Woodruff filed the original bill in this cause, charging that a certain contract by which he became the purchaser of a tract of land had been imposed on him by the fraud of Black, and praying that the contract be rescinded, and an accounting had of payments, rents, etc. After Black had answered the bill denying circumstantially its averments of fraud, the parties entered into an agreement in writing for rescission and the execution of the papers necessary to accomplish that result, and, to state its further effect in a general way, for an arbitration which would de
(1) A paper purporting to be an award of the arbitrators was filed with the register, and Woodruff moved the court that it be entered as the court’s decree in the pending cause ; but the court, taking the view of the arbitration indicated above, denied the motion. Thereupon Woodruff filed his amended or supplemental bill setting up the agreement and the award as a common-law arbitration, and praying the court to put the agreement and the findings of the arbitrators into effect by its final decree in the cause. Black demurred to this supplemental bill, taking two grounds against
The Submission to arbitrate, containing an agreement that the award, unless performed by the parties within 30 days, should be made the decree of the court, though ineffectual as an agreement for arbitration under the sanction of the statute, did not defeat the pending bill. — Henry v. Porter, 29 Ala. 619. One clear purpose of the agreement was that it should not defeat the bill. The purposes or agreements of parties cannot be permitted to divert the administration of justice from its orderly channels; but one proper office of a supplemental bill is to bring forward matter relating to the case made by the original bill, but arising subsequent to the filing of such bill, to show a new interest vested in an old party, or to show that what was an inchoate has become a perfect right — Barringer v. Burke, 21 Ala. 765; Bowie v. Minter, 2 Ala. 406; Walker v. Hallet, 1 Ala 379; Fletcher, Eq. Pl. & Pr. §§ 825, 826. A supplemental bill was always in the nature of an amendment, and now under our rule facts occuring after the -filing of a bill may be introduced by an amendment. Chancery Court Rule 15.. Equity cannot by supplemental matter be injected into a bill that before had none. — Schreerer v. Agee, 113 Ala 383, 21 South. 81. But the supplemental bill in this cause preceeded upon precisely the same equity as the original bill, though to be proved in a different way, and was properly allowed as a continuation of the original bill. Perhaps the same result would have been attained on the principle of Durr v. Hanover Bank, 170 Ala. 260, 53 South. 1012.
(3) But, on consideration of tbe facts to be now stated, we are of the opinion that tbe arbitration should be held for naught, and that tbe chancery court committed error in decreeing tbe specific performance of tbe agreement and award set up by Woodruff in bis supplemental bill. It is established by tbe undisputed evidence in this case that on tbe second day after the arbitrators beard tbe parties they prepared a statement of their conclusions on two separate papers as follows:
“Feb. tbe 4..............................ward..............................1913. We tbe arbitrators agreed that H. H. Black pay to- W. W. Wood-ruff the sum of $3,540.10 dollars and pay half of the cost of tbe arbitration and pay bis witnesses one $1.00 per day.
“Feb. tbe 4..............................ward..............................1913. We tbe arbitrators agreed that W. W. Woodruff pays to H. H. Black tbe sum of $1246.00 for rent and pay half of tbe cost of tbe arbitration and pay bis witnesses one $1.00 per day.”
There is some conflict in tbe testimony as to whether tbe arbitrators signed these papers, and we leave that circumstance undetermined. But we find in tbe record no reason for doubting that both papers were prepared
The controversy as to whether the paper filed with the register truly represented the agreement of the arbitrators has arisen out of the inquiry whether they intended that this sum of $1,246 should be subtracted from the sum of $3,540.10 in order to arrive at the net sum due from Black to Woodruff, or whether they intended that Black was indebted to Woodruff in the gross sum of $4,768.10, from which $1,246 was to be subtracted. The attorney prepared the award and read it over to the arbitrators, paragraph by paragraph as it was prepared, and they signed it. This, of course, tends strongly to establish the paper as a time memorial of what the arbitrators intended, and the result ought not to be disturbed except upon grave consideration of all the circumstances. But upon the whole evidence, of which we have stated only the outlines, we-feel confident that the arbitrators did not intend to fix $3,540.10 as the net amount due from Black to Wood-ruff, but that their purpose was to award that sum, less $1,246, and that the attorney himself was led by
To meet this state of the facts, counsel for appellee rely upon two propositions of law which may be stated as follows: That the attack upon the award is collateral and available to defendant, in his situation, by cross-bill only; that as matter of substantive law, the award is conclusive against the defense however presented.
(4) It is firmly settled that the judgment of a court of competent jurisdiction cannot be impeached in any collateral proceeding. A closely applied principle is that a mistake in the rendition of entry of a judgment can be taken advantage of in a direct proceeding only. — 1 Black on Judgments, § 2G2. A proceeding to enforce a judgment is collateral to the judgment, and will admit no inquiry into its regularity or validity. 23 Cyc. 1064. This means, of course, that the defendant in such proceeding, if he would draw the judgment into question, must file his cross-bill. The cases frequently liken the award of arbitrators unto a judgment of a court, and they say that an award cannot be assailed collaterally. — Brewer v. Bain, 60 Ala. 153. But evidently an award is not as sacred against inquiry as the judgment or decree of a court, for, to obtain the judicial mandate for execution, an award must be translated into terms of judgment or decree, and this.
(5) It remains to inquire whether the matters set up in the answer and evidence are to be excluded from consideration on any rule of substantive law. We think it plain that the preparation of the award by the counsel for one of the parties in the absence of the other, a circumstance insisted upon in the answer, was entered upon without due reflection. After arbitrators have come to their conclusion, there is no objection to their availing themselves of professional assistance in drafting their award, provided they do not resort to the counsel of either party. Morse on Arb. 275. But to take advice or assistance of counsel for either party in the absence of the other may even endanger the award. Id. However, we are satisfied that this was an inadvertence on the part of all concerned, and pass
An award may be impeached for corruption, fraud, partiality, or gross misbehavior of.the arbitrators; bat it is not enough to show error of judgment, or that the matters of difference were unwisely determined. — Bumpass v. Webb, supra. To set aside an award for a mistake of the arbitrators as to law or matters of fact in arriving at a conclusion as to what the award ought to be, unless the mistake appear upon the face of the award, would introduce such uncertainty and lack of finality into the system of settling disputes by arbitration as to deprive that method of much of its value. Yet some courts have allowed this, especially where the arbitrators acknowledge the mistake, on the principle that such circumstances furnish ground for an appeal to the court’s discretion where the nature of the jurisdiction exercised admits of discretion. Moore, 320. And where it can be clearly shown dehors the award that arbitrators, after arriving at a conclusion, have' made a mistake in setting down their conclusion in the final memorial of their award, it seems that á different principle should be applied. '
In a case under the title In re Hall & Hinds, 2 Man. Gr. 847, strikingly like the case at bar, except that the award was for a sum of money and could be enforced, if at all, only by an action at law, Chief Justice Tindal of the English Court of Common Pleas, on a motion to set aside the award, employed this language: “We cannot, however, help thinking that in a case circumstanced like the present the court must have some power to give a remedy, rather than that so manifest a failure of justice should take place. And it would real
In Hutchinson v. Sheppeton, 66 Eng. Com. Law Rep. 955, Lord Denman, C. J., after referring to a case which seemed to indicate that no mistake of an arbitrator could ever be a sufficient ground for setting aside an award, approved the decision in Re Hall & Hinds, saying: “Though fully sensible of the propriety of observing the greatest caution in regard to this subject to avoid injuries which would unravel bygone transactions and keep alive the litigation which the parties had hoped to terminate by reference, we cannot think the rule universal and subject to no exception. It is, at most, one for guiding our discretion, which cannot be so absolutely fettered and rendered powerless.”
In Aiken v. Bolan, 1 Brew. (S. C.) 239, 2 Am. Dec. 660, it was said that an award may be set aside “on account of some mistake, which arbitrators sometimes may fall into without design, by which their award is made to operate in a way they did not intend.”
In Moore on Arbitration, 326, commenting on Hall & Hinds, the author has this to say: “A distinction certainly ought to be and might be drawn between this description of inaccuracy (misapprehensions as to the meaning or contents of the award) and a mistaken view of a question of fact or evidence, or an incorrect notion concerning a legal principle. Errors of the latter class are customarily called mistakes of the arbitrator, or mistakes in the award. Errors of the former class are certainly mistakes; but in order to distinguish them in language, as they certainly are distinguishable in their intrinsic nature, it would seem well to call them blunders; they-are, precisely, blunders in writing out
(6) On these authorities, and the just principle they expound, we think the award in this case should not have been enforced in the equity court. The chancellor seems to charge Black with some measure of responsibility for this mistake. We quote from his decree : “The question of such mistakes might have been avoided had respondent been present at the time said award was prepared and signed by the arbitrators. He had notice of the meeting of the arbitrators for this purpose, and he declined to be present of his own motion.”
Defendant lived at a distance, and this may account for his absence. But, apart from this, he was under no duty to be present. He had presented his case, and had every right to assume that the arbitrators, in making up their award, would act discreetly and correctly set down the result of their deliberations.
(7) Nor did Black need offer to the court for establishment the amended award which the arbitrators, on being advised of their mistake, filed, with the register. He was on the defensive. No principle of equity
For the error indicated, the cause will be reversed, and in order that the complainant may again recast his case, if so advised, the cause will be remanded.
Reversed and remanded.