Bank of Coronado v. Shreve

This is an appeal from an order of the superior court of the county of San Diego denying the appellant’s motion to vacate an award made and filed therein in the course of an arbitration proceeding had between certain parties under the provisions of the Code of Civil Procedure relating to such proceedings.

The facts of the ease are these: On April 21, 1919, J. H. Shreve, the appellant'herein, and one William Hoyte Colgate entered into an agreement in writing to submit certain matters in controversy between them to arbitration, three arbitrators were named in said agreement, and it was further therein provided that the award of said arbitrators “be made in writing by said arbitrators or any two of them and be delivered to the said parties or their attorneys within thirty days from the date within which said submission is made to said arbitrators.” The arbitrators so chosen qualified on the tenth day of May, 1919, and thereupon and on May 11, 1919, filed with the clerk of the superior court, pursuant to the provisions of section 1283 of the Code of Civil Procedure, the agreement of arbitration, with their qualification attached thereto, and thereupon proceeded to hear the allegations and take the evidence of the parties, and for that purpose met and adjourned from time to time until the fourteenth day of June, 1919, when they made and filed their award, wherein, after a detailed report of the proceedings before said arbitrators, it was found and adjudged by them that J.

[1] The first contention urged by the appellant is that the award of said arbitrators was void because the same was not made or filed by said arbitrators within thirty days from the date of submission to them. This contention is based upon the language of the agreement of arbitration above set forth, and which, according to the construction which the appellant insists should be placed upon its terms, required the making of said award within thirty days from the date of the agreement itself. From an inspection of the record herein we are satisfied that the appellant was not entitled to urge this contention before the trial court nor to make the same upon this appeal. The record herein discloses that the arbitrators selected by the parties qualified as such on May 10, 1919, and thereafter up to June 14, 1919, held their several hearings in pursuance of their functions as such arbitrators, at all of which the appellant herein appeared without any objection to the prolongation of such hearing beyond the period of thirty days after the date of the agreement in question. It further appears that on the fourteenth day of June, 1919, that being the last day of the sessions of said arbitrators, and being also Saturday, the afternoon of which was a half-holiday, the parties entered into a stipulation in writing to the effect that the arbitrators might continue to act as such during the afternoon of said day with the same effect as though it were a judicial day, and in addition the parties further stipulated in writing “that the original award of the board of arbitrators herein shall be retained by a member of said board for the period prescribed in the agreement submitting the matter to arbitration, at the expiration of which time the said original award shall be filed by said members of said board in the above-entitled matter . . . That all exhibits introduced in evidence in this matter shall be retained by a member of the board of arbitrators during a period of thirty days from and after giving said award, and at the time

[2] And this disposes, also, of his next contention that the action of the trial court in ordering its clerk to insert in the register of actions a memorandum as to the time within which the award should be made was void. The court had jurisdiction to direct its clerk to amend the entry in the register made under section 1283 of the Code of Civil Procedure so as to conform to the requirements of that section and with the terms of the agreement of submission (California Academy of Sciences v. Fletcher, 99 Cal. 207 , [ 33 Pac. 855 ]); and the amendment to the register entry, which the clerk so made pursuant to such direction, caused it to conform to the terms of the agreement of arbitration as the same had been interpreted by the parties themselves.

[3] The appellant’s next contention is that the arbitrators failed to determine all of the matters submitted to them, and that their award was in that respect defective, and, hence, in violation of the agreement for arbitration and of the later stipulation of the parties made while the matter in controversy was in the hands of the arbitrators. We do not think this contention is maintainable upon the record before us, nor that it can be fairly predicated upon the language of the written agreement or later stipulation of the parties. The appellant fails, we think, to show that the arbitrators did not consider all -of the controverted matters,

The next point urged by the appellant is that the trial court erred in refusing to permit him to introduce in evidence upon his motion to vacate the award a copy of certain reporter’s notes of the proceedings before the board of arbitration. We are satisfied that no proper foundation was laid for the introduction of these notes, and that the objection to their introduction was properly sustained.

[4] The final contention of the appellant is that the trial court was in error in refusing to vacate the award in question upon the affidavit and showing of William Hoyte Colgate that he had settled all matters in dispute between himself and the appellant, and upon his request contained in said affidavit that said award should be vacated. The facts germane to this particular, inquiry, as shown by the record, are these: On the twelfth day of June, 1919, William Hoyte Colgate made, executed, and delivered to the Bank of Coronado an assignment in writing of the judgment or award to be given, rendered, or entered in the matter under submission to arbitration, and in and to all moneys due or to become due thereunder. Notice of this assignment was immediately given by the Bank of Coronado to this appellant, and thereafter and on July 31, 1919, the said Bank of Coronado was, upon its motion, substituted in the matter then pending in the superior court in the place and stead of William Hoyte Colgate as the party in interest of record therein. The assignment above referred to was general in its terms, but there was also executed on even date therewith an agreement between said William Hoyte Colgate and the two gentlemen who had been acting as his attorneys in the matter of the arbitration, by the terms of which they became

Finding no error in this record, the order is affirmed.

Kerrigan, J., and Waste, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 7, 1921.

Angellotti, C. J., Shaw, J., Lawlor, J., and Olney, J., concurred.