Overby v. Thrasher

Montgomery, Judge. 1. The answer of the defendant in this case does not show that all the evidence which was submitted to the arbitrators was before the Court on the trial. As one of the grounds relied on by the defendants, on which to set aside the award, was that it was contrary to evidence, the evidence should not only be produced, but the record should show that it is all that the arbitrators had before them: Tomlinson vs. Hardwick, 41 Georgia, 547; Ibid., 16. 2. When the evidence is fully before the Court, it is a question of law for the Court, and not of fact for the jury, to say whether the finding of the arbitrators is contrary to the evidence or not, and this question should be determined by the Court, upon demurrer. Unless it is very strongly and decidedly against the evidence, the award should not be set aside on this ground. Indeed, so far as a mistake in calculation is concerned — and that is the principal ground on which the defendant insists the finding is contrary to evidence — it is questionable if that mistake should not appear on the face of the award: Watson’s Arbitration, 291, quoting Morgan vs. Mather, 2 Vesey, page 15; Comeforth vs. Geer, 2 Vern., 705, and other authorities. But that question is not now before us, and may not be true, under our Code. Certainly, the award is entitled, in this respect, to the same weight as a verdict, and the same rule .should govern as on a motion for a new trial on [22] this ground. Indeed, the award is more conclusive than a verdict: 41 Georgia, 20, 21. 3. So, to set aside the award on the ground of fraud on the part of one of the arbitrators, the proof of fraud should be distinct and clear. An award is intended by the law to be the end, not the beginning of litigation, and should not bo disturbed but for strong reasons which are plainly shown to exist: 41 Georgia, 547; Westmore vs. Forbes, 13 East, 358. 4. Advancements by a guardian to his ward are necessarily connected with his trust and must be taken into the account, else how can there be a settlement between them? When “ all matters and things growing out of or connected with such guardianship” are submitted to arbitration, the arbitrators necessarily look to the standing of the parties towards each other as individuals, the guardianship is at an end; the settlement is now to take place between the parties as individuals. Certainly, the excess of authority in this case, if it be one, is not such an one as the guardian can complain of. If the notes given by his wards had not been taken into the account by the arbitrators, the award must necessarily have been against him for that much more. The course pursued by the arbitrators has lessened their finding against him to the amount of the notes, and insured payment to him by off-setting them against an equal amount due by him to his wards. 5. That neither error of judgment on the part of the arbitrators will justify a Court of equity in setting aside an award, nor mistake of law or fact, unless gross and palpable, is settled in the case of Anderson vs. Taylor, 41 Georgia, 10. 6. The mistake of Judge Reese in supposing himself selected as umpire, instead of one of three arbitrators, and his, therefore, taking no active part in the deliberations of the other two arbitrators, except where they differed, can only be taken advantage of by the defendant, if at all, upon the ground that this was misconduct on the part of one of the arbitrators. Conceding it to be so, which is very doubtful, the defendant must prove it by other testimony than that of Judge Reese. He is excluded upon the same principle that prevents a juror [23] from impeaching his verdict: 4 Car. and P., 327; Shelling vs. Farmer, 1 Strange, 646; Gordon vs. Mitchell, 3 Moore, 241, (4 E. C. L. R., 432;) Ellmaker vs. Buckley, 16 Serg. and R., 72; Campbell vs. Western, 3 Paige, 124; Newland vs. Douglass, 2 Johns., 62. 7. .Defendant’s plea attacked the award, both for mistakes of law and mistakes of fact. The questions of law were for the Court, the issues of fact alone for the jury, under the charge of the Court as to the law applicable to those issues; as, for instance, that to justify them in setting the award aside, on the ground of mistake in the amount found against the defendant, the mistake must be plainly apparent, and not amount to error of judgment only. In short, that the mistake must be such as would have induced the arbitrators themselves, upon the assumption that they acted uprightly, to alter their finding, had they discovered it, or had their attention been called to it at the time. “ The- error in fact must, amount almost to misconduct:” Billing on Awards,#57, n. The mistake must be gross and palpable: 41 Georgia, 20. The first thing to be considered by the jury is, whether such strong proof of fraud, accident or mistake, or any fact which would make the award illegal; as infancy of one of the parties to the submission, for instance, has.been submitted to them to justify them in setting aside the award. If they find that issue in the negative, that ends their deliberations, and they should return their verdict in favor of the award. If in the affirmative, then the whole of the matters submitted to the arbitrators is open for their consideration and they should proceed to readjust the settlement between the parties; and, in order to enable them to do this, it 'is necessary, of course, for the parties, while submitting their evidence upon the issue as to whether the award should be set aside or not, to go further and introduce evidence upon the issues submitted to the arbitrators in order to enable the jury to pass upon them intelligently, should they find it necessary to reopen them. Equity having acquired jurisdiction, should retain it for the purpose of settling the whole controversy. A verdict merely setting [24] aside the award leaves the litigation at sea. Nothing is settled, and the party in whose favor the award was rendered has just cause of complaint and is entitled to a new trial, in order that he may have his rights passed upon. Judgment reversed.