The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-06-16
DECISION OF The
SUPREME COURT

In the Supreme court, state of North
Dakota, April term, 1910. James Hack
ney respondent VS.. Thomas L. Adam.
appellant
1. The parties to this litigation by
a valid agreement duly submitted their
differences to arbitration and an
award was made and filed in plaintiffs
favor. That such award is meritor-
ious is not questioned, but the arbi-
traitors, deening such award void for
their failure to take an oath as re-
CURED by statute and to cause the
witnesses to be sworn, thereafter pro-
ceeded on notice to make a second
award which was made, filed and af-
firmed and judgment entered pursuant
to an orer of the district court From
such judgment and from an order
denying defendants motion to vacate
the second award, defendant appeals.
Held: l. That there is no COM
petent proof showing a non-compli-
ance with the statute requiring an
oath to be taken by the arbitrator
and requiring the witnesses to be
sworn; and, 2. Conceding such non
compliance with the statute such ir-
Irregularities were waived by the part
les. Although both were present Meth
er party objected in any manner to hte
failure of the arbitrators to take the
oath or cause the witnesses to be
sworn. Where parties have appeared
before the arbitrator and submitted
their case 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 ar
bitrators were exhausted and the arbi-
traitors became functus officio. Hence,
the second award is nullity, but in
view of the fact that such award is
idential in amount with the first, with
the exception of costs, the order and
Judgment complained of are not pre-
judicial to appellant except to the ex-
tent of the excess of costs over those
found in the first award. The judg-
ment is modified to the extent of such
excess of costs and as thus modified is
affirmed.
g.. While TIE first award has never
been affirmed and the time has elapsed
for making application for an order
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 re-
yersal would, no doubt merely result
In further litigation ending in a judg-
ment in respondents favor.
a
stated in the opinion, to deny appel
.ant's motion submitted April 20, 1908,
to vacate the order affirming the sec
ond award, even conceding the in
validity of the first award.
5. The statute governing appeals in,
cases triable to the court without a
jury has no application to the case at
bar. We can review on this appeal
only the alleged errors of law appear
ing in the record, duly excepted to.
(Syllabus by the court)
Appeal from district court. Eddy
county; e. T. Burke. ]. Action by
James hackney against Thomas L.
Adam. From judgment in plaintiffs
favor and from an order. denying de-
PENDANTS motion to vacate an award
Of arbitrators. defendant appeals.
Judgment modified and affirmed John
Knauf and James A. Manly for APP
pellant; Maddux & Rinker for re-
spondent. Opinion of court by Fisk j.
all concerning, except Ellsworth. T.,
who was disqualified.