Hoogs v. Morse

By the Court, Sanderson, J.: This is an appeal from an order of the District Court setting aside an award of arbitrators and a judgment entered thereon by the Clerk. The motion was heard upon affidavits on the part of the plaintiff, and counter affidavits on the part of the defendants. Several grounds were relied upon by the plaintiff, but upon what particular ground or grounds the Court based its order does not appear.

On the part of the plaintiff it is claimed that the judgment was void, because it was entered by the Clerk in less than five days after the award was filed, and without an affidavit showing service of notice of the filing of the award upon the defendants, as provided in section three hundred and eighty-five of the Practice Act. But the answer to this is that the judgment was so entered at the instance and request of the plaintiff himself, and he cannot be allowed to take advantage of his own wrong. If the defendants were seeking to set aside the judgment the point would be good for them; but they are not. They were satisfied and paid the j udgment, and the plaintiff cannot be heard how to question its validity upon the ground that it was irregularly entered.

The action of the plaintiff, in taking a judgment on the award and then receiving the amount of the judgment in satisfaction, was also a waiver of any errors or misconduct on the part of the arbitrators, of which he had notice at the time, and he is charged with notice of all errors or misconduct which were known to his attorney.

[130]Under the circumstances of the case, we are at a loss to perceive how there could be any valid ground for setting aside the award at the instance of the plaintiff except fraud discovered after the plaintiff had accepted payment in full of the judgment. Fraud is alleged in the plaintiff’s affidavit, but his affidavit is wholly unsupported, and is overwhelmingly contradicted by the counter affidavits.

Order reversed and cause remanded.