Lallande v. Bonny , 13 La. 462 ( 1839 )

Rost, J.,

delivered the opinion of the court.

The parties to this controversy, wishing to settle amicably certain differences existing between them in commercial operations on bank stocks, made on joint account, agreed in writing under the penalty of three thousand dollars, to abide by the decision of Samuel Hermann and James P. Freret, or of a third arbitrator chosen by them, in case they should not agree. The arbitrators first promised to act, and before being sworn, having received the statement of one of the parties, they had one or two conversations together on the subject, out of the presence of the parties, when finding that they were unable to agree, they proposed to leave the matter to Mr. Musson, who was then present, and to choose him as umpire; his appointment was not reduced to writing, and he was no.t sworn. Subsequently, the statement of the other party was submitted to them, and being still unable to agree, Samuel Hermann refused to act any longer. Freret and Musson were of opinion, that Bonny was right, but no decision was given, and the plaintiff instituted the present action, within the three months that followed the date of the agreement, to obtain a judicial investigation of the transactions which he had agreed to submit to the decision of the above named persons.

The defendant excepted to the action, on the ground that all the matters alleged by the plaintiff had been, by the agreement already alluded to, submitted to the arbitration of the persons therein named.

The District Court being of opinion, that under the article 3072, of the Louisiana Code, the power of the arbitrators was to endure three months, and that the court could not presume that the refusal of Hermann to act would continue during the whole time, thought that the action was premature and maintained the exception. The plaintiff appealed.

We are of opinion that the court made a false application of article 3072, of the Louisiana Code. It is true, that it provides that the power of the arbitrators may continue three months after the date of the submission, unless the parties agree to revoke it, but it goes on the supposition that the arbitrators are willing to serve. When their refusal is ascertained, t.he parties are left to their legal remedy, and may have recourse to it without any delay. Where the amicable jurisdiction which the submission created recuses itself, the submission stands as if it had never been made. The Code of Practice, article 450, which provides that the arbitrators shall not be allowed to resign their appointment without a good cause, applies only to judicial arbitrators, appointed to decide a suit already pending, and even in that case, they may refuse to act without assigning reasons, at any time before taking the oath.

The power of arbitrators may continue for three months after the submission, unless the parties agree to revoke it sooner. But if they, or any one of them refuse to act, the parties are left to their legal remedy, without any delay. Judicial arbitrators, appointed to decide a suit already pending, may refuse without assigning reasons at any time before taking the oath.

We are of opinion that the exception was improperly sustained.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, the defendant’s exception overruled, and the case remanded, with directions to the district judge to proceed therein according to law, the defendant and appellee paying the costs of this appeal.