Schohmer v. Lynch ( 1861 )

Lowe, C. J.

Several matters are assigned for error in this case which were not raised and passed upon by the court below, and of course they will receive no attention from us. 5 Iowa 196; 4 Ib. 292; 2 Ib. 30, 44.

The four reasons given for setting aside the award were acted upon by the court and overruled, and this ruling of the court is assigned for error.

Three of these causes are founded upon extrinsic facts which do not appear of record, and therefore we have no means of judging whether the court decided correctly or not. The other relates to the power of the court to enter a judg-. ment upon the award of the referees without an express stipulation to that effect in the submission. The judgment entry in this case, as well as the affidavit of one of the referees, shows that this was a reference by order of the court, with, the consent of the attorneys for the parties. In a case of this kind the pleadings constitute the submission, and an agreement between the parties that the award should be made a rule of court is unnecessary. The court does not lose its. control of the parties, referees or the award. When the award is returned into court, a judgment may be rendered upon the same, or the court, upon a sufficient showing, may set it aside in whole or in part, or make a new reference. The referees when appointed stood in the place of the court as it respects the particular question or questions submitted to them. Sections 1794, 2115 of the Code of 1851.

Affirmed.