Readdy v. Tampa Electric Co. , 51 Fla. 289 ( 1906 )

ITocicer, J.,

(after stating the facts.) The record shows that after suit was brought there was an attempt by the parties to have the questions involved settled by a statutory arbitration as provided by sections 1221 to 1229 inclusive, of the Revised Statutes of 1892.

Section 1222 is as folloAvs: “An. arbitration may be made a rule of court by the parties filing in the court Avhicli Avould have jurisdiction of the controversy if it were not submitted to arbitration, a statement in writing signed by each party of the agreement of matters to be submitted to arbitration, and of the name of the arbitrator or arbitrators, and an umpire selected by them. T’lie clerk of the court (or the court if it have no clerk) shall record said statement in the minutes of the court, and thereupon the arbitrator or arbitrators and umpire shall have the powers hereafter specified.”

Section 1223 provides: “The arbitrator, or arbitrators, and umpire appointed as aforesaid, shall before entering upon the investigation of the matter submitted to them, be severally ©worn before some judge or justice of the peace faithfully and diligently to execute the trust committed by the submission; and the examination of all witnesses before the said arbitrator, arbitrators or umpire shall be under oath, and if the parties themselves be examined, such examination shall also be under oath, and in the presence of each other; and the said arbitrators, or either of them, shall be and they are hereby authorized and empowered to issue subpoenas to compel the attendance of witnesses, under the same regulataions as the clerks of the Circuit Courts of this State, which said subpoenas shall be served by the sheriff or any constable of the county, and shall be obeyed by the witnesses in the same manner as subpoenas issued from any court within this State.”

Section 1221 provides for compensation, of arbitrators, officer© and witnesses.

Section 1225 is as follows: “The award shall be in writing, signed by a majority of the arbitrators, or arbitrators and umpire, shall state the adjudication in full, and shall be filed and recorded in the court of which the arbitration is a rule. And the clerk of such court (or court if it have no clerk) shall give notice of the entry of the award, to the persons against whom the award is rendered.”

Section 1226 provide© how either party may apply by motion in the court of which the submission is a rule, to set aside the same.

Section 1227 provides that the submission shall be set aside by the court only on the ¡ground of fraud, corruption, gross negligence or misbehavior of one or more arbitrators or umpire, or of evident mistake acknowledged by the arbitrators or umpire.

Section 1228 provides that testimony by affidavits of the facts constituting the ground on which the motion is made shall be used in the hearing.

Section 1229 is as follows: “If any award be entered of record, so much thereof as decrees the payment of money by either party shall have the force and effect of a judgment from the day of entering said award, upon which execution may be issued as in cases of judgment duly entered; and so far as the award relates to' the performance of any other lawful act, the party failing to comply with said award shall be considered in contempt, and, by the order of court, shall be committed to prison, there to remain without bail until he shall comply with the order of the court in. the premises.”

It seems to be established law when parties resort to the ¡statutory mode of arbitration, as distinguished from the common law modes, that the requirements of the statute shall be substantially complied with; some courts holding that they must be strictly adhered to. These views are based on the doctrine that such statutes are in. derogation of the common law. Steel v. Steel, 1 Nev. 27; Monosiet v. Post, 4 Mass. 532; Heath v. Tenney, 3 Gray (Mass.) 380; Abbott v. Dexter, 6 Cush. (Mass.) 108; Burghardt v. Owen, 13 Gray (Mass.) 300; Henderson. v. Adams, 5 Cush. (Mass.) 610; Barney v. Flower, 27 Minn. 403, 7 N. W. Rep. 823; Northwestern Guaranty Loan Co. v. Channell, 53 Minn. 269, 55 N. W. Rep. 121; Kettleman v. Treadway, 65 Cal. 505, 4 Pac. Rep. 506; Foust v. Hastings, 66 Iowa 522, 24 N. W. Rep. 22; Dudley v. Farris, 79 Ala. 187; Low v. Nolte, 15 Ill. 368; Forman Lumber Company v. Ragsdale, 12 Ill. App. 441; Osborn & Walcott Mfg. Co. v. Blanton, 109 Ga. 196; 34 S. E. Rep. 306; 2 Am. & Eng. Ency. Law (2nd ed.) pp. 540 and 541; 3 Cyc. 602. This doctrine seems to be recognized by this court in O’Bryan v. Reed, 2 Fla. 448.

In Barney v. Flower, supra, it is said: “The jurisdiction of the arbitrators under the statute over the matter referred to them depends on a compliance with the statute. It is a special jurisdiction which can be created only in the manner prescribed by the statute. Every material requirement of the statute must be complied with.”

In Abbott v. Dexter, supra, it is said: “The jurisdiction of the arbitrators to make an award upon which a judgment of the court can be rendered, depends entirely upon the statute. It is a special jurisdiction created entirely by the statute, and can be sustained only by a compliance with the statute.” To the same effect see Macon & Western Railroad v. Davis, 13 Ga. 68. We have examined a number of other authorities and find the same principles recognized in them. There are cases holding that immaterial defects in the statutory proceedings before arbitrators may be waived by the parties, but we have discovered no case which holds that matter® which are in their nature jurisdictional can be waived. If such a case could be found it would se.em to be out of harmony with the weight of authority and with reason.

In the case of Macon & Western Railroad v. Davis, supra, the rule was applied which is applicable to courts of limited jurisdiction, viz: it must appear on the face of the proceedings that they have acted within the scope of their jurisdiction or their proceedings are coram non judioe and void (p 76).”

The record in. this case fails to show that the arbitration was made a rule of court by the parties filing in the court the statement required by section 1222 Revised Statutes of 1892, and fails to show the recording of the same in the minutes of the court as required in said section. This was a requirement which under the terms of the statute was jurisdictional and necessary to confer any powers upon the arbitrators or umpire. The record also fails affirmatively to show that the award was filed and recorded in the court as required by section 1225 Revised Statutes of 18)92, and also fails to show that the award has been entered of record and has the force and effect of a judgment as provided by section 1229 Rev. Stats. of 1892. There was, therefore, nothing in the record before the Circuit Judge, so far as the record here shows, which gave the arbitrators or umpire any statutory authority to act, and nothing upon, which he was authorized to make any ruling; for it is evident that the award was not pleaded or treated as a common law award. The established doctrine is that a writ of error must be dismissed when the record fails to show a final judgment.

It is considered and ordered that the wit of error be, and the same is, hereby, dismissed.

Taylor and Parkhill, JJ., concur. Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.