At common law an award can only be made the foundation of an action. Our Code, sections 4166 et seq. alters the common law and permits an award to be made the judgment of the Court, provided certain things are done by the parties, and the award is made in the way indicated. But it also permits the parties, if they prefer it, to pursue the old mode, and Slave their matters of controversy settled by a common law *478award. It is proper, therefore, that the Court should see that both parties intended to submit to a statutory arbitration before it permits the award to' be made the judgment of the Court. In order to do this, no better way occurs to us than that it should be made apparent that the details of the statute have been complied with, or, if minor details have been omitted, at least that the intention of the parties was clearly to submit to an award under the statute. In the present case one of the three arbitrators took no part in the proceedings, and was not even sworn. Nor does it appear that he was chosen by the two arbitrators selected by the parties. Indeed, he is only named as an umpire in the submission which would seem to indicate that the parties intended he should take no part unless the others disagreed. Further, it is no where stated in the submission that the award is to be made the judgment of the Court.
In view of the failure to comply with the provisions of the statute, and in the absence of any evidence of intention on the part of the parties to make the award the judgment of the Court, we think that the submission in this case ivas, at least, prima fade, intended to be under the common law, and the award should not have been made the judgment of the Court without some evidence that the intention of the parties was to submit to an arbitration under the statute.
It is contended that when the award is sought to be made the judgment of the Court, the objections should be made as pointed out by the Code. This is true where the submission is under the statute, but where the submission is at common law the losing party is not bound to take notice at his peril that his opponent will move to make the award the judgment of the Court.
2. If the award was a common law one, there was no power in the Court by mere order to transform it into a judgment. Such order was inoperative and void. The propriety of a defendant, against whom even a void judgment exists, moving to set it aside is too obvious to need elaboration.
Judgment reversed.