Opinion · Supreme Court of the United States

Newcomb v. Wood

97 U.S. 581

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1878-12-18
Topic
general

How later courts describe this case

  • recognizing “[t]he power of a court of justice, with the consent of the parties, to appoint arbitrators and refer a case pending before it”
  • restitution for goods sold to bankrupt
  • “It has long been the established law in the courts of the United States that to grant or refuse a new trial rests in the sound discretion of the court to which the motion is addressed, and that the result cannot be made the subject of review upon a writ of error.”

Citator

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Cited by
97 opinions

Headnotes

  1. Federal Courts & Jurisdiction — Arbitration and Reference A court of justice has the inherent power, with the consent of the parties, to appoint arbitrators and refer a case pending before it; such a power is incident to all judicial administration where the court has authority to ascertain the facts as well as to pronounce the law, and an agreement to refer is not contrary to law or public policy.
  2. Federal Courts & Jurisdiction — Arbitration and Reference A State statute authorizing the referral of any or all issues in an action, whether of fact or law, upon the written consent of the parties or upon their oral consent in court entered upon the journal, validly supports a reference made pursuant to that authority.
  3. Federal Courts & Jurisdiction — Waiver A party that appears and goes to trial without objecting that the arbitrators or referees were not sworn waives that defect, and the waiver is conclusive; the same principle applies to the failure to swear witnesses.
  4. Federal Courts & Jurisdiction — Arbitration and Award Where an award is signed by only some of the referees but the party fails to raise the objection when the report is confirmed and judgment is entered, the omission is amendable and the objection is conclusively waived; it cannot be raised for the first time on appeal.
  5. Federal Courts & Jurisdiction — New Trial An agreement to submit a controversy to referees selected or approved by the parties implies that the parties intended the award to be final and conclusive, and does not entitle a party to a second trial by reason of State law.
  6. Federal Courts & Jurisdiction — Standard of Review To grant or refuse a new trial rests in the sound discretion of the court to which the motion is addressed, and the result cannot be made the subject of review upon a writ of error.
Mr. Justice SWAYNE

delivered the opinion of the court.

A few remarks will be sufficient to dispose of the several assignments of error in this case.

*583 The power of a court of justice, with the consent of the parties, to appoint arbitrators and refer a case pending before it, is incident to all judicial administration, where the right exists to ascertain the facts as well as to pronounce the law. Conventiofacit legem. In such an agreement there is nothing contrary to law or public policy. The Code of Ohio provides (sect. 281) expressly “ that all or any of the issues in the action, whether of fact or law, may be referred upon the written consent of the parties, or upon their oral consent in court, entered upon the journal.” 2 Swan & C. 1027. The reference here in question was made in the latter mode and by virtue of this authority.

The objection that the arbitrators were not sworn was waived by the plaintiff in error by appearing and going to trial without requiring an oath to be administered. If the witnesses had not been sworn, the waiver of that defect under the same circumstances would have been equally conclusive. Edwards, Referees, 107; Morse, Arbitration and Award, 172; Maynard v. Frederick, 7 Cush. (Mass.) 247.

Two of the three referees only signed the award, but the attention of the court was not called to the fact when the report was confirmed and the judgment was entered. The omission was amendable, and non constat but that the amendment could and would have been made if the objection had been suggested. It would be fair neither to the court nor the other party to permit the objection to be raised here for the first time. Under the circumstances, it must be held to have been conclusively waived, and the plaintiff in error cannot be heard now to insist upon it. Bell v. Bruen, 1 How. 169; Marine Bank v. Fulton Bank, 2 Wall. 252; Klein v. Russell, 19 id. 433; Edwards v. Elliott, 21 id. 532; Walker v. Sauvinet, 92 U. S. 90; Wheeler v. Sedgwick, 94 id. 1.

The plaintiff in error was not, by reason of the State law, entitled to a second trial. The agreement to submit the controversy to referees selected or approved by the parties implied clearly that they intended the award should be final and conclusive. The District Court held this view, and ruled accordingly. It has long been ,the established law in the courts of the United States that to grant or refuse a new trial rests in *584 the sound discretion of the court to which the motion is addressed, and that the result cannot be made the subject of review upon a writ of error. We cannot think that Congress intended by the act of June 1, 1872 (17 Stat. 197, sect. 5), to abrogate this salutary rule. Nudd v. Burrows, 91 U. S. 426; Indianapolis, &c. Railroad Co. v. Horst, 93 id. 291.

Judgment affirmed.