Opinion of the Court-Lewis, C. J.

Gill. and John. 345, 355, 356.) The reason given why the verdict should not conclude the parties in the second action, was because the first may not have been upon the same point at issue.

So in the case at bar, the verdict of the jury which, if for the plaintiffs, would be for a certain sum of money, might have been found upon the fact that the plaintiffs were the prior appropriators of the water of Thomas's creek, and not upon the ground that the natural channel of the stream passed through their land.

The plaintiffs claiming the right to recover upon two dis

tinct grounds, priority of appropriation, and that the [*27] water was diverted out of its natural channel, and

issue being taken upon both points, therefore a general verdict would only establish the fact that the plaintiffs were entitled to have the waters of Thomas's creek flow through their land, but whether upon the ground that they were the prior appropriators, or that the natural channel passed through their land, a general verdict would not determine. We conclude, therefore, that Langley had no interest in the event of the suit, and that the verdict and judgment in this case could not be used by or against him in another suit.

It is also claimed that to show error in the court below in rejecting the witness, the record should show the specific purpose for which he was offered. This is clearly untenable. The witness was introduced to prove the entire case, and plaintiffs claim that he is competent.

The case of Sparks v. Kohler (3 Cal. 299), is not an analogous case. In that case the witness Kohler was only competent upon a single point, but was offered generally, the witness being incompetent generally, and the specific point upon which he was called not being stated, the court was correct in excluding him; but in this case the witness Langley is competent generally. The court below, therefore, erred in excluding him.

Let the case be remanded for further proceedings.

Opinion of the Court-Brosnan, J.

T. W. STEEL, RESPONDENT, v. JOHN STEEL, APPELLANT.

[1 NEVADA, 27.]

ARBITRATION-STATUTES MUST BE STRICTLY CONSTRUED.-Our statutory proceedings in cases of arbitration are in derogation of the common law, and must be strictly pursued.

1STATUTES - WHEN MANDATORY.-Whenever a statute prescribes certain specific acts to be done as prerequisite to the acquiring of jurisdiction, or the enforcement of a legal remedy, such acts must be substantially performed in the manner prescribed, in order to give validity to the proceeding. ARBITRATION - The SUBMISSION OF, MUST BE FILED BEFORE A HEARING. filing of the submission, and the entry of the same in the clerk's register, in cases of arbitration, answer the purposes of the complaint and answer in ordinary actions, and like them must be filed before a hearing, trial, or judgment. IDEM-VALIDITY OF, HOW DETERMINED. At common law, scarcely any matter short of a want of power or jurisdiction appearing upon the face of an award, is subject to a question or inquiry, and every reasonable intendment should be made to uphold it. But in statutory awards no such liberal interpretation can be invoked to its aid. Its validity must be determined by the provisions of the statute providing it.

*APPEAL from the First Judicial District of the [*28] Territory of Nevada, Storey County, Hon. J. W. NORTH presiding.

The facts appear in the opinion of the court.

Robinson & Foster, for Appellant.

Clark Churchill, for Respondent.

*By the Court, BROSNAN, J.:

[*29]

This is an appeal from a judgment of the district court of the first judicial district, entered upon an award in favor of the respondent.

The transcript discloses the following facts:

*On the 15th day of June, 1864, a copy, as stated, [*30] of the submission was filed in the office of the said district court.

This document was executed by Thomas W. Steel, but not by John Steel; and among other matters provides that

(1) 1 Nev. 82.

Opinion of the Court-Brosnan, J.

the submission be made and entered as an order of the said district court.

On the 8th day of July, 1864, the arbitrators filed their award with the clerk. On the 11th day of July, three days after filing the award, the respondent filed in the office of said clerk a submission of the same date and tenor as the document filed on the 15th day of June, and then instructed the clerk to make all the entries required by the statute, "in order" (as the record states) "that said submission may become an order of court.”

As appears from the record before the court, which, as certified by the clerk, contains a full, true and correct transcript of all the proceedings had in the case, the only entry in the clerk's register is the following:

"Submission made on the 14th day of June, 1864. Said arbitrators to make the award on or before ten days from the time when the testimony on behalf of both parties is closed, and the matters in difference fully submitted to them."

This entry was made on the 16th day of July, 1864, eight days after the award was filed. On the 22d day of July, judgment was entered by order of the court below.

The respondent's counsel moved to dismiss the case, on the ground that no motion was made before the entry of judgment to vacate or correct the award, as provided by law. (Stat. 1861, pp. 372, 483, Sec. 335, 336, 337.)

If this judgment had been rendered in conformity to the requirements of the statute, and is valid, the counsel is correct, and the appeal is clearly unauthorized.

This is not denied by appellant's counsel; but he contends that the judgment is bad for several reasons, and particularly because the entries required by law were not made.

The determination of this point brings us directly to a review of the requirements of the statute, and of the acts necessary to be performed under it.

It may be proper to state here that the course of [*31] proceedings *prescribed by the statute, is in derogation of the common law, and must be strictly followed. Whenever a statute prescribes certain specific acts

Opinion of the Court-Brosnan, J.

to be done as prerequisites to the acquiring of jurisdiction. or the enforcement of a legal remedy, such acts must be substantially performed in the manner prescribed, in order to give validity to the proceeding. In the case at bar, the statute required the submission to be filed with the clerk, etc. "The clerk shall thereupon" (that is, upon the filing) "enter on his register of actions, a note of the submission, with the names of the parties, the names of the arbitrators, the date of submission, when filed, and the time limited by the submission, if any, within which the award shall be made." Upon the filing of the award also, a note thereof shall be made in the register. So far as we are judicially informed by this transcript nearly all of these acts were omitted. This is a special, not the ordinary mode for recovery of a judgment; the requirements of the statute authorizing it are not idle, useless formula; they are mandates of law not to be disregarded, and must be substantially complied with. It was not seriously claimed, on the argument, by the learned counsel of the respondent, that the paper filed on the 15th of June was a good submission, owing to the want of execution by one of the parties. And it appears from the statement in the case, that no reliance was placed upon it, because when the submission, executed by both parties, was filed, on the 11th day of July, after the award had been filed, the clerk was instructed to make all the requisite entries, "in order (as stated) that said submission may become an order of court;" thus virtually conceding the invalidity of the submission filed June 15, 1864. How else could it be? Had the case rested upon that first defective submission, and the record showed a judgment against the appellant, having only for a predicate a submission not executed by him, certainly no person could reasonably contend that such a judgment would be valid. But the respondent's counsel insists that the submission may be filed at any time after filing the award, though no entry or note be previously made by the clerk in his register of actions; and, therefore, that the filing the submission on the 11th day of July cured all antecedent errors and defects. *This, we think, is incorrect. But even were it [*32]

Opinion of the Court-Brosnan, J.

conceded, it would not avail the respondent's case, for the reason that the necessary note of submission had not been then entered; and for the further reason that when entered, namely, on the 16th day of July, eight days after filing the award, and five days after filing the last submission, it does not comply with the demands of the statute. In short, the filing of the submission and the entry of the prescribed note in this class of cases are the equivalents, and subserve the use of the complaint and answer in an ordinary action, and like both must be filed before a hearing, trial, or judgment.

Our attention has been directed to several adjudicated cases to show that awards are usually liberally construed. Of this rule there is no question; it is well established as regards awards at common law.

The current decisions seem to be that awards of that kind cannot be impeached at law, if made in good faith, whether the arbitrators decide wrong either as to the law or the facts of the case.

Scarcely any matter, short of a want of power or jurisdiction appearing upon the face of such award, is subject to question or inquiry. And were this an award at common law, every reasonable intendment should be made to uphold it.

But the award before the court is statutory, and such a liberal interpretation cannot be invoked in its aid. Its validity must be determined under the provisions of the statute authorizing it. And althought it may be a good award under the rules of the common law, of which we express no opinion, yet it must stand or fall as it is, or is not, supported by the statute.

Some other points have been raised and discussed; but as we have determined that the judgment should be reversed on the ground of a departure in the proceedings from the provisions of the statute, we have not deemed it necessary to examine them.

The judgment is reversed.