Bowie v. Tucker, 204 N.C. 505 (1933)

April 12, 1933 · Supreme Court of North Carolina

204 N.C. 505

T. C. BOWIE and E. A. McNEILL v. H. C. TUCKER, Trustee of the WEST JEFFERSON LAND COMPANY and H. C. TUCKER.

(Filed 12 April, 1933.)

Arbitration and Award D c — Where parties do not object to award it is error for court to remand same to arbitrators on its own motion.

Where the court submits a cause to arbitrators with the consent of the parties under an agreement that the award should be final, judgment should be entered upon their award in the absence of exception or objection by either party when the report does not show on its face that the arbitrators exceeded their authority, and it is error for the court of its own motion to remand the same to the arbitrators for the finding of additional facts.

Appeal by plaintiffs from Stacie, J., at October Term, 1932, of Ashe.

Error.

This action was first tried by a referee appointed by the court, who filed his report at July Term, 1932. By consent of the parties, the report of the referee was set aside, and together with the order of reference stricken from the record.

It was thereupon by consent of the parties ordered by the court that the issues raised by the pleadings and the entire controversy between the parties involved in the action, be and the same were referred to arbitrators named in the order for final determination. The arbitrators filed their report and award at October Term, 1932, of the court. The award was based upon findings of fact made by the arbitrators. No exceptions were filed by the parties or by either of them, to 'the report or to the award. Nor did either of the parties move for time within which to file exceptions.

The judge presiding, of his own motion, ordered that the report and award be remanded to the arbitrators, with directions to the arbitrators to find other and additional facts, and to determine the rights and liabilities of the parties upon these additional facts. ■

From this order the plaintiffs appealed to the Supreme Court.

R. A. Doughton for plaintiffs.

W. B. Austin and Ira T. Johnston for defendants.

ConNoe, J.

This action was referred by the court with the consent of the partiés to arbitrators to determine the issues arising on the pleadings and the rights and liabilities of the parties involved in the controversy out of which the action arose. It was ordered that the report and award of the arbitrators should be a final determination of all matters at issue between the plaintiffs and the defendants involved in the controversy. The report and the award filed with the court by the arbitrators does not show on its face that the arbitrators exceeded the terms of the consent order of the court by which they were named.

It was error for the court on its own motion, without objection or exception to the report and award filed by the arbitrators, to remand the same to the arbitrators, with directions that they. find • other and additional facts. In the absence of objection or exception filed by a party to the action, judgment should have been entered by the court on the award. Robertson v. Marshall, 155 N. C., 167, 71 S. E., 67; Snell v. Chatham, 150 N. C., 729, 64 S. E., 870; Herndon v. Ins. Co., 110 N. C., 279, 14 S. E., 742.

Error.