Tomlinson v. Hardwick , 41 Ga. 547 ( 1871 )

McCAY, Judge.

It is no longer a mooted question before this Court, that an award is final and conclusively between the parties, unless exceptions are filed, according to secs. 4183, 4184 of the Revised Code. We have intimated in the case of Shaifer v. Baker & Carswell, 38 Ga., 138, that an award might be illegal, under this section of the Code, if it should be so contrary to the testimony as to require an interference, that it was corrupt, or founded on gross mistake of fact or law, and we are still of that opinion. But as we have held in the cases above alluded to, the exceptions must so set out the case as that the Court can say, “if this be true, the award is illegal.” The losing party in this case seem to have fairly understood what was incumbent upon them, and the exceptions set out in detail the evidence before the arbitrators, wit an affidavit by one of the parties, that this is all.

The question then is, does this evidence show so strong a case for Hardwick and Styles as to require the Court to say these' arbitrators must have either been corrupt, or they havé so mistaken the law and the facts as to make their award illegal? It is not a mere error in judgment that we allude to, they must have been mistaken—been under a delusion. The gaining party, through their father and themselves, had been in possession without interruption for twenty-four years, they were in possession of a part at the trial. Styles, the defendant, had got into possession, by writing, from them. It.is true, it was proven that the father of the young Tomlinsons had been put in possession by Dr. Tomlinson, his nephew, who originally owned the land, and the young people did not pretend to set up any title, except as successors to their father. But it appeared that Dr. Tomlinson had never interferred with the possession since the death of the old man, in 1853, and one of the witnesses swore they had been holding adversely since their father’s death. Besides, there was no proof, as appears from the .exceptions, that Styles claimed *under Dr. Tomlinson, nor does even Hardwick show this. He claims under Collins, trustee, but there is shown no connection between Collins, trustee, and Tomlinson.

Styles, too, is proven to have gone in as tenant of the young Tomlinsons. How does he get the right to set up a claim adversely to those who gave him the possession? With this long possession, and this adverse claiming for so long a time, and with the fact that it does not appear that Styles and Hardwick claimed under Dr. Tomlinson, we cannot say that this award must be either corrupt, or founded on so gross a mistake of the law or facts as to be illegal. We think, therefore, the demurrer ought to have been sustained, and the award should have been made the judgment of the Court.

If mere errors in judgment—mere differences of opinion, as to the effect of evidence, or even as to the doubtful questions of law, are to be a ground for setting aside awards, then an award is, under the statute, only a mode of commencing a suit—not the end, but the beginning of litigation.

It is going very ifar, under the authorities, to permit any attack upon an award on the ground that it is contrary to the evidence, but whilst we, nevertheless,- have gone this far, we think the case must be a very strong one—one that shuts the Court up to the inference of fraud or gross mistake.

Judgment reversed.