Newcomb v. Wood

delivered the opinion of the court.

A few remarks will be sufficient to dispose of the several assignments of error in this case.

*583 The power of a court of justice, with the consent of the parties, to appoint arbitrators and refer a case pending before it, is incident to all judicial administration, where the right exists to ascertain the facts as well as to pronounce the law. Conventiofacit legem. In such an agreement there is nothing contrary to law or public policy. The Code of Ohio provides (sect. 281) expressly “ that all or any of the issues in the action, whether of fact or law, may be referred upon the written consent of the parties, or upon their oral consent in court, entered upon the journal.” 2 Swan & C. 1027. The reference here in question was made in the latter mode and by virtue of this authority.

The objection that the arbitrators were not sworn was waived by the plaintiff in error by appearing and going to trial without requiring an oath to be administered. If the witnesses had not been sworn, the waiver of that defect under the same circumstances would have been equally conclusive. Edwards, Referees, 107; Morse, Arbitration and Award, 172; Maynard v. Frederick, 7 Cush. (Mass.) 247.

Two of the three referees only signed the award, but the attention of the court was not called to the fact when the report was confirmed and the judgment was entered. The omission was amendable, and non constat but that the amendment could and would have been made if the objection had been suggested. It would be fair neither to the court nor the other party to permit the objection to be raised here for the first time. Under the circumstances, it must be held to have been conclusively waived, and the plaintiff in error cannot be heard now to insist upon it. Bell v. Bruen, 1 How. 169; Marine Bank v. Fulton Bank, 2 Wall. 252; Klein v. Russell, 19 id. 433; Edwards v. Elliott, 21 id. 532; Walker v. Sauvinet, 92 U. S. 90; Wheeler v. Sedgwick, 94 id. 1.

The plaintiff in error was not, by reason of the State law, entitled to a second trial. The agreement to submit the controversy to referees selected or approved by the parties implied clearly that they intended the award should be final and conclusive. The District Court held this view, and ruled accordingly. It has long been ,the established law in the courts of the United States that to grant or refuse a new trial rests in *584 the sound discretion of the court to which the motion is addressed, and that the result cannot be made the subject of review upon a writ of error. We cannot think that Congress intended by the act of June 1, 1872 (17 Stat. 197, sect. 5), to abrogate this salutary rule. Nudd v. Burrows, 91 U. S. 426; Indianapolis, &c. Railroad Co. v. Horst, 93 id. 291.

Judgment affirmed.