In re the Arbitration between Kreiss & Hotaling

Paterson, J. — A dispute having arisen between respondent and appellant as to the balance, if any, due from the latter to the former for certain work done by him in decorating appellant’s dwelling-house, a contract was entered into, by the terms of which they agreed to submit the matter in controversy to two arbitrators, who were authorized to choose an umpire in the event of their inability to agree. It was stipulated that the submission to arbitration should be filed with the clerk and entered as an order of the superior court. The arbitrators were unable to agree upon an award, and Augustus Laver was chosen by them to act “as an umpire, or third [619]arbitrator.” An award was filed April 21,1888, in which the arbitrators found that appellant had overpaid respondent, and that he was entitled to have and recover from respondent the sum of three thousand dollars. The award was entered in the judgment-book by the clerk, who thereupon made up what he certifies to be the judgment roll, consisting of the agreement, stipulations extending the time in which the arbitrators should make the award, a notice and affidavit of Kreiss setting forth his objections to the entering of any award, and the award of the arbitrators. Respondent moved for an order setting aside the award, and granting a rehearing before the arbitrators. Thereupon the court made the following order, from which the appellant has appealed:—

“ In this cause,the motion of L. Kreiss, one of the parties above named, made June 11, A. D. 1888, for the purpose of vacating and setting aside the award in this proceeding, coming on regularly this day for hearing, the said L. Kreiss being represented by Henry E. High-ton, Esq., his attorney, and A. P. Hotaling, the remaining party to said alleged arbitration, being represented by A. N. Drown, Esq., his attorney, it appearing to the court that the submission to arbitration filed herein on April 17, A. D. 1888, is not a statutory submission under title X., sections 1281 to 1290, inclusive, of the Code of Civil Procedure of this state, it is hereby ordered that upon this ground and for this cause, and for want of jurisdiction thereof, the said motion is now dismissed; and it is further ordered that the judgment entered in form in the said proceeding by the clerk of this court be, and all proceedings thereunder be, and the same hereby are, perpetually stayed. Affidavits of A. P. Hotaling, M. E. Knoph, Augustus Laver, and R. Blum read and filed in opposition to said motion.”

It clearly appears from the provisions of this order that the court denied the motion of respondent to set aside the award, and in lieu of the relief asked for, made an order staying all proceedings on the judgment en