Accito v. Matmor Canning Co., Inc.

PEEK, J.

This is an appeal by Matmor Canning Company from an order confirming the award of arbitrators in favor of the complainant Aceito, from the judgment entered in

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accordance therewith, and from the order denying Matmor’s motion to vacate the award.

On December 9, 1952, Aceito filed his motion to confirm the award. It was alleged that the motion would “be based upon the agreement, the selection of the arbitrators and the award hereunto attached and made a part hereof and also upon the minutes of the Court.” Thereafter Matmor gave timely notice of motion to vacate the award, alleging that it would be made upon the ground that II. D. Zimmer, the arbitrator appointed by Matmor, was disqualified to act and that his participation constituted “misbehavior by which the rights of respondent Matmor Canning Co., Inc. have been prejudiced.” Attached to said notice was an affidavit by Zimmer in support thereof. The court issued its order staying all proceedings to enforce the award pending a determination of the motion to vacate. Both motions were argued and submitted, and on the following day the court confirmed the award, entered judgment in favor of Aceito, and denied the motion to vacate.

Following the filing of the briefs herein, counsel for Aceito moved to augment the record by filing herein the agreement of the parties submitting the matter to arbitration, and copies of the letters selecting the arbitrators. Such action was precipitated by the position now taken by counsel for Matmor who for the first time attacked the action of the trial court in denying its motion to vacate the award, not for the reason stated therein, to wit, “misbehavior” of the arbitrator appointed by Matmor, but for the reason that the motion to confirm did not have attached to it the agreement to arbitrate and the appointment of arbitrators. The motion to augment was opposed by Matmor upon the grounds that none of the documents previously referred to were offered or used at the hearing in the superior court, uor were they filed or lodged with said court as required by rule 12 of the Rules on Appeal. This court granted the motion and referred the matter to the trial court with instructions to take such proceedings as it deemed proper to ascertain what documents, if any, were before the court on the motion to confirm. The transcript of that proceeding which is now before us shows that all of the documents referred to by Matmor were before the court at the time of the hearing on the motion to confirm, and that the court was thoroughly familiar with the contents.