NEWCOMB
v.
WOOD
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A party sought to challenge an arbitration award on grounds that the arbitrators were not sworn, that only two of three referees signed the award, and that they were entitled to a new trial under state law. The Supreme Court affirmed the judgment, holding that the party waived the defects regarding the oath and the missing signature by failing to object at the time of confirmation, and that the agreement to submit the case to mutually selected arbitrators implied the parties intended the award to be final and conclusive, precluding a new trial.
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Mr. Justice SWAYNE delivered the opinion of the court.
A few remarks will be sufficient to dispose of the several assignments of error in this case. The power of a court of justice, with the consent of the parties, to appoint arbitrators and refer a case pending before it, is incident to all judicial administration, where the right exists to ascertain the facts as well as to pronounce the law. Conventiofacit legem. In such an agreement there is nothing contrary to law or public policy. The Code of Ohio provides (sect. 281) expressly “ that all or any of the issues in the action, whether of fact or law, may be referred upon the written consent of the parties, or upon their oral consent in court, entered upon the journal.” 2 Swan & C. 1027. The reference here in question was made in the latter mode and by virtue of this authority.
The objection that the arbitrators were not sworn was waived by the plaintiff in error by appearing and going to trial without requiring an oath to be administered. If the witnesses had not been sworn, the waiver of that defect under the same circumstances would have been equally conclusive. Edwards, Referees, 107; Morse, Arbitration and Award, 172; Maynard v. Frederick, 7 Cush. (Mass.) 247.
Two of the three referees only signed the award, but the attention of the court was not called to the fact when the report was confirmed and the judgment was entered. The omission was amendable, and non constat but that the amendment could and would have been made if the objection had been suggested. It would be fair neither to the court nor the other party to permit the objection to be raised here for the first time. Under the circumstances, it must be held to have been conclusively waived, and the plaintiff in error cannot be heard now to insist upon it. Bell v. Bruen, 1 How. 169; Marine Bank v. Fulton Bank, 2 Wall. 252; Klein v. Russell, 19 id. 433; Edwards v. Elliott, 21 id. 532; Walker v. Sauvinet, 92 U. S. 90; Wheeler v. Sedgwick, 94 id. 1.
The plaintiff in error was not, by reason of the State law, entitled to a second trial. The agreement to submit the controversy to referees selected or approved by the parties implied clearly that they intended the award should be final and conclusive. The District Court held this view, and ruled accordingly. It has long been ,the established law in the courts of the United States that to grant or refuse a new trial rests in the sound discretion of the court to which the motion is addressed, and that the result cannot be made the subject of review upon a writ of error. We cannot think that Congress intended by the act of June 1, 1872 (17 Stat. 197, sect. 5), to abrogate this salutary rule. Nudd v. Burrows, 91 U. S. 426; Indianapolis, &c. Railroad Co. v. Horst, 93 id. 291.
Judgment affirmed.
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Citator
Cited By (20 total)
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Mattox v. United States, 146 U.S. 140 (U.S. 1892)…urt. The allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed, and the result cannot be made the subject of review by writ. of error, Henderson v. Moore, 5 Cranch, 11; Newcomb v. Wood, 97 U. S. 581; but in the case at bar the District Court excluded the affidavits, and, in passing upon the motion, did not exercise any discretion in respect of the matters stated therein. Due exception was taken and the question of admissibility thereby preserve…
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Fairmount Glass Works v. CUB Fork Coal Co., 287 U.S. 474 (U.S. 1933)…ee v. Bank of Indiana, 1 Wall. 592, 597-598; Freeborn v. Smith, 2 Wall. 160, 176; Sparrow v. Strong, 3 Wall. 97, 105; Ewing v. Howard, 7 Wall. 499, 502; Chicago v. Greer, 9 Wall. 726, 735; Insurance Co. v. Barton, 13 Wall. 603, 604; Newcomb v. Wood, 97 U. S. 581, 583-584; Railway Co. v. Heck, 102 U. S. 120; Springer v. United States, 102 U. S. 586, 595; Missouri Pac. Ry. Co. v. Chicago & Alton R. Co., 132 U. S. 191; Fitzgerald Constr. Co. v. Fitzgerald, 137 U. S. 98, 113; Holmgren v. United States, 217 U. S…
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Holmgren v. United States, 217 U.S. 509 (U.S. 1910)…sts in the sound discretion of the trial court and its action in that respect cannot be made the basis of review by writ of error to this court. Indianapolis &c. R. R. Co. v. Horst, 93 U. S. 291, 301; Kerr v, Clampitt, 95 U. S. 188; Newcomb v. Wood, 97 U. S. 581, 583. It is contended by the petitioner that a contrary view to that taken by the Circuit Court of Appeals in this case was taken .in Ogden v. United States, 112 Fed. Rep. 523, Circuit Court of Appeals of . the Third Circuit. In that case, however,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Walker v. Sauvinet, 92 U.S. 90 (U.S. 1875)
- Nudd v. Burrows, 91 U.S. 426 (U.S. 1875)
- Marine Bank v. Fulton Bank, 2 Wall. 252 (U.S. 1864)
- Bell v. Matthias Bruen, 1 How. 169 (U.S. 1843)