"that said William Standifer and John Dunlap in 1873 commenced an action of ejectment against Thomas Phelan for the recovery of the possession of the land described in said. answer, to wit: the two small tracts comprising about twentyone acres of defendants' herein, and that such proceedings were afterward had in said action, and upon the trial thereof, that a judgment was entered by the District Court in this county, wherein the same was pending, and in favor of the defendants in that action, for costs, in March, 1875. And that afterward, on the 10th day of June, 1875, said Standifer and John Dunlap took an appeal to the Supreme Court of the State, but did not perfect said appeal by filing the transcript in said Court until July 14, 1875, before which last date, viz., on the 7th day of July, 1875, the said John Dunlap had departed this life; that no suggestion of the death of said John Dunlap was ever made, and no person or legal representative of said deceased was ever substituted in said Supreme Court for said John Dunlap, deceased; but without any such suggestion or substitution the cause was argued and submitted to the Supreme Court for final determination on the 19th day of October, 1875, and thereupon, then and there, said Supreme Court rendered its judgment from the Bench of reversal of the judgment of said District Court, and remanded same, with directions to said District Court to enter judgment for the plaintiff in that action on the findings, and on the 30th day of November, 1875, issued its remittitur to said District Court." From which the Court reached the conclusion "That the Supreme Court, at the time the decision and judgment of that Court was rendered * * * had no jurisdiction, and that said judgment was void."

If the death of John Dunlap, occurring at the time it did, operated as an ouster of the jurisdiction of the Supreme Court of the case, the conclusion at which the Court arrived is doubtless correct. But the death of a party pending an appeal does not have that effect in any case. "An action or proceeding does not abate by the death or disability of a party * if the cause of action survive or continue. In case of the death or any disability of a party, the Court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest." (C. C. P. 335.)

* *

There is nothing in the Code which would justify the inference that the death of a party, pending an appeal, ousts the jurisdiction of the Supreme Court and renders its judgment void, unless, before the rendition thereof, a representa

* *

tive of said deceased party be substituted in his stead. This question was not directly involved in Ewald v. Corbett, 32 Cal. 493, or in McCreary v. Everding, 44 id. 284, although there are expressions in both which militate against the views which we entertain on the subject, and which seem to us to be supported by a preponderance of the authorities. The reason why, "in such cases, the judgment is simply erroneous, but not void * is because the Court, having obtained jurisdiction over the party in his life-time, is thereby empowered to proceed with the action to final judgment; and while the Court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal if the fact of the death appears upon the record, or by writ of error coram nobis if the fact must be shown aliunde." (Freeman on Judgments, 153.)

As we view it, the judgment in the former action is no less a bar by reason of its being rendered before a patent for the land had been issued. Both parties then claimed, and now claim, under Pico, and their conflicting claims were in no way affected by the issuance of the patent. The question to be determined in the former action, as in the present one, is the same- that is, which party acquired Pico's interest in the land? Such being the case, the former adjudication, in our opinion, constituted a bar to the present action. (Byers v. Neal, 43 Cal. 210.)

Judgment reversed, with directions to the Court below to enter a judgment in favor of the defendants upon the findings.

We concur: Thornton, J., Myrick, J.

DEPARTMENT No. 1.

[Filed August 28, 1883.]

No. 8647.

CURTIS AND CLUNIE, APPELLANTS,

v.

CITY OF SACRAMENTO, RESPONDENT.

ARB TRATION-AWARD--NOTICE. An award, made ex parte, and without notice to the parties of the time and place for hearing the allegations and evidence, is invalid and void.

Appeal from Superior Court, Sacramento County.
Freeman & Bates for appellants.

Catlin & Hamburger and W. A. Anderson for respondent. MCKEE, J., delivered the opinion of the Court:

The plaintiff sued upon an award made in pursuance of an instrument in writing, purporting to have been made on the 29th of July, 1878, by and between the plaintiffs and the Board of Trustees of the city of Sacramento, representing and acting for said city." Pursuant to the terms of the instrument the question of the value of some professional services which had been rendered by the plaintiffs for the city of Sacramento, was referred to two arbitrators - one to be selected by the plaintiffs and the other by the Board of Trustees-who were to meet as soon as convenient, and after hearing such statements as would be made on behalf of either party, were to determine and report in writing to each of the parties; but in case of a disagreement, power was given them to select a third arbitrator; and it was stipulated that the award of any two of the three arbitrators would be regarded as the award of all, and entered as a judgment against the city, after being allowed by the Board of Trustees.

Two persons were selected pursuant to the terms of the submission; and the Court found that, soon after the selection, they had a meeting, at which they received the unsworn statements of those who were present to testify. The plaintiffs were present at the meeting, but the Mayor of the city was not present; and no notice of the meeting was given to or served upon him, neither by the arbitrators nor by the plaintiffs, and he had no opportunity to be present. Two of the trustees were present as witnesses, one of whom withdrew after making his unsworn statement to the arbitrators. The arbitrators were unable to agree, and they selected a third person, who, upon being notified, accepted the appointment; and the three arbitrators were then sworn and qualified according to law. But they gave no notice to the defendant of a hearing, or of a meeting to be held for hearing the parties and their witnesses, nor did they take any testimony. The original arbitrators handed to the third arbitrator a transcript in long-hand of the phonographic reporter's notes of the statements made to them. Upon that transcript the third arbitrator ex parte took the unsworn opinions of professional men, and those opinions and the transcript of the statements made to the original arbitrators formed the basis upon which the arbitrators made their award.

The Court held that the award was invalid and void for want of notice to the defendant of the time and place of hearing the cause.

It is contended that the decision is erroneous because, as the award was a judgment rendered by a tribunal of the parties' selection, having jurisdiction of the subject-matter submitted to it, and of the parties by whom the submission was made, the want of notice of the time and place of meeting for the hearing and determination of the matter submitted does not invalidate the award, and constitutes no defense to an action at law upon it. But the validity of an award does depend not only upon the due and proper appointment of the arbitrators, but upon the regularity of their proceedings (Crowell v. Davis, 12 Met. 296), and we think if their proceedings are had ex parte, and without notice to the parties of a hearing, their award is invalid and void. That, it is contended, is contrary to the English rule which makes an award conclusive at law. We do not understand that such a rule prevails in the English Courts. It is true that in Tiltenson v. Pete (3 Atk. 529), which was decided in 1747, where the defendant pleaded an award, and objection was made that the arbitrators did not give sufficient notice of the time they intended to meet, or of the particular place at which they were to meet, Chancellor Hardwick overruled the objection as immaterial, saying that "the arbitrators were not bound to give notice; and that the only ground to impeach an award is collusion or gross misbehavior in the arbitrators, for, otherwise, being made the Judges of the parties' own choosing, it is final and binding upon all the parties." But that seemed to the Courts most unreasonable; and in Paschuli v. Terry (Kelynge, 132), decided in 1760, the Court of King's Bench set aside an award which had been made without notice given to one of the parties of the appointment of an umpire, or of a hearing, upon the grounds that it was repugnant to the submission; and that it was unreasonable and contrary to natural justice to make an award without giving notice to the parties to attend. "The umpirage,' said the Court, was made upon the defendant's evidence alone, parte altera inaudita; the plaintiff was neither heard nor had any opportutnity given him to be heard." The principle of that decision, viz., that every man ought to have an opportunity to be heard in defense of his rights, has been ever since acted upon by the English and American Courts; and it runs through all the cases in the books. (Whatley v. Morland, 2 Dowling's P. C. 249; 4 Tyrwhitt's Exchequer Rep. 245; Salkeld v. Slater, 12 Add. & Ell. 767;

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Fetherstoner v. Cooper, 9 Ves. Jr. 67; Russell on Arb. 165; Morse on Arb. 116 and 118; West Jersey R. R. v. Thomas, 6 C. E. Green, 205.)

In Falcover v. Montgomery, 4 Dallas, 232, where an umpire had, without hearing the parties in person, decided the case upon the facts as stated to him by the original referees, the Supreme Court of Pennsylvania said: "The plainest dictates of natural justice must prescribe to every tribunal the law that no man shall be condemned unheard;" and Justice Story, in Lutz v. Linthicum (8 Peters, 178), said: "Without question due notice should be given to the parties of the time and place of hearing the cause, and if the award was made without such notice, it ought, upon the plainest principles of justice, to be set aside. See also Rigden v. Martin, 6 Harr, & J. 403; Passmore v. Petit, 4 Dall. 271; Walker v. Walker, 28 Geo. 104; McKinney v. Page, 32 Maine, 13; Maynard v. Frederick, 7 Cush. 247; Crowell v. Davis, supra; Conrad v. M. Ins. Co., 4 Allen, 20; Frissel v. Fickes, 27 Mo. 557; Day v. Hammond, 57 N. Y. 479.

It is true, as has been urged, that an award is the judgment of the tribunal selected by the parties to the submission; but greater effect cannot be given to it than is given by law to the judgment of an inferior Court. As an inferior tribunal the authority of the arbitrators was limited by the agreement of submission; and the agreement cannot be interpreted to authorize plaintiffs to institute an ex-parte hearing before the arbitrators. The right to notice of a time and place for a hearing upon the matter submitted was implied in the agreement to submit, unless it was expressly waived by the terms of the submission. (Peters v. Newkirk, 6 Cow. 103; Paschall's Case, supra.)

To take away a man's property, or his rights in property, without a hearing, trial or judgment, or opportunity of making known his rights therein, is violative of that section. of the bill of rights which declares that "no person shall be deprived of life, liberty or property without due process of law." An award made ex parte and without the appointment of a time and place for hearing the allegations and evidence of the parties is therefore invalid and void; and in an action at law upon such an award the want of notice may be pleaded as a defense at law. "It is," says Chancellor Walworth, "purely a legal question, upon the ground that it was not within the authority of the arbitrators to make any award without notice." (Elmdorf v. Harris, 23 Wend. 628.) Judgment and order affirmed.

We concur: Ross, J., McKinstry, J.