Tankersley v. Richardson

By JUDGE COLLIER. Five several matters, assigned for error in this cause, are presented for our consideration. By an act of 1807, c entitled “an act establishing Superi or Courts, and declaring the powers of the Territorial Judges,” the clerk or plaintiff’s attorney, is directed to endorse on the writ the cause of action, and the sheriff is di [132] reeled on executing the writ, to deliver to the defendant a copy of the endorsement. The statute does not consider the endorsement as an essential constituent of the suit: it rather -seems to consider them as distinct, yet, at some stage of the proceedings, perhaps dependent for their legal offices on each other; without therefore pretending to determine how far such objections as appear on the original process, are available on error, the Court have no difficulty in attaining the conclusion, that an exception cannot be taken to the want oí an endorsement, after the return term of the writ. The sufficiency of the second assignment depends on the consideration which the Court may give to those that follow; if the award is sustainable, there cannot be a doubt, that no declaration is required The adjustment of controversies and subs by arbitration, is a species of remedy much favored by legislation; so much so, that, not only what can be, is intended in its favor, but it will not be permitted to be impugned .for any ex t-rinsic cause; unless it be founded in corruption, partiality, or other undue means. This is the consideration in which awards are holden in the Courts to which thev are returned. This Court must,’ in accordance with a rule repeatedly laid down, not only intend in favor of the award, but of the judgment below, every circumstance or point which the record warrants, that is necessary to legitimate the action of the Court. It may infer, that the award was made the judgment of the Court, (the reverse not appearing,) by the consent of the parties; and if it was, an order of reference is dispensed with, and the judgment is tantamount to a judgment by confession, and cannot be erroneous in point of fact. It is however the opinion of some of the members of the Court, that the entry on the record, preceding the award and judgment, is in itself an order to refer the cause. It is needless to inquire, whether the entry of the reference and judgment is sufficient, within the act of 1799, entitled an act concerning defalcation, a as it may well (and perhaps most rationally) be intended, that the judgment was by consent. The fourth and fifth assignments, are not, it is conceived, sustained by the record. The identity of the parties in the writ and judgment sufficiently appears. The caption of the record shews when the judgment was rendered, and it appears from other facts in the record, that the writ of error is not barred by the statute of limitations. [133] The Court are therefore of opinion, that the judgment below must be affirmed. The Chief Justice, not sitting. Note. — Seethe case of Mendenhall v. Smith, Minor’s Ala. Rep. 380; also, 1.Stewart’s Rep. 152,244. Footnotes [c] Laws Ala.453. [a] Laws of Ala. 457.