Kirby v. Heaton

*342 OTTO, J. The Springfield Court of Appeals having rendered in this cause a decision which all the judges therein sitting deemed contrary to a previous decision of the St. Louis Court of Appeals, rendered in the case of Taylor v. Franklin, a memorandum opinion of which appears in 9 Mo. App. 589, this case, in pursuance of constitutional provisions, Constitution of Missouri, was duly certified to this court. The opinion of the Springfield Court of Appeals rendered in this cause is reported in 253 S. W. p. 21. From a statement of the facts made by Bradley, J., it appears that the appeal is from a judgment on an award in a statutory arbitration. Respondent claimed that J. G. Kirby was indebted to her individually and also to her as the administratrix of her deceased husband’s estate for board, room, services and money furnished during a long period of sickness of J. G. Kirby at respondent’s home. The controversy between the parties was submitted to arbitration, but before judgment was given on the award, J. G. Kirby died, and the cause was revived in the name of the executor. The arbitrators made an award to respondent-in the sum of $4,000, and the circuit court confirmed this award and rendered judgment therefor, and appellant executor appealed. It appears that on August 3, 1920, respondent and J. G. Kirby, or as he is designated in the agreement to arbitrate, Green Kirby, entered into an arbitration agreement, which recites that various controversies existed between respondent in her individual capacity and as administratrix of her husband’s estate on the one hand, and the said Green Kirby on the other; that said matters in controversy related to the indebtedness of the said Green Kirby to respondent individually and to her husband, William Kirby, deceased. The parties therein agreed to submit all of said matters to a board of arbitration, which agreement named two arbitrators, one selected by each party, and provided that the two selected should select a third arbitrator. It was further agreed that a judgment should be *343 entered by the Circuit Court of Stoddard County for the amount of the award. Appellant makes several assignments of error, but when we look to the motion for a nevp trial we find but two points raised. First, that the order of confirmation was not made within one year after the publication of-the award; second, that there was no separate finding by the arbitrators showing the amounts due respondent individually and in her representative capacity. Section 603, Revised Statutes 1919, among other things, provides that no motion to confirm an award shall be entertained after the expiration of one year from the publication of the award. The award was made on July 27, 1921. Copy of the award and copy of motion to confirm were served on appellant on August 27, 1921, and this last-mentioned date may be considered, under the facts before us, as the date of publication. The award and motion to confirm were filed in the circuit court October 4, 1921. Appellant filed a motion to vacate the award. On October 4th the cause was passed to October 21st. On the last-mentioned date appellant filed affidavits, and respondent was granted twenty days to file counter affidavits. On December 5, 1921, the death of defendant, J. G. Kirby was suggested and the cause was revived against the executor. Summons was ordered for the executor returnable to the March term, 1922. This summons was duly served. At the March term the cause was set for May 8, 1922, during the same term. - On May 8th, the cause was submitted and taken under advisement until June 6th. On June 6th the cause was taken under advisement until the next term of court which was in September. During the September term, and on December 6, 1922, more than one year after publication, the motion to vacate was overruled, and the motion to confirm was sustained and confirmation and judgment entered. Section 603, Revised Statutes 1919, provides that no motion to confirm “shall be entertained after the expiration of one year from the publication on the award.” We construe this language to mean that after the expiration of one year from the publication no motion to confirm shall be filed. That is, if the party in whose favor the award is made fails to file a motion to confirm within one year from the date of publication, then the court will not entertain such motion. Keys v. Keys, 217 Mo. 48; 116 S. W. 537; and Rassieur v. Zimmer, 249 Mo. 175, 155 S. W. 24, rule on an analogous question. Those cases construe a section of the administration law as it was in the Revision of 1909. Section 195, Revised Statutes 1909, provided that a claimant “shall present his demand to the court” within two years, etc. It was held that a filing with the clerk was a presentation to the court within the meaning of the statute, and if so filed within *344 the two years it was not barred although not actually heard by the court until after the lapse of two years. It appears in the memoranda of the opinion in Taylor v. Franklin, 9 Mo. App. 589, that to give validity to the confirmation of an award it must be made within one year after the publication. We quote from a certified copy of the opinion in the case of Taylor v. Franklin, supra, as follows: “The principal question arises upon a proceeding to confirm a statutory award made and published by arbitrators on the 23rd day of September, 1874. This award was filed in the court below on the 20th day of September, 1875. A motion to vacate this award was filed by the appellant, but neither this motion nor the date of its filing appears from the bill of exceptions. On the 3rd of February, 1876, the respondent filed a motion to confirm the award. It is stated’in the record that this motion was filed by consent of parties and by leave of court nunc pro tunc as of September 20, 1875, and there is a memorandum of the clerk of the court below to this effect. On the 3rd day of June, 1878, the court overruled the motion to vacate the award and sustained the motion to confirm the award, and gave judgment accordingly, and at the same term the appellant filed a motion to set aside the judgment confirming the award and to dismiss the case. This motion being overruled an appeal was taken. “By'the 8th section of the chapter upon ‘Arbitrations and References’ (Wag. St. p. 144) it is provided that ‘no award shall be confirmed unless a copy thereof, together with a notice in writing of such motion, shall have been served on the adverse party at least fifteen days before the making of the same if such party be found; or if not, left at his usual place of abode, with some member of the family above the age of fifteen years; and no such notice shall be entertained after the expiration of one year from the publication of the award.’ If it could be fairly held from the facts that there was in the present case a motion filed by the appellant to vacate the award, and that the parties submitted, and the court overruled, this motion; that these-facts did away with the necessity of the proper service of notice of the motion to confirm the award, it would still be difficult to meet the last clause in the above section, which by negative words prohibits the court from entertaining the motion after the expiration of one year from the publication of the award. In spite of the fact that the motion to vacate was overruled, the motion to confirm was here entertained, and entertained after the expiration of one year from the publication of the award. This confirmation was essential to give the award validity under the statute and impart to it the effect of a judgment. There are reasons for the limitation of time prescribed by the 8th section which are *345 independent of the motion to vacate, and proceeding thereon cannot avail to supply deficiencies in regard to the motion to confirm the award. The proceeding is statutory and the question clearly relates to the jurisdiction of the court, ■ and its power to render a judgment. ’ ’ We hold the reasoning in the Taylor case unsound, and that the provision of Section 603, supra, to the effect that “no such motion shall be entertained after the expiration of one year from the publication on the award” should be construed to mean that the statute is complied with if the party in whose favor the award is made filed a motion to confirm within one year from the date of the publication of the award. Appellant is in no position to complain that there was no separate finding by the arbitrators of the amount due plaintiff individually, and in her representative capacity. On the point the award is as follows: “We, the said arbitrators, having first taken and subscribed an oath as such arbitrators as required by law, and having met together at various times and places and heard the allegations and proofs of the parties offered in regard to said matters, do now determine and award that in full settlement of all said matters the said Green Kirby is justly indebted to and should pay to the said Stena Kirby in her individual capacity and as Administratrix of the estate of said William Kirby, deceased (Italics ours), the sum of four thousand dollars after allowing all just credits to the said Green Kirby.” The agreement to arbitrate respecting the point reads: “Whereas, various controversies exist between the undersigned Stena Kirby in her individual capacity and as the administratrix of the estate of William Kirby, deceased; the said Stena Kirby in her individual capacity and as administratrix of said estate, being hereinafter designated as the party of the first part, and Green Kirby, hereinafter designated as the party of the, second part, said matters of controversy relating to the indebtedness of the party of the second part to the party of the first part in her individual capacity and as administratrix as aforesaid (Italics ours), and of the credits to which the party of the second part is entitled. ’ ’ The agreement then provides that “said parties do hereby agree to submit all said matters to a board of arbitration.” The agreement did not provide for a separate award. The award followed substantially the language of the agreement with respect to the point under consideration, and appellant executor cannot complain. [Koerner v. Leathe, 149 Mo. 361, 51 S. W. 96.] In Mitchel v. Curran, 1 Mo. App. l. c. 457, the court speaking of arbitrations in general, and also of the cause before them said: “As manifest corruption in the arbitrators will alone suffice to *346 set aside an award undér the statute; it is too late for those who, for purposes of economy, or to save time, or for any other equally laudable motive, have chosen to submit a controversy absolutely to a tribunal which is not bound by legal rules, to invoke the protection of those despised rules when mischief has been worked by the disregard of them. They must stand The hazard of the die. ... He who submits to arbitration takes his chances, and those who pass upon the controversy are the sole judges of the law and the facts, and their action, unless manifestly fraudulent, cannot be reviewed by the courts.” On the hearing to vacate defendant offered evidence by affidavits tending to show that the arbitrators did not in all things duly respect and regard his rights. Plaintiff offered counter affidavits. The circuit court ruled that the showing made to vacate was not sufficient. Section 604, Revised Statutes 1919, sets out the causes for which an award may be vacated. Said section is as follows: “Any party complaining of such award may move the court designated in the submission to vacate the same upon any of the following grounds: First, that such award was procured by corruption, fraud or undue means; second, that there was evident partiality or corruption on the part o'f the arbitrators, or any one of them; third, that the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear any evidence pertinent or material to the controversy, or any other misbehavior by which the rights of any party shall have been prejudiced; fourth, that the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final and definite award on the subject-matter was not made.” It will be observed that.the causes there set ,out all go to some wrongful conduct on the part of the arbitrators. In his motion to vacate defendant complained. of alleged wrongful conduct on the part of the arbitrators, and this point was before the circuit court, but in his motion for a new trial defendant made no complaint respecting the alleged fraudulent conduct on the part of. the arbitrators; therefore that question is not before us. From a perusal of this opinion it will be observed that we are persuaded to the views of this matter taken by the Springfield Court of Appeals wherein that court held in judgment the essential facts and propositions of law in this cause, and the principal and essentiai parts of the present record are taken from that opinion, which we herein adopt. The judgment of the trial court is, therefore, affirmed. It is so ordered.' All concur, except Graves, J., absent.