¶1This was an action for work and labor, and for materials furnished. The defendant set up, in bar, a former submission of the same matters involved in this suit- to arbitration, and the award of the arbitrators. In the submission, it was stipulated that the same should be entered as an order of the County Court. The defendant had judgment in the Court below, and the plaintiff appealed.
¶2The only question in the case is, whether the award was void.
¶3It is clear that the County Court had no jurisdiction, and could *146render no judgment. 5 Cal., 43, 279 ; Minnichite v. Ramirez, July T., 1857.
¶4The submission in this case was made under the provisions of the three hundred and eighty-first section of the code. The submission, under the statute, is but one mode of instituting a suit; and, after the submission is filed with the clerk, and the proper entry is made by him, the submission becomes irrevocable, without the consent of both parties; and the arbitrators may be compelled by the Court, to make an award; and, when made, it may be enforced by the Court, in the same manner as a judgment.
¶5It is well settled that an award may be good in part, and bad in part, or void pro tanto or in toto ; and may, therefore, be enforced, or not, accordingly. (2 Cal., 79 ; 1 Hill, 495; 2 Cowen, 638; 13 John, 364.) But if the parts be inseparable, the whole must stand or fall together.
¶6It is insisted, by the counsel for the defendant, that although the County Court had no jurisdiction of the subject-matter, and no judgment could be rendered upon the award, it is still good as a common law arbitration, and can be enforced by suit in the District Court.
¶7But we think this position is not correct. The objection goes to the whole award; and when parties expressly stipulate to submit their matters in controversy in a special statutory mode, we have no right to infer that they intended to be bound at all, unless the mode stated was substantially pursued. A common law submission is a very different thing from a submission under our statute. In the latter case the proceeding is in Court, the arbitrators are under its control, and the remedies of the parties much more simple, direct, and efficient. We cannot undertake to decide that the parties in this case would ever have agreed to a common law submission. They evidently intended a proceeding in Court, where each party could avail himself of all the remedies allowed by the statute. As they both intended the proceedings to be under the control of the Court, and as they were both equally mistaken as to its want of jurisdiction, the submission was wholly void. The arbitrators under this statutory submission constitute a part of the Court; and if the Court itself has no jurisdiction, the arbitrators can have none; nor can they have common law powers, when appointed in the mode provided for by the statute.
¶8For these reasons, the judgment of the Court below is reversed, a new trial ordered, and the cause remanded, for further proceedings.