, the whole scheme and theory and purpose of arbitration would be thwarted and defeated; there would be no basis for the favor and encouragement of the law and the courts; and, instead of time and costs being saved, and animosities being allayed, litigation would be repeated and drawn out, costs would be increased, and ill feeling engendered, intensified, and prolonged beyond what would be incident in any of these respects to suits in the courts in the first instance. In other words, the submission to arbitration might well in every case, and certainly would in many, operate to the creation or aggravation of the very evils which it is the purpose of the law to avoid or to lessen by recognizing, providing for, and encouraging this mode of settling controversies among the parties. But apart from the foregoing considerations, it is altogether illogical that a party to an arbitration should be allowed to take the controversy into the courts after it has been submitted to arbitrators and decided by them. His submission of it is entirely voluntary. There is no coercion or compulsion about it. The consideration for his agreement of submission is a like agreement on the part of his adversary. Their minds come together to the conclusion that this is the best way to adjust their differences. They select the person or persons who shall determine the issues between them, and they contract one with the other that the arbitrators thus selected shall determine and declare their rights and duties in the premises, and they bind themselves to abide by and perform whatever award may be made. It is not their contemplation nor their contract that the award shall be tentative merely, or evidential merely, or merely preliminary to litigation in the courts; but it is their contemplation, and undoubtedly their binding contract, that the award shall finally settle and forever determine the controversy. Each of them is as much bound by the award as if each, without controversy or arbitration, had agreed, contracted, and promised in writing to pay the money or do the thing each is required by the award to pay or do. It is as much an agreed settlement of their dispute in the one case as the other, and neither can any more avoid or escape the duty imposed by the award than he can avoid or escape the obligation imposed by his contract. If he made the contract, and has not performed it, and is sued upon it, he has no defense to such suit. He may show, if he can, that he did not sign it or that he has performed it, but, failing in this, he is absolutely bound by it. So with an award. If he has submitted a matter to arbitrators, and they have jointly considered that matter and determined it, and made their award accordingly, and he is sued upon that award, he has no de fense to such suit. He may show, if he can, that they have not considered the matter submitted, or that their award is corrupt; but, failing this, he cannot have a reinvestigation of the controversy and a retrial of its issues in any court, because he has foreclosed all that by a valid and binding contract that those issues shall once for all be investigated by judges of his own selection, and that their conclusion upon them shall determine and forever settle the controversy. He has no right to have his controversy tried by a court, because he has contracted away this right in consideration of having it settled by judges of his own selection, and the law recognizes and the courts will hold him to this contract, whether the award be a common-law or a statutory award. The controversy has been settled as he voluntarily and upon valuable consideration agreed that it should be settled, and there it must and does end. It is therefore not only subversive of the whole theory of arbitration, the emasculation of the whole system, altogether illogical, and even absurd, to allow a retrial of the controversy in the courts, by appeal or otherwise, but it involves the participation by the courts in a flagrant violation of the express, valid, and binding contract of the parties.

We have been discussing awards generally, without special reference to our statutory provisions on the subject of arbitration. When the Legislature came to deal with this subject, it not only fully recognized the general doctrine as to the finality and conclusiveness of awards, but, out of abundant care and caution, it expressly reiterated and declared that doctrine as applicable to our statutory awards. This is the provision: "An award made substantially in compliance with the provisions of this chapter, is conclusive between the parties thereto, and their privies, as to the matter submitted, and cannot be inquired into, or impeached for want of form or for irregularity, if the award determines the matter or

controversy submitted and such award is final, unless the arbitrators are guilty of fraud, partiality or corruption in making it." Code 1896, § 521. This section was a part of...