Opinion · Supreme Court of North Carolina

Gibbs v. . Berry

35 N.C. 388

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1852-06-05
Topic
general

Nash, J. There is in this State no Statutory provision' on the subject of awards. It has been the practice, hi) wever, to enter up judgments upon, them in those cases where, by the common law, an attachment would have been granted for a disobedience of a rule of Court, that is, where the rule has been made by the Court, in a- cause pending therein. The writ in this case was returned and'the rule-regularly made. The first enquiry is, what was submitted to the arbitrators.

Citator

UpLaw has not yet analyzed Gibbs v. . Berry. The absence of a flag is not a finding that it is good law.

Cited by
1 opinion
GIBBSv. BERRY,35 N.C. 388(1852)
THOMAS R. GIBBS v. JOHN BERRY.
Supreme Court of North Carolina
(June Term, 1852.)
1. There is no statutory provision in this State upon the subject of awards; but it is the practice to enter up judgments upon them, in those cases where, by the common law, an attachment would have been granted for a disobedience of a rule of court, that is, where the rule has been made by the court in a cause pending therein.

2. An award must be certain, and this certainty must appear upon the face of the award. The award must also be final, as to all the matters submitted, so as to put an end to the suit.Page 265

3. But where, in addition to the general rule for arbitration, it was entered of record that "It is further ordered, by consent of the parties, that the said referees inquire and ascertain the dividing line of the lands of the said parties, and that they lay off and establish the lines which they shall ascertain, etc., and cause a correct plat to be made, etc.; and that the said parties, upon said dividing line being so established, make and execute such releases to each other that may be necessary and proper," and the referees made a report according to this submission,it was heldthat the court should not set aside this report, but leave it to the parties to assert their claims in a court of equity, as upon a contract.
APPEAL fromSettle, J., at Spring Term, 1852, of HYDE.
Trespass quare clausum fregit. Upon the return of the writ in the county court, where it pended, the cause was, by consent of the parties, referred to arbitrators, "and their award to be a rule of the court." The order then proceeds: "It is further ordered, by consent of parties, that the said referees inquire and ascertain the dividing line of the lands of the said parties, and that they lay off and establish the lines which they shall ascertain, etc., and cause a correct plat to be made, etc.; and that the said parties, upon said dividing line being so established, make and execute such releases to each other that may be necessary and proper." The arbitrators made their award, by which they ascertained the dividing line between the parties, had it marked, and returned (389) a survey and plat to the court. Upon the return of the arbitrators, a motion was made on the part of the defendant for judgment according to the award. This was opposed by the plaintiff on various grounds.First, because the award does not conform to the terms of the submission;second, that it is void for uncertainty;third, because the arbitrators have not awarded any judgment in the case submitted. Other objections were made, which are not stated, as not entering into the decision of the Superior Court. In the county court the exceptions to the award were overruled, and judgment awarded, from which an appeal was taken to the Superior Court, and the exceptions above stated were sustained and the award set aside, and an appeal granted to the Supreme Court.

[Copy of Award.]

STATE OF NORTH CAROLINA — Hyde County.

Pursuant of and in obedience to an order of the worshipful the Court of Pleas and Quarter Sessions of the county of Hyde, at its session, May Term, 1851, made in the case ofThomas R. Gibbs v. John Berry, Jr., we, R. M. G. Moore and Samuel Topping, having met on the premises and, after examining title papers and hearing testimony, have proceeded to establish the lines of the land of and between the said Gibbs andPage 266Berry, which lands, lying and being in the county of Hyde, and lying between Mattamuskeet Lake and Juniper Bay, and on the east side of and adjoining Juniper Bay road, and being in a patent patented by Abram Jones and John Eborn, a survey of said lands we have caused to be made, agreeable to the surveyor's plat hereunto annexed, and we have laid out and established the lines of the lands between the said Thomas R. Gibbs and John Berry, Jr., to be as follows, viz.: Beginning on the side of Juniper Bay road, at a stake or post standing 11 feet from the edge of and on the south side of a ditch, known as the hotel (390) ditch, running from thence S. 78 E. 165 poles to the back line of Jones and Eborn's patent; thence with the patent line S. 10 W. 152 poles to the patent corner, which said lines, we say, confirm, and establish as the true lines of land between said Gibbs and Berry, agreeable to the plat of survey, will show.

In confirmation whereof, we, the said R. M. G. Moore and Samuel Topping, have hereunto set our hands and seals, this 5 August, 1851; and we also further say that each party shall pay his own costs.
This 26 August, 1851. R. M. G. MOORE. [SEAL.] Witness: JAMES F. LATHAM. SAMUEL TOPPING. [SEAL.]
Donnell and Rodman for plaintiff.W. H. Haywood for defendant.
NASH, J.
There is in this State no statutory provision on the subject of awards. It has been the practice, however, to enter up judgments upon them in those cases where, by the common law, an attachment would have been granted for disobedience of a rule of court, that is, where the rule has been made by the court in a cause pending therein. The writ in this case was returned and the rule regularly made. The first inquiry is, What was submitted to the arbitrators? The action was for trespass to land alleged to be in the possession of the plaintiff, and for which he claimed damages of the defendant. The order is "that it be referred to R. M. G. Moore and Samuel Topping, etc., and their award to be a rule of court." The arbitrators are judges selected by the parties; and act in the place of judge and jury, and it is their duty to make such a return as will enable the court to enter up a judgment between the parties. To have this effect it must be certain, for the very end and object of the parties is to put an end to the litigation; for if uncertain, it would be a fresh source of litigation, and this uncertainty must appear upon the face of the award, for the court will not intend it.Page 267It must also be final, that is, be a final disposition of all the matters in dispute, and which are within the submission. In both these particulars the award is defective.

It is not final, for it does not put an end to the suit. It (391) awards nothing to be done by either of the parties; awards no damages to the plaintiff for the trespass, nor does it find that any trespass was or was not in fact committed by the defendant on any land of the plaintiff. Nor, for the above reasons, is it certain to a common intent. No judgment can, therefore, be pronounced upon it by the Court.

His Honor committed no error in refusing to give judgment upon the award. But he erred in setting it aside. That portion of the record in which the referees are required to run and mark the dividing line between the parties is no part of the rule in reference to the suit then pending; and although they have caused such line to be run, and had it marked, the Court can pronounced no judgment. A court of law awards damages for the breach of a contract; it cannot cause it to be specially performed. That portion of the record shows an agreement between the parties that such a line should be run by the arbitrators and marked; and upon its being done, they would execute releases. Being an agreement, each party has an interest in it, and through the medium of a court of equity can enforce a performance of it, or the one refusing compliance can, in a proper action at law, be made to compensate the other in damages. An award may be good in part and bad in part.

The judgment of the court setting aside the award is reversed and the cause remanded, with directions to proceed with the trial of the suit.

PER CURIAM. Reversed and remanded.Cited: Harralson v. Pleasants,61 N.C. 366;Millinery Co. v. Ins. Co.,160 N.C. 139.

(392)