Jones v. Payne , 41 Ga. 23 ( 1870 )

McCAY, J.

1. An infant cannot bind himself, by a submission of his rights to arbitration: Billing on Awards, 34. Nor can he appoint an agent or attorney to do it: 1 American Leading Cases, 250. The submission is the foundation of an arbitration, a defect in that, a want of capacity in the signer of it to bind himself, cannot be cured by the arbitrators appointing a guardian ad litem. As to the infant, the arbitrators have never been legally chosen, and if they have no power to act, they have none to appoint a prochien ami. Nor do we think this difficulty is cured by the appointment of a guardian by the Chancellor. Had there been a suit pending to which the infants were parties, and were this submission made under the order of the Court, perhaps the Chancellor might have cured a defect in this way. But there is nothing in this record to show any jurisdiction of the Chancellor over these minors. There was no suit pending in Lee county to give him jurisdiction. It does not even appear from the record that they resided in the Southwestern Circuit, and even if they did, we doubt if a guardian ad litem, appointed after the submission, could cure the radical defect, that the submission was not agreed to by one duly authorized to submit the dispute.

2. The agreement made at Albany disposed of the submission, except as to the single question left to Judge Vason. And though we do not say that the subsequent parol agreement, to take the decision of Mr. Jones, as to the amount the books of the Ordinary showed to be due, would not, if his decision was not a mistake or fraud, bind the adult parties, yet we are clear this was not a statutory award. The law, Section 4167 of the Code, requires a statutory submission, to be in writing. Nor can it, with any propriety, be tacked on, as an addendum to the order of Judge Vason, accepting the resignation of the trustee and appointing another.

*3. But these objections to this so-called award, can be made under the motion pending in Lee Superior Court. Even if the paper were a regular statutory award, the party has the whole term at which it was returned to file his objections, or at least until it is too late to take issue on them: Code, Sections 4183 and 4184. We see, therefore, no necessity for the interference of equity. The remedy at law is complete.

4. It has been argued, however, that, inasmuch as at law nothing can be attained but a setting aside of the award, a Court of Equity will take hold of the matter, not onlv to do this but to make a full decree, settling the rights of the parties. Such a doctrine would set aside the whole policy and effect of the arbitration law. This ground for equitable interference exists in every arbitration under the statute. The Code authorizes an. award to be objected to for mistake, fraud or illegality, and it provides a specific mode for determining the issues which may arise, and the verdict, in no event, can be other than one maintaining or setting aside the award, leaving the original dispute unsettled. Any one dissatisfied with an award, might, on the principle contended for, always get clear of the statutory provisions, since in all cases the remedy at law leaves the dispute unsettled. This would fritter away the whole system, and make every arbitration the mere commencement of a suit in equity. Were there any special circumstances requiring equity to interfere to set aside the award, that Court, having acquired jurisdiction, would doubtless go on to settle the whole dispute. But no such circumstances exist in this case, and we see no reason for the interference of a Court of Equity to do that which can be done just as well by the mode pointed out by the statute.

5. Nor is there such a jurisdiction given to Lee county by the submission, as gives jurisdiction in that county to a bill to set aside the award of Mr. Jones. His decision is not under the submission, and though equity may have, under a proper case made, jurisdiction to set it aside and reinvestigate the matter, yet the mere claim of the executor that it is a statutory award, does not transfer the jurisdiction of the ^original dispute from Terrell the residence of Jones, to Lee.

It is not necessary, to defend the proceeding in Lee, to go over and decide the original matter in dispute. The question in Lee is simply award or no award.

Judgment reversed.