Savannah, F. & W. Railway Co. v. Decker , 94 Ga. 149 ( 1894 )

Simmons, Justice.

1. The plaintiffs brought their action in the city court of Savannah against the railway company for an alleged failure by the defendant to carry and deliver safely certain cotton, by reason of which failure the cotton was lost to the plaintiffs. Pending the suit the parties agreed to submit the matter in controversy to arbitration. In the submission two arbitrators were named,, one chosen by the plaintiffs and the other by the defendant, who were empowered to choose an umpire, and it. was agreed that when the arbitrators should agree upon an award, it should be returned by them, or either of' them, to the city court of Savannah, and made the judgment thereof, in accordance with the statute in such, cases made and provided.

It is clear to our minds from the terms of this submission that the word “ arbitrators ” was applied to the-umpire as well as to the two arbitrators named. There was no use for an umpire if the submission required the-two arbitrators named by the parties to agree. It contemplated, by the power given the arbitrators to select-an umpire, that if the two persons selected should disagree, one of them and the umpire should make the-award; and in our opinion, -when one of the arbitrators and the umpire agreed and signed the award, and the-other arbitrator dissented, the award was within the-terms of the reference, so far as being the award of the arbitrators was concerned.

2. It was insisted, however, that nothing appeared to-show that the dissenting arbitrator had ever agreed to the selection of the umpire, and therefore the award was. void. The dissenting arbitrator made no suggestion in his dissent that he did not participate in the selection of the umpire, but put his dissent upon a wholly different ground. Having participated in the hearing of the controversy and making no dissent on the ground that-the umpire had not been properly selected, his assent to-the selection will be inferred.

3. Under the facts stated above and others to be found in the official report, the award made by one arbitrator and the umpire was legal, and when it was filed in court and no exceptions were made by the losing party, it was-the right of the party in whose favor the award was made, to enter up judgment on the same; and where this was not done at the next term of the court after the award was hied, it could be done at a subsequent term. nunc pro tune. Judgment reversed.