Overton v. Alpha

Merrick, C. J. In one part of plaintiff’s petition he alleges that defendant is indebted to Mm in the sum of $469 87 on account. But as he immediately proceeds to state Ms cause of action as an indebtedness upon an award for precisely the same amount, ($469 87,) and the only account he offers in evidence is that stated by the arbitrators in their award, it is evident that this is really an action brought upon an award. The arbitrators were not sworn. The award, therefore, cannot be enforced against the defendant. C. C. 3078 ; 9 An. 89. Testimony was received as to 559 the declarations of the parties and the state of their accounts; but, as we differ from the District Judge in our conclusions upon the effect of the testimony, we think it best to render judgment upon the demand set up in plaintiff’s petition. It is possible that there may be some reason why the testimony of John Alpha should not receive full credit, although we have_ failed to perceive it in this record. It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of defendant upon the demand upon the award itself, without prejudice to any demands the plaintiff may have against the defendant up on the matters submitted to the arbitrators, and vice versa respecting the demands of the defendant against the plaintiff. And it is further ordered, that the plaintiff pay the costs of both courts.