Hooper v. Brinson , 2 Tex. 185 ( 1847 )

Mr. Justice LipscoMb

delivered the opinion of the court; Mr. Justice Wiieeler not sitting, having been of counsel in the court below.

There has been no appearance for the plaintiff in error, and no brief sent up; the defendant asks an affirmance of the judgment, and has submitted the cause on his brief.

From the grounds set forth in the petition for the writ of error by the counsel for the plaintiff, it seems they thought it necessary to state them, the non-conformity of the proceedings in this case with the statute, entitled an act authorizing the settlement of disputes by conciliation or arbitration, passed at the first session of the state legislature, Pamp. Acts, 127.

By a reference to the act it would seem to be intended thereby to provide for conciliation before suit brought of any matter of dispute between the parties, and would not abridge the right of parties already litigant, from a consent of record, to a reference in the way before known to the law. But, even, if such was the fact, that it did intend to exclude any other mode, still the statute can have no application to this case, because the reference had in truth been made before the passage of the act, and the only alteration made in the reference after its enactment was to change the name of one of the referees and substitute another.

Under the facts presented by the record, it does not appear to us that the award is obnoxious to any legal or just exception in this court. True it is, the record does not affirmatively show that the parties had notice of the time and place of the meeting of the arbitrators. It was doubtless necessary, on the principles of pure justice, without any express law, that notice should have been given, but it does not follow that such notice should appear on the record, unless exception had been taken in the court below to the want of it. If •exception is not taken in the court below, a revising court will presume it had been given. Such was the opinion of the supreme court of the United States in the case of Lutz v. Linthicum, 8 Pet. 165. In that case it appeared that the laws of the state of Maryland required that notice of an award shall be given to the party against whom it is made by service of a copy three days before judgment is moved, and judgment, is not to be entered but on motion and the direction of the ■court. It wras alleged that a copy of the award was not delivered. The court say, how that may have been we have no means of knowing, for nothing appears on the record respecting it, and there is no ground to say that it ought to constitute part of the record, or that it is properly assignable as error, it is a matter purely in pais. If no such copy had been delivered, the proper remedy would have been to take the objection in the court below. We apply the same reasoning to the •case before us, and affirm the judgment with ten per cent, damages, the cause seeming to have been brought up for delay.