McCrary v. Harrison , 36 Ala. 577 ( 1860 )

A. J. WALKER, C. «T.

No final decision was made by the arbitrators on the 14th December, 1857. The, conclusion then expressed, after examination of the papers submitted, was expressly made subject to future alterations, upon the suggestion of errors by the-parties. It was not an award. There was an express reservation of authority over the subject of arbitration. The matter remained sub judice. A valid award must finally dispose of the questions submitted. The reservation of authority by arbitrators is inconsistent and irreconcilable with the idea of an award. — Watson on Awards, 216, 230 ; Russell on Arbitrators, 272, 252, 268.

[2.] On the 14th December, 1857, the arbitrators appointed the 1st April, 1858, as the time at which the appellant-should deliver the books and papers of the partnership, which were left with him, and submit a written statement of such errors as he might detect. The arbitrators do not seem to have taken any action on that day; but subsequently, on the 4th May, 1858, two of the-arbitrators rendered a final judgmdnt. This judgment does not appear to have been rendered' either with the knowledge of, or after notice to the third arbitrator. It is simply stated that the third arbitrator declined, on the 14th December, to sign the written conclusion then expressed. We pass by, without deciding, the question whether a majority of-the arbitrators chosen by the parties, with a view to their action under chapter 9, title 2, part 3, of the Code, can proceed at all in the absence of the rest, until their places are supplied, as provided in section 2713 of that chapter. But, conceding that they may, it is certain that the majority could not meet and adjudge the matter of controversy, without giving notice to the remaining arbitrator, and afi'ording him an opportunity to be present and participate in their deliberations. The parties stipulate for the counsel and capacity of all the arbitrators; and it is as irreconcilable with reason and justice, as it is with the authorities in the law, that a part of the arbitrators should proceed to a final judgment, without notice to the rest. — Dalling v. Matchet, Willes, 215; Russell on Arbitrators, 208, 210, 160, 161; Watson on Awards, 73; Cumberland v. North Yarmouth, 4 Greenleaf, 459 ; Short v. Pratt, 6 Mass. 496; White v. Sharp, 12 M. & W. 711; Henderson v. Burkley, 14 B. M. 292; McInroy v. Benedict, 11 J. R. 402; Goodman v. Sayre, J. & W. 261; Tusc. Bridge Co. v. Jemison, 33 Ala. 476. The fact that there was a previous dissent on the part of the absent arbitrator from the opinion of the majority, afforded no reason for an omission to notify him. The importance of his presence was rather increased by that fact. Peradventure, he might have convinced his co-arbitrators of their error. The presence of all the arbitrators, or an opportunity to be present, was requisite as long as the case remained under consideration. As that which was done on the 14th December, 1857, was not a final disposition of the subject of arbitration, the presence of the third arbitrator, or a notification to him, was indispensable.

In the absence of any recital in the award that the third arbitrator had notice or was present, and of all evidence of such fact, it is impossible to affirm the judgment of the court below. The award was, at least prima fade, void.

Judgment reversed, and cause remanded.