Hall v. Morris , 30 Tex. 280 ( 1867 )

Willie, J.

The award plead by defendant in the court below, in bar of the plaintiff’s right to recover, was, in our opinion, sufficiently regular to make it binding under the statute. Although it does not affirmatively appear that any day was assigned by the district clerk for the trial, yet the testimony shows that both parties were before the arbitrators when the matter was under investigation, and submitted their testimony in the case. The right to have a day assigned by the clerk for the trial, and that two days shall have elapsed between that day and the date of filing the agreement, may be waived by the parties; and, -if they voluntarily appear, enter upon the investigation, and submit their case to the arbitrators, without objecting to any departures from the statute in this respect, it will be too late to do so after the award has been made and returned into court. The proper time to raise this objection is when the arbitrators are about to proceed with the trial, provided the parties are present. But if the arbitrators go on with the trial, without either or both the parties being before them, then the objection that there was no day assigned by the clerk for the investigation, as provided by the statute, may well be taken for the first time in the district court.

The 3d section of the act of 1846, imposing the foregoing duty upon the clerk, is directory only, and if he fail or refuse to comply, the parties are not thereby to be debarred from the right to have the matters in dispute between them settled by arbitration. They may waive this action on the part of the clerk, and fix their own day for the trial, and an award made under these circumstances will be good under the statute. Neither is the award vitiated because it was not made the judgment of the court at the first term after it was rendered. The statute requiring judgment at the first regular term after award made was evidently intended to prevent it from being taken before the losing party should have an opportunity of filing his objections, to the award. The fact that he has been allowed six months’ additional time within which to make the objections cannot certainly furnish him with grounds of complaint.

This suit was brought to the second term of the court after the award was made. It was the privilege of the defendant, in whose favor it was rendered, to have it entered up as the judgment of the court at that term. She pleads it as a bar to the demand of the plaintiff, and, in effect, asks that it may then be made a judgment final and decisive of the controversy between the parties. Sufficient evidence is introduced to show that there was a waiver of any action of the clerk in assigning a day for the trial. But the charge of the court deprives her of the benefit of this defense, by holding that the, award is rendered invalid under the statute because the clerk did not set a day for the trial, and because the award had not already been made a judgment of the court. We think, for the reasons above stated, that the charge was erroneous in this respect, and that the judgment must therefore be reversed, and the cause

Remanded.