Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-06-17
In the Supreme Court

James Hackney, respondent, vs..
Thomas l.. Adam, appellant.
/. The parties to this litigation
by a valid agreement duly submitted
their differences to arbitration and an
award was made and filed in plain.
tiff's favor. That such reward is merl
torious is not questioned, but the ar
bitrators, deeming such award Vold
for their failure to take an oath as
required by the statute and to cause
the witnesses to be sworn, thereafter
proceeded on notice to make sec
ond second award which was made,
filed and affirmed and judgment en-
tered pursuant to an order OF the dis
trict court. From such Judgment and
from an order denying defendants
motion to vacate the second award
defendant appeals.
Held, /. That there is no compe-
tent proof showing Noncompliance
with the statute requiring an oath
to be taken by the arbitrators ana
recurring the witnesses to be sworn;
and, 2. Conceding such noncompll'
ance with the statute such Irregular
ties we're waived by the parties. Al
though both were present neither par
w objected in any manner to the
failure of the arbitrator to take the
| oath or cause the witnesses to De
! sworn, Where parties have appeared
before the arbitrator and submitted
their cause without calling attention
! to their failure to take the Oath or
cause the witnesses to be sworn and
have waited until an award has been
made and filed, they will be deemed
to have waived such irregularities.
2. By making and filing the first
award the powers of the board OF
arbitrators were exhausted and the
arbitrators became functus otticio.
Hence, the second award, is nudity,
but in view of the fact that sucn
award is identical in amount with the
first, with the exception of costs, the
order and judgment complained OF
are not prejudicial to appellant ex-
cept to the extent of the excess OF
| costs over those found in the first
award The judgment is modified to
, the extent of such excess OF costs
and as thus modified is affirmed.
3. While the first award has never
! been affirmed and the time has elaps
ed for making application for an or
der affirming the same, an action Will
lie in respondents favor on such
award under section ITO, R. c. 1905.
Hence, appellant would gain nothing
by a reversal of the judgment and
such reversal would, no doubt, mere
ly result in further litigation ending
in a Judgment in respondents favor.
4. 1t was not error, for reasons
stated in the opinion, to deny appel
lant's motion submitted April 20, 1908,
to vacate the order affirming the Sec
ond award even conceding the 1nVal-
idity of the first award.
5. The statute governing appeals
in cases triable to the court without
jury has no application to the case
at bar. We can review on this ap-
peal only the alleged errors of law
appearing in the record, duly except
ed to.
(Syllabus by the Court.)
Appeal from District Court, Eddy
County: E. T.. Burke, ].
Action by James Hackney against
Thomas L. Adam. From a judgment
in plaintiffs favor and from an order
DENYING defendants motion to vacate
an award of arbitrator, defendant
appeals.
/ John Knauf and James "A. Manly
for aDpellant. Maddux & Rinker, for
respondent.
Opinion of Court by Fisk, j., all
concurring, except Ellsworth, who
was disqualified.
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