Lovell v. Wheaton

By the Oowri Wilson, Oh. J. The submission in this case having been properly executed, conferred jurisdiction on the arbitrators, and the filing of the award with the clerk, we think, gave the District Court jurisdiction. If the court thus acquired jurisdiction, it was competent for the parties to waive all objections to the award on account of formal errors and irregularities, and to authorize the clerk to enter judgment thereon at once, without confirmation by the court. Hughes v. Bywater, 4 Hill, 551; Yeates v. Russell, 17 John. 461; Daniels v. Willis, 7 Minn. 374; Farrington v. Hamblin, 12 Wend. 212. The errors complained of being purely formal and technical, affecting neither the rights of either party, nor the merits of the controversy, and the parties having expressly waived “all appeal, writ of error, and other review, of whatever kind, which might or could be taken of or from said award, and of or from said judgment,” neither can, legally or in good faith, question the award or judgment, except on account Of fraud. See authorities above cited. [100] "We think it is not essential to tbe validity of proceedings of this kind, under our statute, that a general term of tbe court should intervene between the time of the submission and return of the award. On account of the difference between the statute law in Massachusetts, and in this State, the authorities cited by respondents’ counsel are inapplicable in this case; In Massachusetts the statute requires the award to be returned to “ the oov/rt.” In delivering the opinion of the court in Burghart v. Owen, 13 Gray, 301, Bigelow, J., says : “ The Court of Common Pleas had no jurisdiction of the award in this case. It was not returned within the time limited by the submission, and the court had no authority to receive it afterward. The filing of the award in the clerk’s office within the year (the time limited by the submission for the return of the award) gives it no validity. By the express terms of the submission, under theBev. Stat., it must be returned to the court; this can only be done at a term or session. The clerk has no authority to receive it, nor are the parties required' to take notice of the award, or any proceedings under it, except in court.” It is manifest that our statute will not bear such a construction. By its express terms the award may be returned by a delivery or transmission “to the clerk” This return is sufficient, because the statute so provides. But if we wish to enquire as to the propriety or reason of the provision, the whole theory of our law furnishes ample and satisfactory illustration. "When the statute concerning arbitration was enacted, our law provided that in addition to the regular terms of the District Courts, the said courts should always be open for the transaction of any business which might be heard and determined by the court. In a case of this kind, the award might have been accepted and confirmed, and judgment might have been entered thereon as well in vacation as at a general term. In Massachusetts, where we presume such business could not be transacted save at a term of the court, and under a statute requiring a return to be made “ to the court” it is not difficult [101] to understand wby the courts should hold that such return could only be made at a term or session of the court, and that the clerk had no authority to receive the award. But to hold so in our State, would be in utter disregard of both the letter and reason of the law. Sec. 11 of the Arbitration Act provides that “ the court to which the award is returned shall have cognizance thereof in the same manner, and the same proceedings shall be had thereon, as if it had been made by referees appointed by a rule of the same court.” It has never been held, nor are we aware that it has ever been claimed, that a referee’s report can only be returned at a term of the court. The theory and design of our laws were that all such business — for the disposition of which a jury could not be required — should, or at least might be, transacted in vacation. In the language of the statute, the court was always open for the transaction of such business. "When our statute provides that the award shall be delivered or transmitted to the clerk, and that the time within which it shall be made and reported “ may be varied according to the agreement of the parties,” and when there is no reason for holding that it should be made at any particular time or at any term of the court, we think it is obvious that it was not the intention to require it to be made at any such term. Sec. 15 of the Arbitration Law provides, that “ the award may be returned at any term or session of the court that may be held within the time limited by the submission, and the parties shall attend at every such term or session without any express'" notice for that purpose, * * but the court may require actual uotice to be given, <fcc.” To this section we are referred, as being in conflict with the views above expressed. The word may, in statutes, means must, or shall, only in cases where the public interests or the rights of third persons require it to be so construed. Newburgh Turnpike Co. v. Muller, 5 John. Ch. R. 113; Malcom v. Rogers, 5 Cowen, 192; Blackwell on Tax Titles, (2d Ed.,) 615-16, and cases [102] there cited. Words are to be understood according .to their most known and popular use, and the primary and common use of the word may, is not imperative, but enabling only. Williams v. People, 21 N. Y. R. 108-9. No reason here existing to indicate the contrary, we must presume that the Legislature used the word in its popular and ordinary acceptation. By an examination of the other sections of this chapter, it will be found that this word is not used in an imperative sense — when that meaning is to be conveyed, the word shall, or rrmst, is invariably used throughout the chapter. The Legislature have thus given us a key to the sense to be attached to the word in the section referred to. We conclude, therefore, that though Sec. 15 permits, it does not require the return to be made at a term or session of the court, and that it is not necessary that such term or session should intervene between the time of the submission and return of the award. If the award is returned to the clerk within the time limited it is sufficient. It is argued that there was in law no award, it not having been attested by a subscribing witness. It is true that the award as made could not have been enforced, as it did not comply with the requirements of the statute, but we think it was not a nullity. By Sec. 8 of said chapter, it is provided that “ no award made after the time agreed upon, shall have any legal effect or ojieration.” Sec. 9 provides that “ to entitle an award to be enforced, it must be in writing, subscribed by the arbitrators, and attested by a subscribing witness.” An award that cannot be enforced is not, therefore, necessarily void, for it will be observed that the court may recommit or modify, which equally implies errors in the award, and jurisdiction in the court. The difference of phraseology in Secs. 8 and 9 above quoted, would seem to indicate that the Legislature did not intend to declare the errors or omissions mentioned in these sections equally fatal. An award not returned in time is declared to have “ no legal effect or operation,” while an award not attested by a subscribing witness is [103] “not entitled to be enforced.” No award that does not come up to the requirements of the statute is entitled to be enforced, but the court may modify or recommit such award ; while it may perhaps be true that an award that has “ no legal effect ” would not confer jurisdiction either to recommit or modify. Sec. 12, authorizing the court to recommit for a rehearing, is enabling, and restrictive, and doés not forbid a recommitment where a rehearing is unnecessary. Sec. 11, conferring the same power on the court over the award as if it had been made by referees, gives the court ample authority and power to recommit for such amendment as is here required, as well as generally. Blood v. Robinson, 1 Cush. 389. One other objection is interposed: The want of the proper revenue stamp on the submission papers or award. "We cannot say on,which the respondent’s counsel claims the stamp should be placed. W"e are unable to find any provision of the revenue law requiring such a stamp upon either. There was a stamp such as is required on “ an agreement ” placed on the submission ; but it is claimed that one of the papers was in the nature of “ original process,” and therefore subject to a stamp duty of fifty cents. The revenue law provides that a “writ, or other original process,” by which a suit is commenced in any court of record, shall be stamped with a revenue stamp of the denomination of fifty cents. There is no paper in this case that can, with any propriety, or in any legal or ordinary acceptation of the term, be called a “writ” or “other original process.” This objection, therefore, cannot prevail. The order appealed from is reversed.