Palestis v. Weber & Miller

McCABE, J. pro tem.* Plaintiffs appeal from a judgment entered after arbitration.

Plaintiffs brought an action for declaratory relief under certain agreements which existed between themselves and defendants. Plaintiffs had contracted with defendant Weber & Miller for the construction of a house. Further, plaintiffs had entered into certain agreements with defendant Weber & Miller and the other defendants regarding financing and the controls to be placed on the construction money involved in the building of the house.

On the date set for trial all parties, through their respective counsel, entered into a stipulation in open court with plaintiffs present to refer the matter of any deficiencies and defaults to a specifically designated arbitrator, for determination by him and to be bound by any report and findings made by the arbitrator. The arbitrator made his report to the court and parties. Upon a hearing and over the objections of plaintiffs the court accepted the arbitrators report. Findings of fact and conclusions of law based thereon were duly drawn, filed, noticed and signed by the trial court. Judgment was entered accordingly.

Although the judgment entered was entitled “interlocutory,” this court has previously denied a motion to dismiss this appeal on the ground that it was an interlocutory judgment.

Plaintiffs make no contention that their attorney did not have authority to enter into the stipulation or that it was not properly entered in the minutes, but do contend that the stipulation was not as the trial court stated it. This contention is easily resolved since the transcript of the proceedings is before the court. In part, the stipulation is as follows:

“The Court: . . . Let the record show that the parties have stipulated to the appointment by the Court of Mr. Paderewski . . . architect for the investigation of the contentions of the parties as to deficiencies and defaults on the part of either of the parties and to make this report in writing to the court concerning the matters so investigated . . . that the parties will be bound by the findings of the architect. . . . Now do these parties so stipulate?

“Mb. Wilson : Stipulated by the defendants Weber & Miller.

“Mb. Folsom: Tes.

[492]“Mr. Jones: Yes.