
    JULIA A. MITCHELL, administratrix, et al., plaintiffs in error, v. THE MAYOR AND COUNCIL OF BRUNSWICK, defendant in error.
    (Atlanta,
    June Term, 1870.)
    ARBITRATION AND AWARD—SETTING ASIDE—AFFIDAVIT—ALLEGATIONS MUST BE SPECIFIC.—In an affidavit filed to prevent the award of arbitrators, which has, by order of the Court, been entered upon its minutes, from becoming the final judgment of the Court in the cause, it is not sufficient to state in general terms that the award is the result of accident, mistake or fraud, or is generally illegal, the affidavit must state such facts of fraud, accident or mistake, or designate such illegality, as that the Court may see that the mistake, etc., did, if the statement be true, occur, and that it was material to the-issue.
    SAME—SAME —SAME —SUFFICIENCY OF AFFIDAVIT — WAIVER OF DEFECT IN PLEADING.—The affidavit must be such as that, if the other party should not deny it, the Court can intelligently pronounce that the award was the result of the fraud, accident, mistake or illegality charged, or no issue can be formed upon it, and no judgment of the Court can be rendered setting it aside. (McCay, J., dissents, not from the opinion, but from the grounds of the judgment, upon the ground that the defect in pleading was waived, and this Court, ex suo mero motu, could not insist upon such defect.)
    Pleading. Award. Before Judge Sessions, Glynn Superior Court. November Term, 1869.
    For the facts of this case, so far as necessary to understand the opinion, see the opinion.
    
      
      ARBITRATION AND AWARD—EXCEPTIONS TO AWARD —MUST BE SPECIFIC.—-“Where exceptions were filed to an award, returned and entered on the minutes, on the general ground that it was the result of accident or mistake on the part of the arbitrators, and the attempted specifications under this ground were vague and loose, and the evidence before the arbitrators was not given, and no full data were given from which the court could accurately determine whether such mistakes, in fact, existed; a demurrer to such exceptions was properly sustained. (Kaufman v. Myers.) 38 Ga. 135; (Sharp v. Loyless,) 39 Ga. 678; (Mitchell v. Brunswick,) 41 Ga. 370; (Black v. Harper,) 63 Ga. 752; (Hardin v. Almand) 64 Ga. 582; (Akridge v. Patillo,) 44 Ga. 585; (Barnesville Mfg. Co. v. Caldwell,) 48 Ga. 421.” Cox v. Mercer, 74 Ga. 399.
    
   By the Court—

BROWN, C. J.

delivering the opinion.

In this case, the award, which was for the defendants, was by order of Court entered upon its minutes. And on affidavit was filed by the plaintiffs to set it aside, because, they “say, that the award which is returned in the above stated case, is illegal in this, that as deponents are informed and believe, the said award is contrary to law and the evidence *in the case.” Upon this affidavit the defendant joined issue. And the whole evidence given in before the arbitrators was submitted to the jury, and the Court was asked to give certain charges, which were refused. The jury found a verdict sustaining the award, and upon this error is assigned.

We hold, that this whole proceeding, after the award was entered upon the minutes, was irregular and illegal. Arbitrament and award are favored by law, and an award will not be set aside, unless the law providing how it may be attacked, is strictly complied with. In Shaifer & Co., v. Baker & Caswell, 38 Georgia, 135, we laid down the rule, that it is not sufficient to state in 'general terms that the award is the result of accident, mistake or fraud, or is generally illegal; the affidavit must state such facts of fraud, accident or mistake, or designate such illegality, that the Court may see that a mistake, etc., did, if the statement be true, occur, and that it was material to the issue. And it is there said “it is plain that it was the intent of the Legislature to provide for some more precise issue than a mere general charge of fraud, accident, mistake or illegality.” And my brother McCay adds the following language in delivering the opinion:

“How can it appear that the award is the result of the mistake, unless the facts are set forth? There may have been a mistake, which was altogether immaterial, and the same of an accident or a fraud. Nothing is better settled than that Courts will not undertake to investigate mere general statements of this character. There must be a statement of facts, a setting forth of the circumstances, so that the Court can say, that if the facts are true, the mistake did occur and was material. The affidavit must be such as that, if the other party should not deny it, the Court can intelligently pronounce that the award was the result of the fraud, accident or mistake charged. Men differ so much about such things, that there is hardly a case in which the” losing party would not be ready to> make such general statements. An award is the judgment of men chosen by the parties, and their judgment ought not, except for good reasons, to fail to be final. The law favors arbitrations, and to allow the judgment to be arrested *and the matter reinvestigated by a jury, on such loose charges would be to fritter away the arbitration law entirely.” We fully endorse and reaffirm this language. There must be such a “statement of facts,” such a setting forth of “circumstances,” that the Court can say, if the facts set forth are true, the mistake did occur, or the illegality did exist. The affidavit must be such, that if the other party should not deny the statement made, the Court can intelligently pronounce that the award, if attacked for illegality, was illegal.

Now, if the other party, the Mayor and Council, in this case, had not denied the statement made in this affidavit of the plaintiffs, could the Court below, or this Court, intelligently pronounce upon the legality or illegality of the award, by an inspection of the affidavit? Clearly not. Not a single fact or circumstance is set forth, which even remotely tends to establish the illegality of the award. If so, what fact? What circumstance? Then the rule so clearly laid down by this Court, in the case referred to, and substantially reaffirmed in the case of Sharp and Brown v. Loyless, decided at last December Term; and in Jones v. Pane decided at this term, has not been complied with in this case. In Cobb v. Morris, also decided at this term, we held that: “In an issue formed upon an allegation, that an award of arbitrators was -made under a' mistake of the arbitrators, the general merits of the controversy are not in isspe, and it falls upon the party attacking the award to show the fact of the mistake; and it is not enough to show that the weight of the testimony is against the award, and from thence infer a mistake.”

In view of these repeated and well considered decisions of this Court, we hold that no such “suggestion of illegality” was made on oath by the plaintiffs as authorized an issue to be formed, or any further proceedings to be had in the Court below to set aside the award; and that the trial had, by which the “general merits of the controversy” were permitted by the Court to be gone into upon a general averment of illegality, was unauthorized and illegal. Section 41.83 of the Code provides, that the award, when entered on the minutes of the Court, shall have all the force and effect of *a judgment or decree of said Court, and may be enforced in the same manner, at any time, after the adjournment of said Court, and shall be final and conclusive between the parties, as to all matters submitted to the arbitrators, unless objection should be pleaded to the same, as is provided in the next section. The next section provides how the objection is to be filed,- and is the one upon which the rulings above quoted were made. If then, “the objections should not be pleaded as required by section 4184,” the Court has no right to hear any issue ■ formed upon it. But the award which is declared to be a judgment, final and conclusive, between the parties, stands in full force. It must be attacked in the manner prescribed by the statute, or it can not be done at all. And when so attacked, the case is not submitted to the jury, as was .done on the trial allowed by the Court in this case, upon its original merits, but the issue, as formed by the parties, is alone submitted. If the award is attacked for illegality, the “facts” or “circumstances” which show in what the illegality consists, must be distinctly stated, and the Court should confine the jury, on the trial, to the issue formed upon that statement; and it should not permit the case to be reheard upon its merits, upon a general charge of illegality. As that was done in this case, and as the whole proceeding was irregular and illegal, we hold the award to be of full force, as a conclusive judgment between the parties, no matter whether the charges given by the Court to the jury were correct or not. As the Court had no legal issue on trial, no charge that he could give the jury could affect the validity of the award to which no legal objection had been made.

It is time the people and the profession should understand that a submission of their rights to arbitration means something, that an award’ is not like the verdict of a petit jury, under our old system—the subject matter of an appeal, at the option of either party; but that it is a final judgment between the partits, unless objections are filed as provided in the statute. This Court has no jurisdiction to review a decision made by arbitrators. - Our jurisdiction is confined to errors committed, or alleged to have been committed, by the *Superior or certain City Courts. Till the award of the arbitrators has been legally reviewed in the Superior Court, we have no power over it. As the jury, on the trial below, found in favor of the award, though the trial was irregular and unauthorized, we affirm the judgment. Or rather, we hold the award, which was legally entered upon the minutes, to be the final judgment of the Court between these parties.

Judgment affirmed.

WARNER, J., concurred.

McCAY, J.,

dissenting.

Whilst I concur in the principles of law announced by the Court, in the decision of this case, I am not content with their application of those principles in this case.

At the term of the Court to which the award was returned, the plaintiff in error appeared and filed his objection under oath, as required by the statute, setting up that the award was illegal, because, as the objection says, it was contrary to law, and contrary to evidence. This objection the defendant in error denied; issue was thereupon joined, and the parties went to trial as the statute provides on that issue, to-wit: that the award was contrary to law, and contrary to evidence. The whole evidence produced before the arbitrators was read to the jury, and the jury, under the charge of the Court as to the law, sustained the award; that is, found it was not contrary to the law and the evidence. All this was strictly in conformity to the Code. Everything was done exactly as the law requires, with one exception—the specifications, the objections made to the award, were not under the rules of law, sufficiently specific; they ought to have pointed out why it was contrary to law; they ought to have set out the evidence, so that the Court might, if the other side did not dispute the facts, see that the award was in truth illegal.

But is not this neglect plainly mere matter of pleading? Was it not the duty of the other side to demur? If they saw fit to waive this requirement of the law and join issue on the affidavit as it stood, did they not have a right' so to do ? They *did not demur hut joined issue, went to trial, and having a verdict in their favor are satisfied. They made no point, on the sufficiency of this objection before the Court below, .at all; they make none here; they waived their right to do this below and they waive it here. After the argument had commenced, this Court, of its own motion, perceiving this defect in the pleadings, announced that it did not wish to hear arguments upon the merits of the case, , as it would affirm the judgment, on the ground that the award had never been legally attacked, and the whole trial was therefore illegal.

I am not prepared to say that the judgment of the Court below ought not to be affirmed. I am inclined to think it ought, on the merits, but the parties have not been heard on the question, and I do not feel free to decide the case without a hearing.

I cannot assent to the judgment of affirmance, on the ground taken by the majority of the Court. I do not think this Court has any jurisdiction over any matter which occurs in the Court below, upon which the Judge has made no decision.

I admit this attack upon the award was demurrable. But no demurrer was made, and the Judge below has not either expressly or by implication decided this attack upon the award to be good or bad. By joining issue, the plaintiffs in error1 waived the objection, and by not making the point, they waive it here. Is this Court to step in, overlook all the pleadings in a case, and without any complaint made by either party, right up the pleadings, make them conform to proper rules, and refuse to hear a case for informality in the pleadings in the Court below? Has not a party a right to waive defects in his adversary’s pleadings? Because the law says that no note or bill shall be denied unless under oath, will this Court deny to the plaintiff the right, if he so chooses, to join issue and go to trial on a plea of non est factum, though not under oath? If a bill in equity, plea or declaration be defective, has not the other side a right to waive the defect and go to trial? And is this Court to declare that such waivers shall not be made?

*The successful party in this award might have waived the whole award if he pleased. He might have admitted before the Court that it was illegal and void. .Cannot he consent that it may be attacked without the formalities required by law. In my judgment this is making the rules of pleading of entirely too much importance. If one were tried for his life on a defective indictment and convicted, and a new trial was moved for, because the jury found contrary to evidence, and overruled, and the case was brought to this Court for review, would this Court go behind the judgment and itself make a demurrer to the indictment, or even a motion in arrest of judgment? Surely not. Ought that to be done to sustain an award, which would not be done to save life?

For these reasons, I dissent from the direction the majority of the Court has given to this case, although I do not dissent from the principles announced as the decision of the Court.  