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CHAPTER IV.–Of arbitrations.

SEC. 380. Who may submit controversy to arbitration ; and

exceptions. 381. Submission to arbitration shall be in writing. 382. Submission may be entered as an order of Court.

Revocation. 383. Powers of arbitrators. 384. Majority of arbitrators may determine any question ;

they shall be sworn. 385. Award to be in writing ; when judgment to be entered. 386. Award

may

be vacated in certain cases. 387. Court may, on motion, modify or correct the award. 388. Decision on the motion subject to appeal, but not the

judgment entered before motion. 389. If submission be revoked and an action be brought,

what to be recovered.

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§ 380. Who may submit controversy to arbitration, and excep

; tions.

Persons capable of contracting may submit to arbitration any controversy which might be the subject of a civil action between them, except a question of title to real property in fee or for life. This qualification shall not include questions relating merely to the partition or boundaries of real property.

1. The agreement of parties cannot divest Courts of their proper jurisdiction. Muldrow v. Norris, 2 Cal. 74.

2. The statute concerning arbitrations is but a reaffirmance of the common law, and gives to the parties no higher rights than they might have asserted in a Court of Equity in case of mistake, fraud or accident. The doctrine of Muldrow v. Norris, (2 Cál. 74) reaffirmed. Peachy v. Ritchie, 4 Cal. 205.

3. One partner cannot bind his copartner by a submission of partnership matters to arbitration; but such a submission would be good against the partner agreeing to it. Jones v. Bailey, 5 Cal. 345.

.

§ 381. Submission to arbitration to be in writing.

The submission to arbitration shall be writing, and may be to one or more persons. '

See $529.

1. To constitute a submission to arbitration under the statute, so as to give the award the effect of a judgment, the statute must be pursued in the manner in which the submission is filed with the Clerk, and the motion made for judgment on the award. Heslep v. City of San Francisco, 4 Cal. 1 ; Carsley v. Lindsay, 14 Id. 295.

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$ 382. Submission may be entered as an order of Court. Rerocation.

It may be stipulated in the submission that it be entered as an order of the County Court or of the District Court, for which purpose it shall be filed with the Clerk of the county where the parties, or one of them, reside. The Clerk shall thereupon enter in his register of actions a note of the submission, with the names of the parties, the names of the arbitrators, the date of the submission, when filed, and the time limited by the submission, if any, within

, which the award shall be made. When so entered, the submission shall not be revoked without the consent of both parties. The arbitrators may be compelled by the Court to make an award, and the award

may be enforced by the Court in the same manner as a judsment. If the submission be not made an order of the Court, it may be revoked at any time before the award is made.

1. A stipulation in the submission that neither party should appeal, and a power of attorney to confess judgment pursuant to the award, will not bar an appeal from a judgment on the award; especially under our system, where law and equity are blended together. Muldrow v. Norris, 2 Cal. 74.

2. The report of a referee, and the award of an arbitrator, are in all essentials the same.

Grayson v. Guild, 4 Cal. 122. 3. Where the parties entered into a submission to arbitration, in which it was stipulated that the award be entered as the judgment of the County Court: Hed, that it was void in toto, that Court having no jurisdiction over the subject matter of the award. Williams v. Walton, 9 Cal. 142.

4. Where a submission to arbitration is made an order of Court, under the Practice Act, the Clerk may enter judgment on the award, in due time, without any further order of the Court. Carsley v. Lindsay, 14 Cal. 390.

§ 383. Powers of arbitrators.

Arbitrators shall have power to appoint a time and place for hearing; to adjourn from time to time; to administer oaths to witnesses; to hear the allegations and evidence of the parties, and to make an award thereon.

$ 384. Majority of arbitrators may determine any question ; they shall be sworn.

All the arbitrators shall meet and act together during the investigation ; but when met, a majority may determine any question. Before acting, they shall be sworn before an officer authorized to administer oaths, faithfully and fairly to hear and examine the allegations and evidence of the parties in relation to the matters in

controversy, and to make a just award according to their understanding

1. Arbitrators have no common law powers when appointed in the mode provided by statute. Williams v. Walton, 9 Cal. 145.

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$ 385. Award to be in writing ; when judgment to be entered.

The award shall be in writing, signed by the arbitrators, or a majority of them, and delivered to the parties. When the submission is made an order of the Court, the award shall be filed with the Clerk, and a note thereof made in his register. After the expiration of five days from the filing of the award, upon the application of a party, and on filing an affidavit showing that notice of filing the award has been served on the adverse party or his attorney, at least four days prior to such application, and that no order staying the entry of judgment has been served, the award shall be entered by the Clerk in the judgment book, and shall thereupon have the effect of a judgment.

1. That the arbitrator did not act upon all the items or property of a partnership, is no ground for vacating his award. Certainly not, if the facts were not brought before him. Carsley v. Lindsay, 14 Cal. 390.

2. An award rendered upon a fair arbitration of a matter in dispute between two parties, and for a long time after concurred in, must be held to be conclusive. Jarvis v. Fountain Water Co., 5 Cal. 179.

3. An award bad in part may be enforced for the part that is good, if not attacked for fraud; and the matter is divisible. Muldrow v. Norris, 2 Cal. 74.

4. The Court will not disturb the award of an arbitrator unless the error complained of, whether of law or fact, appear on the face of the award. Tyson v. Wells, 2 Cal. 122, overruled, as to a report of a referee, in Cappe v. Brizzolara, 19 Cal. 607.

5. An award cannot be impeached because contrary to law and evidence. The Practice Act (Sec. 385, et seq.) prescribes the sole grounds to vacate an award by the Court, on motion. Carsley v. Lindsay, 14 Cal. 390.

§ 386. Award

may

be vacated in certain cases. The Court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, in its discretion :

1st. That it was procured by corruption or fraud;

2d. That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced;

3d. That the arbitrators exceeded their powers in making their award; or that they refused, or improperly omitted, to consider a.

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part of the matters submitted to them; or that the award is indefinite, or cannot be performed.

1 The rule is general that arbitrators must pass upon all matters submitted, or their award will be invalid. If several matters are specified in the submission, and the award does not disclose that each is determined, it is defective on its face, and can be set aside on motion. But if the submission is general of all matters in controversy, without specification, it is not necessary that the award should embrace any matters except those which are laid before the arbitrators. These last, how. ever, must be passed upon, or the award will be void in toto, and be set aside upon a proper showing of the omission. Muldrow v. Norris, 12 Cal. 331.

2. If the submission provide that an award upon the matters submitted be made, or the condition of the bond be that the parties are bound, provided the award of such matters be made, then such proviso extends to all the matters submitted, and operates to render the submission conditional, and the award binding only in case the arbitrators pass upon every subject, either specially referred to them, or brought to their notice under the general terms of the submission. Id.

3. Where one of the principal matters in dispute, passed upon by the arbitrators, was subsequently set aside by a higher Court, and the judgment rendered upon the award vacated by reason of the error of the arbitrators in passing upon said matter, it left the award as though such item submitted had never been passed upon; and consequently, the award did not effect the purposes of the submission by settling all matters of controversy between the parties. The consideration which moved the parties to enter into the submission had failed, and hence the award is void. Id.

4. The award being void, a release of action, filed by one of the parties in pursuance of the submission, is also void. Id.

5. The doctrine that an award may be good in part and bad in part applies to instances where there has been an excess of power in arbitration by their attempting to determine matters not submitted, or where there is uncertainty or illegality in an independent and distinct matter forming no consideration for other parts of the award, and the settlement of which could not have contributed to induce the arbitration. Id.

6. A useless and invalid determination upon one item properly presented within the general terms of the submission, must, on principle, be as fatal to the entire action of the arbitrators as an omission, intentional, to notice the item at all. Id.

7. Instance of an award not void for uncertainty. Carsley v. Lindsay, 14 Cal. 390.

8. When arbitrators have published their award, any alteration whatever, without the consent of parties, will vitiate it; and this, though the alteration was to fix certain amounts left undetermined in the award. Porler v. Scott, 7 Cal. 312.

9. It is the duty of arbitrators to pass upon the whole subject in controversy; and if the terms of the award render a further inquiry necessary to ascertain 3 sum to be paid, or an act to be done, it is void. Id.

10. Arbitrators, under a general submission, are not bound to decide according to direct law; but where they intend to decide according to law, a mistake apparent on the face of the award is fatal. Muldrow v. Norris, 2 Cal. 74.

11. Courts of Equity in the absence of statutes will set aside awards for fraud, mistake or accident; an award may be set aside for a mistake of law, when it appears on the face of the award. Id.

12. If arbitrators state the reasons of their award, it will be presumed they intend to decide according to law. Id. 79.

13. Where parties submit to an arbitrator they are presumed to know that his award will be final; and they must be required to exercise due diligence in procuring the evidence upon which to base a proper award. Monti fiori v. Engles, 3 Cal. 431.

§ 387. Court may, on motion, modify or correct the award.

The Court may, on motion, modify or correct the award where it

appears :

1st. That there was a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein;

2d. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matters submitted ;

3d. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded.

1. That the Court will not disturb the award of an arbitrator, or the report of a referee, unless the error complained of, whether of law or fact, appears on the face of the award or report. Tyson v. Wells, Cal. 122, overruled in Cappe v. Brizzolara, 19 Cal. 607.

2. Where the object of the submission is to make an end of litigation, and the award is uncertain and incomplete upon its face, it defeats the object of the submission, and must be set aside. Pierson v. Norman, 2 Cal. 599.

3. One of the arbitrators is a competent witness to impeach his award by giving testimony as to facts which occurred in a public hearing, and in the presence of the parties and of their counsel, and as to the decisions openly made by himself and his associates. (Van Cortlandt v. Underhill, 19 Johns. 411; Newland v. Douglass, 2 Id. 62); Cole v. Blunt, 2 Bosw. 116.

$ 388. Decision on the motion subject to appeal; but not the judgment entered before motion.

The decision upon the motion shall be subject to appeal in the same manner as an order which is subject to appeal in a civil action; but the judgment entered before a motion is made shall not be subject to appeal.

1. A stipulation that neither party will appeal is not binding. Muldrow v. Norris, 2 Cal. 74.

§ 389. If submission be revoked and an action brought, what to be recovered.

If a submission to arbitration be revoked, and an action be brought therefor, the amount to be recovered shall only be the costs and damages sustained in preparing for and attending the arbitration.

CHAPTER V.- Offer of the defendant to compromise the whole or a

part of an action.

$ 390. Proceedings on offer of defendant to compromise after suit brought.

The defendant may, at any time before the trial or judgment,

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