Sharp & Brown v. Loyless

Warner, J. It appears from the record in this case, that there was a certain matter in controversy between the parties, growing out of the sale of a warehouse and the cotton stored therein by Loyless, to Sharp & Brown. The parties agreed, in writing, to submit the several matters in controversy between them to three arbitrators, and that their award in the premises should be entered on the minutes of the Superior Court. [12] The arbitrators made up their award, which was duly entered on the minutes of the Court. Sharp & Brown moved the Court to have an issue formed, to try the validity of said award by suggesting, on oath, certain facts as stated in the record, under the provisions of the 4184th section of the Code, which declares that when an award shall have been returned and entered on the minutes of the Court, either of the parties may suggest, on oath, at the term to which said award is returned, that the award was the result of accident or mistake, or the fraud of some one or all of the arbitrators or parties; or is otherwise illegal, whereupon the Court shall cause an issue to be made up, which issue shall be tried by a special jury, under the same rules and regulations as are prescribed for the trial of appeals, etc. If, upon the trial of such issue, the jury shall return a verdict finding against said award on the specifications made in the issue submitted, the Court shall forthwith pass an order, vacating and setting aside said award. The suggestions made on oath for.the purpose of having an issue made up to try the validity of the award, were demurred to as being insufficient in law to set aside the award under the provisions of the Code, which demurrer was sustained by the Court below; and that is the alleged error assigned here. To entitle a party to attack an award, by having an issue made up for that purpose, under the provisions of the Code? he must first lay the foundation for such an attack, by suggesting, on oath “that the award was the result of accident or mistake, or the fraud of some one or all of the arbitrators or parties, or is otherwise illegal.” In order to entitle the party to have an issue made up and tried by the jury, he must make out a prima fade ease under oath. In other words, he must state such issuable facts under oath, which, if satisfactorily established on the trial before the jury, will be sufficient in law to set aside the award ; otherwise, his suggestions, made under oath for that purpose, will be demurrable. “ The office of a demurrer is not to deny the truth, but only the legal sufficiency of the. allegations demurred to. It, therefore, admits all such facts alleged by [13] the adverse party, as are well pleaded, and refers the question of law, arising upon them, to the Court.” Gould’s Pleading, 461. It is not alleged in the affidavit demurred to in this case, that the award of the arbitrators was the result of accident or mistake, or the fraud of the arbitrators or any one of them, or in what particular the award was illegal. .The special facts which constitute the illegality of the award should have been stated in the affidavit, as where arbitrators referred the matters submitted to them to chance or lot, etc. It is riot sufficient to state generally, that the award was against the weight of the evidence, or without evidence, unless the evidence submitted to the arbitrators is set forth and specified: for the jury are to return their verdict “on the specifications made in the issue submitted.” Code, 4185. The effort is to set aside the award, because the parties are not satisfied with the decision of the arbitrators to whom the matters in controversy were voluntarily referred by them, and not upon the ground that the award was the result of accident, mistake or the fraud of the arbitrators, or any one of them, nor upon any special alleged ground of illegality, on which an issue could properly be made before the jury. This question was before this Court in the case of Shaifer & Co. vs. Baker & Caswell, 38 Ga. R., and the ruling of the Court in that case was the same upon the general principles involved as we now hold in this case. The award of arbitrators is final and conclusive between the parties; unless it is attacked and set aside upon some one of the grounds specified in the Code, and the affidavit must state some of those grounds with sufficient precision, so that an issue can be formed and tried thereon before the jury. Let the judgment of the Court below be affirmed.