Culbreth v. Smith , 202 Ga. 102 ( 1947 )

1. The Supreme Court has jurisdiction of writs of error "in all cases respecting title to land."

2. Under the Judiciary Act of 1799 (Code, § 7-224), parties to a pending case may submit the issues in controversy to an arbitration, by an agreement in writing, without an order of court, and the award of the arbitrators may be made the judgment of the court.

3. "Exceptions to an award, on the ground that it is contrary to the testimony before the arbitrators and, therefore, illegal must set out the testimony in full, and the record must show such a case of contrariety to the evidence in the award as to require the inference of fraud, accident, or mistake in the arbitrators. If there be any evidence to sustain the award, the exceptions will be demurrable." Tomlinson v. Hardwick, 41 Ga. 547.

No. 15709. APRIL 15, 1947. J. T. Culbreth, as administrator of Mrs. M. B. Culbreth, deceased, and others, sought injunction against W. M. Smith, to restrain him from cutting and removing timber upon described lands, and for damages for timber alleged to have been cut and removed the plaintiffs claiming title to the lands described.

The defendant in his answer denied that the plaintiffs owned the lands, and asserted that he was the owner thereof. The parties entered into an agreement in writing to submit the question as to ownership of the lands to arbitration, one arbitrator to be selected by the plaintiff, one by the defendant, and the two thus selected to name the third arbitrator.

In due course the arbitrators filed an award, in which they found W. M. Smith, the defendant, to be the owner of the lands. The plaintiffs filed exceptions to the award, which were overruled, and the plaintiffs except to this ruling and to the judgment making the award of the arbitrators the judgment of the court. 1. Under art. 6, sec. 2, par. 4 of the Constitution of 1945, the Supreme Court, and not the Court of Appeals, has jurisdiction "in all cases respecting title to land." The arbitration proceeding in this case was dealing solely with the title to land, and falls squarely under the constitutional provision that the Supreme Court has jurisdiction in cases respecting the title to land.

2. The plaintiffs in error contend that the award of the arbitrators in this case could not be made the judgment of the court. This contention is clearly without merit. A case pending in court, and referred to arbitrators by agreement of the parties, comes under the Judiciary Act of 1799 (Code, § 7-224), and not under the Arbitration Act of 1856 (Code, §§ 7-201 to 7-223, inclusive), which applies only to cases originating out of court. This rule is clearly stated in Walker v. Walker,25 Ga. 65. In Tison v. Sellars, 40 Ga. 710, it was held: "Where there is a suit pending in any Court of this State, the parties may, under a rule of the court or by agreement in writing, submit the dispute to arbitration, and to any number of arbitrators, and their award may be made the judgment of the court where the suit is pending, even though the proceedings have not complied literally with the provisions of title 28, chapter 1st, of the Code [Act of 1856], since such an award is not strictly under the system provided by that chapter."

In the present case, the parties in an equitable cause for injunction and other equitable relief by agreement in writing submitted to arbitrators the one controlling question, the ownership of the land. The plaintiffs alleged themselves to be the owners. This allegation was denied by the defendant, who alleged title in himself. It appears that the arbitrators were sworn and made their award in writing and that it was duly returned into court. Under the Judiciary Act of 1799 (Code, § 7-224) the award might properly be made the judgment of the court. Walker v. Walker, supra; Walker v. Walker, 25 Ga. 259; Tison v. Sellars, supra; Hardin v. Almand, 64 Ga. 582; King v. Davidson,69 Ga. 708; Hall County v. Smith, 178 Ga. 212 (172 S.E. 645).

3. The plaintiffs' exceptions — on the grounds that "(1) the arbitrators failed to swear the witnesses and took no evidence under oath; (2) because the evidence taken by the arbitrators, although not under oath, demanded a finding in favor of the plaintiffs" — cannot be sustained under the record before us. A careful examination of all the testimony set out in the bill of exceptions, which plaintiffs contend demands a finding in their behalf, does not identify or describe any certain lands. Such testimony tends to establish the place where Springhead Branch empties into the river, and that the plaintiffs owned land on one side of the branch and the defendant on the other. The testimony, if otherwise valid, is too uncertain as to the description and location of the lands claimed by the plaintiffs to authorize any finding favorable to them. The agreement submitting the question of title to arbitration provides: "The three arbitrators are authorized to examine into the facts with respect to the title to said tract of land, and to go upon the premises and inspect the same, and to reach a decision as to whether or not the parties of the first part or the party of the second part, as the case may be, own said tract of land in dispute." Under this agreement, the arbitrators were not `bound to hear any evidence, under oath or otherwise, but were authorized to make a finding as to the ownership of the lands based upon an inspection of the premises. Under the authority granted "to examine into the facts," the arbitrators could make surveys, examine the deed records and the pleadings, and by examination of the premises make a finding as to the ownership of the property in dispute. There being no requirement that they hear witnesses, under oath. and the bill of exceptions not showing that they did not make any examination of the premises, or otherwise investigate the title, this court will not hold, as a matter of law, that there was no evidence to support the award made. As was said in King v. Davidson, supra, "Awards are to be favored by the courts, as they are designed to terminate controversies, and they should be sustained when made in conformity to law, unless vicious or defective for some manifest cause, properly made known to the court." The award in this case was made in substantial compliance with the Judiciary Act of 1799, and is not defective for manifest cause. Nor does the evidence set forth "require the inference of fraud, accident, or mistake in the arbitrators." Tomlinson v.Hardwick, 11 Ga. 547.

Judgment affirmed. All the Justices concur.