This was a proceeding by a motion filed by the appellant in the District Court of Tarrant County to compel the clerk of said court to enter as the judgment of the court an alleged award of arbitrators.
It appears that by authority of the city council of the city of Fort Worth an agreement in writing was entered into between the city and the appellant to submit to arbitration the settlement of the amount of compensation to be paid Anderson for certain property intended to be used for street purposes, and that in pursuance of such agreement each party selected an arbitrator, with authority, if they should fail to agree, to select an umpire. The two arbitrators disagreed and selected an umpire. The umpire and the arbitrator selected by Anderson agreed to and signed an award fixing the amount of compensation to be paid by the city to Anderson. The arbitrator selected by the city refused to consent to this award. The umpire was not sworn.
It appears that the city attorney and Anderson indorsed upon the agreement to arbitrate an agreement dispensing with the administration of an oath to the arbitrators or the umpire. The court decided that the award was not so made as to authorize its entry as a judgment of the court, and the motion was refused.
A number of interesting questions, both of practice and right, are suggested by the record, which we do not think it necessary or proper to now discuss or decide. If it be admitted that in this proceeding the appellant would have the right to have the award, if properly made, entered as the judgment of the court, we think that the omission to swear the umpire would be fatal to his case. The agreement of the city was made with reference to the statute on the subject, one provision of which is that the arbitrators, including the umpire, shall be sworn. Rev. Stats., art. 46.
It does not appear that the city attorney had any authority to waive this requirement of the statute.
We do not intend to decide that the questions in controversy could have been properly adjudicated in the District Court in an arbitration proceeding under the statute, nor that the proper practice to have an award entered is by a motion against the clerk.
The judgment is affirmed.
Affirmed.
Delivered January 22, 1892. *Page 110