Alexander v. Witherspoon , 30 Tex. 291 ( 1867 )

Coke, J.

This is a writ of error sued out upon a judgment of the district court of Harrison county, rendered upon an award of arbitrators, making said award the judgment of the court, and decreeing execution for its enforcement.

There are twenty-six assignments of error, many of them predicated upon papers, dates, &c., not found in the record. Upon an examination of the record, we find the entry of the judgment, which embodies, by way of recital, the agreement to submit and the award of the arbitrators. This, and the proceedings on the application for writ of error, is everything shown in the transcript. There is not a single file-paper of the district court copied into the record, if there were such. Ho application has been made by either party for certiorari to perfect the record. We must therefore consider the case upon the- record as it stands before us, and in doing so, as in the view we have taken of the case the judgment must be reversed and the cause remanded, we will confine ourselves to a consideration of the single point on which the reversal is predicated. The record is "so meagre and imperfect, that we would he compelled, in considering the various questions raised by the assignments of error, to supply its omissions by presumptions, which may prove, upon a fuller development of the case, to be variant from the real facts. We feel neither inclined nor obliged to discuss points arising on the presumed or imaginary hypothesis of fact which may be contradicted, nor to decide questions which may not arise when the case comes on again for the action of the district court. We will therefore consider the case only so far as is necessary to dispose of it in this court, leaving other questions that may arise hereafter to he dealt with when properly presented and their adjudication becomes necessary.

The twelfth assignment of error charges .error in rendering judgment upon an award made during the term of the court at which judgment was rendered. This assignment is sustained by the record in its allegation of facts, and, in our opinion, is well taken. It appears from a recital of the judgment that the award of the arbitrators was made on the 18th day of April, 1866, and the record, while it does not disclose the day on which the judgment was rendered, does show that it was rendered during the term of the district court of Harrison county commencing on the 19th day of March, 1866. It follows necessarily that the award was made during the term of the court at which the judgment was rendered.

While liberal presumptions in favor of-this mode of settling disputes have uniformly been indulged in by this court, it has always been held that, in order to entitle themselves to the benefits of the statute of 1846, “to authorize the settlement of disputes by conciliation or arbitration,” the parties must comply substantially with its provisions, and that it is only upon such a compliance that an award is good as a statutory award and enforceable in the statutory mode. [Paschal’s Dig., Art. 60, Note 244;] (Owens v. Withee, 3 Tex., 161; Cox v. Giddings, 9 Tex., 46.) The 7th section of' the statute provides, “that the decisions of arbitrators, if before a justice of the peace, shall be recorded as a judgment in his court, and on which execution may issue as in ordinary cases of judgment obtained before justices of the peace; if before the clerk, he shall file the same, and a judgment shall be entered thereon at the first regular term of the court thereafter.” [Paschal’s Dig., Art. 66, Note 249.] The meaning of this section of the statute is unmistakable: it authorizes the rendition of judgment at the first regular term of the court after the award is made, and not before. It is too plain for serious argument, that a term which commenced four weeks before the award was made is not the “ first regular term thereafter.”

If any doubt should remain as to what is meant by the “first regular term,” as used in the statute, it is dispelled by the concluding clause of the same section, which says: “But should either party appeal from the decision of the arbitrators, the appellant shall file his application with the clerk of the district court within the first three days of said court, wherein the case shall be tried de novo” &c., &c. [Paschal’s Dig., Art. 66, Note 249.] The entry of this judgment on the award at the spring term, 1866, is in express contravention of this section of the statute. The plaintiff in error could have waived the time and consented to the entry of the judgment at that term. But the record does not show that she did this, and such consent or waiver cannot be presumed. Hor can her presence in court, or a knowledge on her part of the motion to enter the judgment be presumed, when no action on the award was required by law to be taken at that term, and she consequently was not required to be present. For reasons before given, the rights of the parties to make the submission and bind the estates they represent, and .whether or not the proceedings, submission, and award conform to the requirements of the statute, are questions that have not been considered." We simply decide that if the award were admitted to be a good statutory award, the rendition of the judgment upon it was erroneous, because premature, and the plaintiff in error has had no opportunity to contest it. The cause will be reversed and remanded, and will occupy the same position it did before the judgment was rendered, with leave to the parties to take such action with reference to it as they may see fit'and is in accordance with law.

Judgment reversed, and cause

Remanded.