S. Shultz & Bro. v. Lempert , 55 Tex. 273 ( 1881 )

Gould, Associate Justice.

We have been embarrassed in this case because the record is confused, leaving it somewhat uncertain what attitude the case occupies. After suit brought, and answer and cross-bill filed, there was an agreement under the statute to arbitrate, re? serving, however, a right of appeal. An examination of the statute makes it plain that by this right of appeal is meant a right, on making written and timely application therefor, and having the opposite party served with citation, to have the cause “stand for trial de novo, as in ordinary cases.” R. S., arts. 51, 52.

Trial de novo does not mean a trial on appeal and on nothing but the record to correct errors, but does mean a trial of the entire case anew, hearing evidence, whether additional or not. Moore v. Hardison, 10 Tex., 471. Strangely, yet clearly, the statute allows the parties, by reserving the right of appeal, the power of nullifying the award, if dissatisfied therewith, and of having the case tried anew without regard to the agreement to arbitrate or the award made. With this right of appeal reserved, the arbitration becomes nothing more than an experimental attempt to satisfy both parties; and when the failure of that attempt is shown by the application and citation before spoken of, the case stands for trial as if there had been no agreement to arbitrate. If no right of appeal is reserved, and the agreement, proceedings and award are in substantial compliance with the statute, then the award will, on motion, be made the judgment of the court, unless indeed it be impeached on equitable grounds, such as fraud or gross mistake. Fischer v. R R. Co., 16 Tex., 531-2; Payne v. Metz, 14 Tex., 56. On questions of fact the award, unless so impeached, is conclusive. Moore on Arbitration, pp. 315, 316. The utility of arbitration depends much on its conclusiveness. Omitting the right of appeal, the statute affords a mode of settling disputes promptly and conclusively, and yet leaves the award open to be objected to when it is in excess of the authority granted the arbitrators, or to be impeached on grounds of fraud, corruption or gross mistake.

Examining this record we see that there was an award, and that, on motion, that award was made the judgment of the court. It does not appear that there was any application for appeal made, but, so far as the record shows, the award was made the judgment of the court without objection. A motion for new trial appears to have been made, but it does not appear that there ever was properly any trial de novo -in the district court. The motion for new trial was overruled and there was an appeal to this court. It certainly would require great liberality of construction to treat this record as showing a trial de novo had in the district court, and the case as before us on appeal from the judgment rendered on such trial.

If not thus before us, the case is simply here as on appeal from the action of the district court in making the award the judgment of the court, and unless, upon the face of the award or proceedings, some irregularity or deviation from the statute, or some excess of the authority given the arbitrators, appears, the court below did not err, and its judgment should be affirmed.

But even if the case be regarded as here on appeal from a judgment on a trial de novo, we are of opinion that the judgment should be affirmed.

What purports to be a statement of facts is of questionable validity as such. As, however, it has not been objected to by either party, the case will be disposed of treating it as a valid statement of facts.

The main question in this case, not settled in the preceding case of Duke v. Lempert et al., is as to the right of appellants to pay for improvements. The arbitrators and the court found that the improvements were not made in good faith. Although it may be that we would have been better satisfied with a different finding, we cannot say that the finding is clearly wrong. The parties bought with knowledge of the claim of defendants. True, that knowledge was not conclusive against their good faith in purchasing and improving. But it is sufficient, under all the evidence, to support a finding against them on that issue.

In regard to the question of parties, the record shows that the parties in whose favor the award and judgment are rendered were all parties to the agreement to arbitrate. We think that thereafter they were all properly regarded as parties to the suit.

The award was objected to because Duke was not a party to the suit, and yet the award is that Duke had no just title to the land. The obvious and unavoidable implication from the award is, that the arbitrators find that the plaintiffs, whose only title came from Duke, have no title, and that the defendants had the better claim. Moore on Arbitration, p. 253. It is no valid objection to the award that it is bad in a point not affecting the parties, if the good portion be separable from the other, and be complete in itself. Id., p. 453. Duke is not here complaining; and in our opinion the award is, as to the question of title, a sufficient finding against appellants.

Appellants say there is fundamental error because the case appears to have been tried by a special judge, and the record nowhere shows the disqualification of the district judge, or the agreement authorizing the special judge to sit. This objection presupposes that the special judge was selected by agreement, or appointed by the governor for the trial of this particular case. He may have been elected by the practicing lawyers present, because of the absence or inability of the judge of that district. In the latter case the statute contains no requirement that the facts showing the election and qualification shall be a part of the record of each case tried by that judge, although they are required to be entered on the minutes of the court. R S., arts. 1092-1098, inclusive. Properly, the record should in all cases show how the special judge had authority to act; but we are not of opinion that a party who has, without objection, participated in a trial before one purporting to be special judge, but not purporting to be so by agreement of parties, or by appointment for the special case, can afterwards be heard to object, on appeal, that the authority of the special judge does not appear.

Another error claimed to be fundamental is, that there was no pleading of defendants setting up the boundaries of their claim, and authorizing judgment for the two and one-half acres in controversy. The claim of defendants as set up in their pleadings, and as finally surveyed, covered the one hundred and sixty acres patented to Duke, and included the two and one-half acres claimed by plaintiffs under a purchase from Duke. The boundaries of the two and one-half acres were given by plaintiffs in their petition, and it was unnecessary for defendants to repeat them. The judgment is affirmed.

Affirmed.

[Opinion delivered May 20, 1881.]