Harper v. Commissioners of Roads & Revenues

McCay, Judge. 1. We see no reason why the law requiring ten days’ notice' of the time and place of the sitting of arbitrators, should not be construed like the law requiring service of a process. Even in a regular suit, if the party appear, he waives irregularities in his service : Code, section 3335. And this is a very just provision. Why should a party who has appeared before the arbitrators, taken part in the procedings, presented his books and vouchers, and made his statement, not be held estopped to say he did not have notice. He took the chances-of a decision in his own favor, and he ought not, when the decision is against him, be permitted to say he was not notified. It is a general rule of pleading and practice that parties must take advantage of defects in the proceedings, before any further action on their part. If they go on as-though all were right, they are held to waive the defect. 2. That an award is illegal because contrary to the testimony before the arbitrators, is plainly a question of law, and for the court to decide. It is not one of the issues to go before a jury, and, therefore, all the facts necessary to determine it, should be set out in the exceptions, to-wit: the whole of the testimony taken before the arbitrators. 3. Whether these receipts were, in fact, for proper payments, was a question for the arbitrators to decide. In a case-like this the officer who disburses public funds ought to have something more than loose receipts from men purporting to-have claims on the fund. The accounts of the teachers, properly verified, ought to be on file, and perhaps, if there was664 nothing before the arbitrators but the receipts, it would not have been illegal for them to have refused to notice any of them. The evidence shows that the attention of the plaintiff in error was called to the suspicious circumstances connected with these papers, and though he had every opportunity to bring forward his witnesses, lie failed to do it. Nor are we satisfied, even now, by anything in the record, that these receipts are evidence of any proper disbursement of the fund. That the parties giving them will swear that they never gave receipts without getting money, is a small matter. It should appear that the money was properly paid; it should appear not only that the men got the money, but that they were entitled to it. 4. Without doubt, this arbitration was conducted informally, but under the evidence on the points in the specifications that were not stricken out by the judge, we cannot think the finding of the jury wrong. If injustice has been done to the plaintiff in error, it has come from his own negligence in not having his vouchers properly sustained, either by the witnesses who gave them, or by the other papers, to-wit: the teachers’ accounts, properly verified and audited, which ought to be of file somewhere. Judgment affirmed.