Snodgrass v. Armbrester

McCLELLAN, J. Technically, an order of court directing, by consent of psarties, the arbitration of matters involved in a pending suit, is not a submission to arbitrators, but a reference of the cause as presented by the pleadings. Upson such reference, there is no* office for the written submission entered into by the psarties to perform. If the matter in controversy already sufficiently appears from any psart of the record — and it does sufficiently appsear from the compslaint, or statement of the cause of action, in every psending suit — any further statement-of it in writing is unnecessary.—Mendenhall v. Smith, Minor, 380; Chapman v. Ewing, 78 Ala. 403. This is made to appsear more fully by reference to the act of 1819, which psrOvides for the apspointment of arbitrators by the psarties for the settlement of -any suit or controversy, “and (if no suit is pending) the psarties shall concisely state in writing the nature of the controversjq” &c., &c.; and this distinction as to the necessity for a written submission stating the matter in dispute, is preserved in our present Code, §§ 3221, 3222, 3223. The objection to the award in this case, on the ground that the parties did not “concisely state in writing, signed by them, the matter in dispute between them,” is, therefore, not tenable, no such statement being required when the arbitration is had on an order of reference in a piending suit. The only other objection made is predicated on the fact that, one of the arbitrators originally agreed on having declined to act,'another was substituted by agreement of parties, and no memorandum of the substitution was made on the submission, as required by section 3225 of the Code. The submission here referred to is that concise statement of the [495] matter in dispute and the names of the persons selected as arbitrators, provided for by section 3225. There was no such statement in this case, as we have seen, nor was any required. The memorandum, therefore, could not be entered upon it, if that be required in any case where the substitution is made by the parties. Nor do we think it was essential that the agreement to substitute should have been in writing. That would be necessary, where the original arbitrators are required to be named in the written statement signed by the parties. But, where, as here, the reference is of a pending suit, and by an order of the court, no such written statement of the names of the persons first selected is required, or was made in this case. It is sufficient if the persons be orally agreed upon, and orally suggested to the court in the first instance; and upon the failure of one so selected to act, our opinion is, that a substantial compliance with the law is shown, when the parties agree on the person to be substituted, and their agreement in this behalf, and the name of the person to be substituted, are recited and stated in the award, as was done here; and nothing more than substantial compliance with the statute is essential to the validty of the award. — Code, §3232; Chapman v. Ewing, supra. We find no error in the record, and the judgment must be affirmed.