Pawling v. Malley

MUSSELL, J.

Defendants appeal from a judgment entered pursuant to a stipulation in an action to fqreclose a mechanic’s lien. The stipulation, which was in writing, dated April 20, 1949, and filed in the action, contained recitals that plaintiff, as contractor, and defendants, as owners, had entered into a contract for the building of certain improvements in the city of Palm Springs; that during the course of construction disputes had arisen between the parties as to changes

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made in the building, extras furnished, charges made, alleged interference by the owners with the work, and alleged failure of plaintiff to complete the construction according to the terms of the contract; that the owners refused to pay plaintiff’s claimed balance due on the contract; that plaintiff had filed a suit to foreclose a mechanic’s lien on the premises; that the contractor and owners had agreed that their various disputes should be settled by arbitration and that the decision of the arbitrators should be final and entered as a judgment in the foreclosure action. It was then stipulated that the moneys due one party by the other under the contract should be determined by three named arbitrators; that upon arriving at a decision the • amount determined to be due should be entered as a judgment in favor of the party found to be “entitled in the within action”; that the findings and award of the arbitrators should be written and signed by each of the arbitrators; that all items of costs and interest allowable in the event the action should have been tried before the court should be awarded to the parties entitled thereto and that all other expenses of the arbitrators should be borne equally by the plaintiff and the defendants.

The arbitrators conducted hearings, received evidence, and on July 12, 1950, submitted an award in writing in which they found in favor of plaintiff in the sum of $3,633.42, with interest, filing fees $20.60, “costs in the sum of $300. Arbitrators. (2).”

The award was submitted to the attorney for the defendants and on July 19, 1950, returned by him to the attorney for the plaintiff. Apparently, no objections were made to the award by the attorney for the defendants and it was filed in the action on July 25, 1950, and on the same day the court entered judgment for the amount found due in accordance with the stipulation of the parties. Thereafter, on August 14th, the defendants filed a notice and motion to vacate the award of the arbitrators and on the same day filed a motion to set aside the entry of the judgment on the ground that no notice of motion for an order confirming the award of the arbitrators had been served on the defendants or their attorney in compliance with section 1287 of the Code of Civil Procedure. These motions were supported by affidavits in which it was claimed, among other things, that the arbitrators had failed to properly conduct the arbitration proceedings and make proper findings therein; that they failed to allow certain credits claimed by the defendants; that a