Lamar v. Nicholson

COLLIER, C. J. — This cause came to this court by writ of error from the Circuit court of De Kalb. The cleric of that court certified with this case, the transcripts of the records of three several actions at the suit of the defendants in error, against the plaintiffs, for malicious prosecutions. Pending these actions, the parties, without any notice being taken of them, entered into a joint submission of “the claims made” by the defendants against the plaintiffs, to two arbitrators of their own. choice, who, in the event of their disagreement, were au-thorised to choose an umpire, “ the report of whom, or the major part of whom, being made as soon as may be, to any Court of record of said county, judgment thereon to be final,” &c. The agreement was acknowledged before a justice of the peace, and the arbitrators being unable to agree, an umpire was chosen, and an award signed by the arbitrators and umpire. The award, after [165] directing the plaintiff, James Lamar, to make suitable acknowledgments to the defendants for the outrage upon their feelings, directs “ that he shall pay all costs in the aforesaid cases, and also the sum of four hundred dollars, as damages.” The County court of De Kalb rendered a judgment for the sum awarded in favor of the defendants against the plaintiffs, which judgment, on writ of error, was affirmed by the Circuit court. Whatever may have been the intention of the parties, or what they in fact did, the record furnishes nothing to inform us that the suits then pending for malicious prosecutions, were actually submitted to arbitration. “ The claims madé” by the defendants against the plaintiffs, are stated to be, the matters on which the arbitrators were to decide; but the nature of these claims no where appears. The titles of three cases are written immediately preceding the award, and by the award itself, James Lamar is directed to pay the costs of them; yet we cannot know any thing of these cases, as they are not particularly characterised in any part of the record which properly belongs to the case before us. And we are not authorised to look into the records of the actions attached to the writ of error, for the reason already stated, that they are not recited in the agreement of submission. All the assignments of error, then, having reference to those suits, must be disregarded. The reference to arbitration certainly does not conform to the acts of eighteen hundred and nineteen, eighteen hundred and twenty, or eighteen hundred and' twenty-four, — the two former of which requires the agency of a Court of record, or its clerk, as a preliminary step. The [166] latter declares, that it shall be lawful, where persons have a dispute which they are desirous to adjust, to make out a particular statement thereof, under their hands, in writing, &c. The justice of the peace is then to draw up an agreement for the signature of the parties, which, when signed, they are to acknowledge be-, fore him. Here no written statement, as prescribed by this statute, was drawn up previous to the agreement of the parties, and upon the authority of Davis vs McConnell, (3 Stew. R. 492,) no judgment could have been rendered upon the award on motion rnerely; but if good at common law, it might be made the basis of an action. But this objection not being taken in the Circuit court, cannot be made available here, where we are only reviewing the correctness of the jiidgment of that court. It was clearly irregular to render judgment against the wife, when she was not subjected by the award to the payment of any sum. either separately or in connection with her husband. An award, where the submission has been made pursuant to statute, is a warrant for the judgment of the court, quite as much so, as the verdict of. a jury would be; and like the latter, must be followed by the judgment, both as it regards the amount and thé parties charged. The other errors assigned, either do not arise upon the record, or are disproved by it. The objection last noticed was the only error presented to the view of the Circuit court, and, in disregarding it, that court erred. Its judgment is therefore reversed, and the cause remanded to the Circuit court, that the judgment of the County court may be there reversed.