attorney, at least four days prior to such application, and that no order staying the entry of judgment has been served, the award must be entered by the Clerk in the judgment book, and thereupon has the effect of a judgment. NOTE.-If the arbitrators award that one of the parties shall pay to the other a sum certain, and also that the parties shall deliver to each other mutual releases, the tender of a release, as provided by the award, is not a condition precedent to the right to bring an action to recover the money. The award of money is absolute and unconditional, but the award of releases is different, for they are concurrent acts, and neither party can compel the other to execute a release without the tender of a release by himself.-Dudley vs. Thomas, 23 Cal., p. 365. Award not void for uncertainty, and cannot be impeached because contrary to law and evidence. This Title prescribes the sole ground for vacating the award: Where arbitration is made an order of Court, the Clerk may enter judgment on the award in due time, without any further order of the Court (overruling Heslep vs. San Francisco, 4 Cal., p. 1).-Carsley vs. Lindsey, 14 Cal., p. 390. It was held that the ordinary mode of enforcing an award is by action, and if no provision existed authorizing the Court to enter judgment on an award upon motion, the Court has no right to proceed in that way; and a consent to submit a matter to arbitration does not imply a consent that the party in whose favor the award is made may enter judgment upon it in Court as a matter of course.-Gunter vs. Sanchez et al., 1 Cal., p. 45. The award of an arbitrator will not be disturbed by the Court unless the error complained of appear on the face of the award.-Tyson vs. Wells, 2 Cal., p. 122; but see this case modified in Cappe vs. Brizzolara, 19 Cal., p. 607. Where a judgment on an award of arbitrators is entered by the Clerk, at the request of the party in whose favor it is rendered, within less than five days after the award is filed, and without notice to the other party, the prevailing party cannot afterwards attack its validity on the ground that it was irregularly entered.-Hoogs vs. Morse, 31 Cal., p. 128. An award rendered upon a fair arbitration of a matter in dispute between two parties, and for a long time after concurred in, is conclusive.-Jarvis vs. Fountain Water Co., 5 Cal., p. 179. An award bad in part may be enforced for the part that is good, if not attacked for fraud; and the matter is divisible.-Muldrow vs. Award may be vacated in certain cases. Norris, 2 Cal., p. 74. An award, to be valid, must be certain and decisive as to the matters submitted, and thus avoid all further litigation. An award by arbitrators selected to settle accounts between parties, that one of the parties is entitled to a credit of a certain sum on his account with the other, is not final and decisive as to the matters submitted, and is not, therefore, valid. An award of arbitrators is not admissible in evidence unless it is final and conclusive upon the matters submitted.-Jacob vs. Ketcham, 37 Cal., p. 197. 1287. (§ 386.) The Court, on motion, may vacate the award upon either of the following grounds, and may order a new hearing before the same arbitrators, or not, in its discretion: 1. That it was procured by corruption or fraud; 2. That the arbitrators were guilty of misconduct, or committed gross error in refusing, on cause shown, to postpone the hearing, or in refusing to hear pertinent evidence, or otherwise acted improperly, in a manner by which the rights of the party were prejudiced; 3. That the arbitrators exceeded their powers in making their award; or that they refused, or improperly omitted, to consider a part of the matters submitted to them; or that the award is indefinite, or cannot be performed. NOTE.-If an objection be made to an award, on the ground that it embraces matters not in fact submitted, though within the general terms of the submission, it lies with the objecting party to show affirmatively in what the arbitrators have exceeded their authority. The award will be sustained unless this be shown. And it was held that where the agreement of submission recited a sale and resale of certain lands, out of which transaction disputes and misunderstandings had arisen, and the submission was of "all and every matter of dispute arising from or growing out of the transaction aforesaid," an award, that one party receive from the other a certain amount of money and convey to him the lands mentioned, was prima facie authorized by the submission.-Blair vs. Wallace, 21 Cal., p. 317. If the party in whose favor an award of arbitrators is made voluntarily takes judgment on the award, and then receives the amount of the judgment in satisfaction of it, this is a waiver of any errors or misconduct in the arbitration.-Hoogs vs. Morse, 31 Cal., p. 128. Award not void for uncertainty.--Carsley vs. Lindsay, 14 Cal., p. 390. When arbitrators have published their award, any alteration whatever, without the consent of the parties, will vitiate it.-Porter vs. Scott, 7 Cal., p. 312. Courts of equity, in the absence of statutes, will set aside awards for fraud, mistake, or accident; an award may be set aside for a mistake of law, when it appears on the face of the award.-Muldrow vs. Norris, 2 Cal., p. 74. If parties submit to an arbitrator, they must be required to exercise due diligence in procuring the evidence upon which to base a proper award. Montifiori vs. Engels, 3 Cal., p. 431. In Muldrow vs. Norris, 12 Cal., p. 331, the following syllabus of the Supreme Court Reporter gives the main points decided: "Where one of the principal matters in dispute, passed upon by the arbitrators, was subsequently set aside by a higher Court, and the judgment rendered upon the award vacated by reason of the error of the arbitrators in passing upon said matter, it left the award as though such item submitted had never been passed upon; and consequently the award did not effect the purposes of the submission by settling all matters of controversy between the parties. The consideration which moved the parties to enter into the submission had failed, and hence the award is void. The award being void, a release of action, filed by one of the parties in pursuance of the submission, is also void. The doctrine that an award may be good in part and bad in part applies to instances where there has been an excess of power in arbitration by their attempting to determine matters not submitted, or where there is uncertainty or illegality in an independent and distinct matter forming no consideration for other parts of the award, and the settlement of which could not have contributed to induce the arbitration. A useless and invalid determination upon one item properly presented within the general terms of the submission, must, on principle, be as fatal to the entire action of the arbitrators as an omission, intentional, to notice the item at all. The rule is general that arbitrators must pass upon all matters submitted, or their award will be invalid. If several matters are specified in the submission, and the award does not disclose that each is determined, it is defective on its face, and can be set aside on motion. But if the submission is general of all matters in controversy, without specification, it is not Court may, on motion, modify or correct the award. Decision, on motion, subject to appeal, necessary that the award should embrace any matters except those which are laid before the arbitrators. These last, however, must be passed upon, or the award will be void in toto, and be set aside upon a proper showing of the omission. If the submission provide that an award upon the matters submitted be made, or the condition of the bond be that the parties are bound, provided the award of such matters be made, then such proviso extends to all the matters submitted, and operates to render the submission conditional, and the award binding only in case the arbitrators pass upon every subject, either specially referred to them, or brought to their notice under the general terms of the submission." 1288. (§ 387.) The Court may, on motion, modify or correct the award, where it appears: 1. That there was a miscalculation in figures upon which it was made, or that there is a mistake in the description of some person or property therein; 2. When a part of the award is upon matters not submitted, which part can be separated from other parts, and does not affect the decision on the matters. submitted; 3. When the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded. NOTE. That the Court will not disturb the award of an arbitrator or the report of a referee, unless the error complained of appears on the face of the award or report.-Tyson vs. Wells, 2 Cal., p. 122; but see this case modified in Cappe vs. Brizzolara, 19 Cal., p. 607. If the award is uncertain and incomplete upon its face, it must be set aside.-Pierson vs. Norman, 2 Cal., p. 599. 1289. (§ 388.) The decision upon the motion is subject to appeal in the same manner as an order but not the which is subject to appeal in a civil action; but the judgment entered before motion. judgment entered before a motion made cannot be subject to appeal. NOTE. A stipulation that neither party will appeal is of no force or effect, and does not bind the parties.Muldrow vs. Norris, 2 Cal., p. 74. sion be 1290. (§ 389.) If a submission to arbitration be If submisrevoked, and an action be brought therefor, the amount revoked to be recovered can only be the costs and damages sus-brought, tained in preparing for and attending the arbitration. and an action what to be recovered. TITLE XI. OF PROCEEDINGS IN PROBATE COURTS. CHAPTER I. Of jurisdiction. II. Of the probate of wills. III. Of executors and administrators, their sions. IV. Of the inventory and collection of the V. Of the provisions for support of family, VI. Of claims against the estate. VII. Of sales and conveyance of property to VIII. Of the powers and duties of executors IX. Of the conveyance of real estate by exec- cases. X. Of accounts rendered by executors and debts. XI. Of the partition, distribution, and final XII. Of orders, decrees, process, minutes, rec- XIII. Of public administrator. XIV. Of guardian and ward. 17-VOL. II. |