Wilkinson v. Prichard
Decision Date | 18 December 1909 |
Citation | 123 N.W. 964,145 Iowa 65 |
Parties | R. WILKINSON, Appellant, v. ELLEN PRICHARD ET AL |
Court | Iowa Supreme Court |
Appeal from Jasper District Court.--HON. BYRON W. PRESTON, Judge.
THE plaintiff appeals from a judgment confirming an award of arbitration.
Affirmed.
E. J Salmon and L. S. Kennington, for appellant.
McElroy & Cox, for appellees.
Issues had been joined March 8, 1906, as to whether defendants, or those under whom they took, had obstructed plaintiff's ditch, and, if so, the amount of damages caused thereby, and whether plaintiff by the excavation of the ditch had directed water from its natural course and thrown it on defendants' land to their damage, and, if so, the amount thereof. There were other matters of difference between them, and May 18th following an agreement of arbitration was entered into, designating three arbitrators and authorizing them to determine the issues mentioned and also other specified differences between them, and requiring the award to be filed within sixty days. This agreement was duly acknowledged, but another, entered into June 16th, extending time for filing the award thirty days, was not acknowledged. On August 8th the parties stipulated "that they and each of them will abide by and indorse their approval upon and waive their right of appeal from the award upon a submission to arbitration," and this was to have the same effect as though incorporated in the original agreement, though it was not acknowledged. On August 20th, two days after the expiration of the period within which this was to be done, the award of the arbitrators was filed. It found plaintiff entitled to recover as damages the sum of $ 50, and the defendants on their counterclaim, $ 75; that plaintiff should pay defendants $ 4,320 for about one hundred and twenty-two acres of land, concerning access to which there had been some dispute, and that upon such payment defendants should convey the same to him; that plaintiff should construct and maintain a ditch, particularly described, before May 1, 1907; that defendants should keep that portion of the ditch in their land open; and that each party pay one-half of the costs of arbitration, and that three-fifths of the costs in the case be taxed to plaintiff and two-fifths to the defendants. On October 24th plaintiff filed exceptions to the parts of the report allowing defendants damages and assessing costs and expenses, and moved that the remainder of the award be confirmed and judgment entered thereon. On December 8th plaintiff filed a motion to retax costs, reciting therein the submission to arbitration, and that "an award has been made and rendered thereunder by said arbitrators." On April 21, 1907, the defendants filed a supplemental pleading, reciting the facts relating to the submission and award, and that plaintiff had paid for and taken possession of the land involved therein, and received a deed therefor in pursuance of the award, and prayed that the award be spread on record and judgment be entered accordingly. On April 13, 1908, the defendants filed a resistance to plaintiff's exceptions, asserting, among other things (1) that the right to file exceptions had been waived by stipulating that approval should be indorsed on the award, and that no appeal should be taken; and (2) that plaintiff, after accepting a part of the benefits of the award accruing to him, can not avoid the burdens imposed therein. On May 11, 1908, plaintiff moved that the award be rejected because (1) not filed "within time fixed in the submission;" (2) that the terms of submission were changed by stipulations not acknowledged; and (3) the submission shows on its face that it was not a statutory submission. On the same day plaintiff also moved that the award be docketed separately from the cause as originally begun. On hearing plaintiff undertook to withdraw all objections and motions by him filed previous thereto, but defendants objected, for that plaintiff in filing the same waived all irregularities. The motions and objections were introduced in evidence, and also proof that plaintiff had paid for the land and received a conveyance thereof in pursuance of the award. The attorney for plaintiff also testified that he was not notified when the award was filed, that upon discovering that it had been, he could not find the papers in the files, and that these were not found by the clerk until about two months before the hearing, and that he delayed in filing the motion for the rejection of the award owing to a conversation with counsel for defendants, in which the latter had said two of the arbitrators had informed him the report was filed in time, and he expected to take their depositions.
I. It has seemed necessary to set out the facts with particularity, for as the award was filed after the time fixed in the agreements, its validity depends entirely on the subsequent conduct of the parties. Section 4392 of the Code reads that: "If the time within which the award is to be made is fixed in the submission, one made after that time shall not have any legal effect unless made upon a recommitment of the matter by the court to which it is reported." And section 4393: "If the time of filing the award is not fixed in the submission, it must be filed within one year from the time the agreement is signed and acknowledged, unless by mutual consent the time is prolonged." Submission to arbitration may be made without agreement as to time. All essential to a submission is that the parties "sign and acknowledge a written agreement specifying particularly what demands are to be submitted, the names of the arbitrators and court by which judgment on their award is to be rendered." Section 4386, Code. If there is an omission to acknowledge the agreement, the award can not be adopted by the court and judgment entered thereon. Fink v. Fink, 8 Iowa 312. Nor can this be done in the absence of a stipulation naming the court by which the judgment shall be entered. Foust v. Hastings, 66 Iowa 522, 24 N.W. 22; Love v. Burns, 35 Iowa 150. And doubtless the same result would follow an omission to specify particularly what demands are to be submitted, or to name the arbitrators, but these are all the matters the statute declares essential to statutory arbitration, though the time within which the award shall be made may be included. These may be modified by subsequent stipulations complying with the statute, and others, though included, may be changed or omitted by subsequent agreements, either in writing or parol. Varney v. Brewster, 14 N.H. 49; Graham v. Graham, 9 Pa. 254 (49 Am. Dec. 557); Nashua, etc., Ry. v. Boston, etc., Ry., 157 Mass. 268 (31 N.E. 1060); Doane College v. Lanham, 26 Neb. 421 (42 N. E. 405. See cases collected in 3 Cyc. 608. But the time within which the award must be filed is not one of the matters which may be changed informally. Such time necessarily is fixed in the submission; for if defined therein, it will be as stated, and if not, the award must be filed within one year, unless the time is extended by mutual consent. If to be within less than a year, the submission must so provide, and the statute requires that it be acknowledged. It follows, then, that any subsequent change in time must be effected under like restrictions; i. e., must be in writing and acknowledged. Bent v. Erie Telegraph & Telephone Co., 144 Mass. 165 (10 N.E. 778). The subsequent agreement, then, extending the time for filing the award, as it was not acknowledged, was of no effect, though this is not of consequence, as the award was filed after the expiration of the time as undertaken to be extended. The award when filed, then, "did not have any legal effect," and the sole inquiry is whether the parties have so adopted it that, notwithstanding this, judgment should be entered thereon.
II. The award was filed in the original action. Appellant contends that such action was dismissed upon entering into the agreement to arbitrate. Whether in the absence of statute such dismissal is effected when the agreement to arbitrate is filed, or only upon the return of the award, is a matter on which the authorities differ. See Goodwin v. Ins Co., 118 Iowa 601, 92 N.W. 894. But where the agreement is that judgment be entered in the pending...
To continue reading
Request your trial