Hall v. Little ( 1854 )

Wheeler, J.

The ground, mainly relied on for a reversal of the judgment, is that taken first in order in the assignment of errors: that is, that the arbitrators having once acted under the submission, their office was determined, and the Court could not legally re-refer the matters in question to their arbitrament.

It has been assumed, in argument, that a previous award had been made under this submission. It does not, however, so appear by the record, otherwise than by a recital to that effect, in the award. And if that recital is to be taken as evidence of the fact, it thereby appears that the former award was set aside as unauthorized by the agreement of submission, and, consequently, void. It would seem, therefore, that it was, in effect, as if no award had in fact been made.

But the Court was much better qualified to judge, from the record before it, what action had been taken, than the arbitrators ; and their recital of matters of record before the Court, was entitled to no weight whatever. The Court would judge by the record and not by the recital. The motion of the appellee averred that there had been no award as between these parties. There is no statement of facts; and we must therefore presume, in support of the judgment, that the truth of all the averments of the motion, necessary to authorize the action of the Court, was made satisfactorily to appear. Every presumption is to be indulged in favor of the judgment. And where it does not appear by the record, that any such action of the Court, as that recited in the award, was taken, the mere gratuitous recital to that effect by the arbitrators, cannot be received as evidence of the fact, sufficient to authorize a reversal of the judgment, on that ground. It is unnecessary, therefore, to determine whether, if, by reason of any mistake or error on the part of the arbitrators, they have exceeded their authority, whereby their award is rendered nugatory, it will be competent for the Court to refer back to them the matters embraced in the submission, for their further action ; or whether, in the absence of such a power, the agreement in this case, authorized the arbitrators to make a second award.

It is insisted, for the appellant, that the requirements of the statute were not observed ; for that it does not appear that a day was assigned by the Clerk, for the trial before the arbitrators, as required by the statute,-(Dig. Art. 9,) or that the appellant had notice of the time and place of hearing,; or that the arbitrators were sworn. It might be a sufficient answer to these objections to the judgment, that they are not assigned as error. But they are susceptible of another answer. They were not taken in the Court below. The defendant appeared and moved the Court to set aside the award; but not for either of these causes. In the case of Hooper v. Brimson, (2 Tex. R. 185,) it was held, that where the record does not show, affirmatively, that the parties had notice of the time and place of hearing before arbitrators, and exception was not taken in the Court below to the want of it, the appellate Court will presume such notice was duly given. And this will hold equally true as to the appointment of the time of hearing, and the swearing of the arbitrators: and, for the reason, to be collected from the opinion of the Court in that, and the subsequent case of Officiers v. Dirks, (Id. 468,) that these are matters which do not properly, or necessarily constitute any part of the record of the proceedings in the District Court, unless made so by exception there taken. In the case last cited, it was observed of these matters, that the Clerk is not required by the statute to enter them of record. Consequently their absence is not evidence that the law was not complied with in these particulars. If, in fact, these requirements of the law were not observed, the objection should have been taken in the Court below, where the facts could have been ascertained, and, by bill of exception, or otherwise, made a part of the record.

We might have disposed of this case, briefly, upon the ground that no one of the errors assigned is supported by the record; and the objections to the judgment, taken in argument, and which we have considered, do not go to the merits, and are not of that character, which, the party, by omitting to assign as error, will not be deemed to have waived.

In one respect, this case very much resembles the case of Edrington v. League. (1 Tex. R. 64.) The record manifestly does not contain all the proceedings which were before the Court, when the judgment was rendered. As in that case, however, sufficient appears to enable us to determine that the judgment was rendered in a case and upon a subject matter properly cognizable in the Court; and between parties represented before it. There is no bill of exceptions or statement of facts ; and, upon the principles by which the case of Edrington v. League, Green v. Franklin, (1 Tex. R. 497,) and the cases before cited, were determined, it must, we think, be held that there is no error apparent upon the record. The judgment is affirmed.

Judgment affirmed.