Hollingsworth v. Willis

Cooper, C. J., delivered the opinion of the court. . The appellee sued out a distress warrant against J. A. and G. W. Hollingsworth for the collection of rent and the price of supplies advanced by him for them. Jn his affidavit he stated that the tenants were indebted to him in a certain sum for rent in arrear, and that they were indebted to him in a certain other sum for supplies advanced, and that he had good reason to believe, and did believe, that the tenants would remove their effects from the leased premises before the rent would become due, so that no distress could be made therefor. On this affidavit a distress warraut was issued and levied. The tenants replevied the property, giving bond with McKinney & Bernard as sureties. In the circuit court the plaintiffs declared in replevin, and to this the defendant filed an avowry justifying the taking as one made for rent due and in arrear. The plaintiffs thereupon moved the court for judgment because of a departure by the avowry from the right set out in the affidavit. [156] On the hearing of this motion the court permitted the defendant to amend his affidavit by striking therefrom the allegation that he had cause to believe, and did believe, that the tenants would remove their goods from the demised premises before the rent would become due, and to this exception was taken by the plaintiffs. After, several terms of the court had passed it was agreed between the parties to efer the matters in controversy to arbitration under § 2410 of the code, which provides that “ in all suits or actions in any court in this State, whether at common law or in chancery, it shall, be lawful for the plaintiff and defendant to consent to a rule of court for referring all matters in controversy between them to the arbitrament of any person or persons who may be mutually chosen by them; and the award of such referee or referees, being made and returned according to the rule or submission of the parties, and approved by the court and entered of record, shall have the same effect as the final judgment or decree of the court into which such award may be returned, and execution may issue thereon accordingly.” By § 2412 it is provided that an award so made may be for certain causes vacated by the court, “ so as complaint, etc., be made before the end of the term of the court next after such award be made and returned to such court.” By the order of submission the cause was referred to A. J. Phelps and Chris. Hauser, and it was provided by the order that if they should fail to agree, they should select an umpire who should decide the matters; and it was further ordered that if either of said arbitrators shall refuse or be unable to act, “ then the party selecting him shall appoint some other person in his place.” The arbitrators failed to agree and Selected an umpire, who made an award in favor of the defendant, which award was returned and filed in the court several days before its next term. At that term the plaintiffs moved the court to set aside the award, which motion was heard and overruled by the court, and at the same term a final judgment was entered by which the plaintiffs and the sureties on their bond were directed to restore the property within ten days, or, in default thereof, to pay to the defendant its value, as found by [157] the umpire. From the final judgment this appeal is prosecuted, and the appellants assign for error the action of the court in permitting the .amendment to the affidavit on which the distress warrant was issued, in overruling the motion to set aside the award, and in rendering judgment final at the first term of the court after the return of the award. Counsel for appellants are mistaken in assuming that the affidavit for rent as originally made was for rent not due. It is true, it states for rent “ in arrear,” instead for rent “ due and in arrear,” in the words of the statute'; it is also true that the affidavit contains an averment that the affiant had cause to believe, and did believe, that the tenants would remove their effects from the premises before the rent would become due. But an affidavit that rent is “ in arrear ” is an affidavit that it is overdue and unpaid. The definition of the word “arrear,” as given by Webster, is “that which is behind in payment, or which remains unpaid though due.” Worcester’s is, “ that which remains unpaid after it is due.” It may, therefore, be conceded for the purposes of this ease, that the court could not permit an affidavit for distress to be amended, for what was done did not in any manner change the import of the affidavit or its legal effect. • . ‘ The bill of exceptions does not show what, if any, evidence was introduced on the motion to vacate the aivard. It states that on the hearing of the motion the “ plaintiffs read the following affidavits, marked 1, 2, and 3 (the clerk will here insert them)but they are not inserted, and though certain affidavits do appear copied into the record, they nowhere appear in the bill of exceptions, nor do any appear at all marked 1, 2, or 3. By repeated decisions of this court they cannot be considered here. George’s Dig., tit. Bill of Exceptions, III. The objection -that the court could not render judgment on the award • until the end of the term next following its return is not well taken. The award was returned before the term of the court began, and the plaintiffs invited action upon it by their own motion. The court rightly assumed that they rvere then prepared to urge all objections which they expected to make. It was never contení- [158] plated by the statute that a party should try his case by piecemeal, and the tenants having submitted their objections to the award on grounds then deemed sufficient, cannot complain that opportunity was not given to them to make another contest. No injury will be done to the tenants by limiting the time within which return should be made of the property attached, for whether returned or not, they were liable for 'the full amount of the debt found due to the landlord. If there was error in this as to the sureties, it cannot now be considered, since they have not appealed. The judgment is affirmed.