Barlow v. Shawnee Inv. Co.

Decision Date29 February 1932
PartiesRUTH HELEN BARLOW, RESPONDENT, v. SHAWNEE INVESTMENT COMPANY, APPELLANT
CourtKansas Court of Appeals

Appeal from Circuit Court of Jackson County.--Hon. Clarence A Burney, Judge.

MOTION TO DISMISS OVERRULED; JUDGMENT AFFIRMED.

Morrison Nugent, Wylder & Berger for appellant.

James K. Houghton for respondent.

OPINION

TRIMBLE, P. J.

On December 6, 1929, plaintiff or claimant, widow of Lloyd D Barlow, filed with the Missouri Workmen's Compensation Commission, her claim for an award of compensation for the death of her husband, alleging that he, while an employee of the "Shawnee Credit Corporation" was killed on July 29, 1929, by accident arising out of and in the course of his employment. The referee of the Commission heard the claim and on March 25, 1930, denied the same. Application for review of said finding by the full Commission was filed on April 2, 1930, and, after same was had, the full Commission on June 12, 1930, rendered its final award, including a "Finding of Facts" and "Statement of Facts and Rulings of Law," reversing said referee's finding and awarding compensation in the lump sum of $ 6,025.69 to "Ruth Barlow for herself and as natural guardian of Eula Margaret Kelly, thirteen-year-old step-daughter of deceased, the former to give proper bond before the award is paid." Thereupon said employer, Shawnee Credit Corporation, on June 14, 1930, gave notice and appealed to the Circuit Court of Jackson County, Missouri, where the appeal came on to be heard on the 22nd day of July, 1930 (it being a part of the regular May, 1930, term of said court), and the same was heard and taken under advisement; and at the March, 1931, term (March 21, 1931), the final award of the Commission was affirmed and judgment was rendered by the Circuit Court in favor of claimant, Ruth Helen Barlow, "for herself and as natural guardian of Eula Margaret Kelly," for the sum of $ 6,025.69 in a lump sum, with six per cent interest from July 30, 1929, amounting to $ 592.46 making a total of $ 6,618.15, against "Shawnee Investment Company, appellant."

In due time, to-wit, on March 26, 1931, motions for new trial and in arrest were filed by the "Shawnee Credit Corporation, appellant." On April 15, 1931, claimant, Ruth Helen Barlow, filed a motion to set aside the judgment and dismiss the appeal of the "Shawnee Credit Corporation" from the Commission to the circuit court, on the ground that the Shawnee Credit Corporation, which gave the notice of appeal from the final award of the Commission, was not a party to the award, and had no interest therein.

On April 25, 1931 (being still the March term of that year), the "Shawnee Investment Company, employer and appellant," filed motion in the circuit court to allow it to amend notice of appeal from the Commission to the circuit court, by changing the signature to said notice of appeal to "Shawnee Investment Company." This motion the court, on the same day, April 25, 1931, overruled "for want of jurisdiction." On the same day the court overruled claimant's motion to set aside the judgment and dismiss the appeal from the Commission to the circuit court, which motion had been filed April 15, 1931, as heretofore stated.

On the same day the motion was overruled, namely, April 15, 1931, the motions for new trial and in arrest which had been filed March 26, 1931, were heard and taken under advisement until the May term (June 8, 1931), when they were overruled, the defendant saving its exceptions. Whereupon, "Shawnee Investment Company, the employer appellant in the above entitled action" filed affidavit for appeal. The appeal was allowed and time was granted to file bill of exceptions.

The original claim for compensation filed with the Commission on December 6, 1929, stated the name and address of the employer to be "Shawnee Credit Corporation, 416 City Bank Building, Kansas City, Missouri." The amended claim, however, gave the names and addresses of all employers as "Shawnee Investment Company, a Missouri Corporation (formerly Shawnee Credit Corporation, a Missouri Corporation), and Shawnee Credit Corporation, a Delaware Corporation, successor to the business and liabilities of Shawnee Credit Corporation, 416 City Bank Building, Kansas City Missouri."

The answer to the original claim was filed by the Shawnee Credit Corporation, and the amended answer thereto gave name of employer, and its address, as "Shawnee Credit Corporation, City Bank Building, Kansas City, Mo.," and stated that the "employer and insurer deny claim for compensation because the accident did not arise out of and in the course of the deceased's employment, it being an accident with which the employer had no causal connection."

But the amended claim gave the names and addresses of all employers as "Shawnee Investment Company, a Missouri Corporation formerly Shawnee Credit Corporation, a Missouri Corporation) and Shawnee Credit Corporation, a Delaware Corporation, successors to the business and liabilities of Shawnee Credit Corporation, 416 City Bank Building, Kansas City, Missouri."

Attached to said amended claim, under the head of "Additional Statements," were the following:

"March 30th, 1926.

"Certificate of Incorporation of Shaw-

nee Investment Company (Missouri).

"June 25th, 1929.

"Certificate of Change of Name to

Shawnee Credit Corporation (Missouri).

"July 29th, 1929.

"Accident as reported.

"August, 1929.

"Incorporation of Shawnee Credit Cor-

poration (Delaware).

"Transfer of assets and business, sub-

"Sept. 26th, 1929.

ject to liabilities from Shawnee Credit

Corporation (Missouri), to Shawnee

Credit Corporation (Delaware).

"Shawnee Credit Corporation (Mis-

"Oct. 8th, 1929.

souri), changes name to Shawnee In-

vestment Company (Missouri)."

It will be observed that after the final award of the Commission was affirmed by the circuit court, judgment was rendered against "Shawnee Investment Company" but the motions for new trial and in arrest were made and filed by the "Shawnee Credit Corporation" and the affidavit for appeal was filed by an agent for, and the appeal was allowed to, the "Shawnee Investment Company, appellant employer."

After the appeal reached this court and was called to our attention, it was set at the head of the December call, December 7, 1931, that being the nearest available date of "precedence" to be given it as required by Section 3342, Revised Statutes of Missouri, 1929.

Before that date was reached, however, claimant Barlow (respondent), "appearing specially and for the purpose of this motion only," filed a motion to dismiss the appeal of the Shawnee Investment Company and to award ten per cent damages for frivolous appeal. This motion was ordered to be "taken with the case" whenever the latter was argued and assigned, which was done on the day heretofore mentioned, December 7, 1931.

The foregoing somewhat lengthy preliminary statement has been rendered necessary in order to properly consider and dispose of said motion to dismiss appeal, and to this motion we will now address ourselves.

ON MOTION TO DISMISS APPEAL.

The first point to be disposed of is that this appeal should be dismissed for the reason that it was not taken in time. It will be observed that the judgment affirming the Commission's final award was rendered by the circuit court at the March term (March 21, 1931), after the matters had been held under advisement from July 22, 1930, of the May term, 1930, to the March term, 1931; that on March 26, 1931 (which was within the four days allowed by Section 1005, Revised Statutes of Missouri, 1929, as one of the intervening days, March 22, 1931, was Sunday; State v. Harris, 121 Mo. 445, 26 S.W. 558), appellant under the name of Shawnee Credit Corporation filed its motions for new trial and in arrest. These motions were, at the same March term, April 25, 1931, heard and were by the court taken under advisement to the May term, 1931 (and until June 8, 1931, thereof), when they were overruled and the appeal was thereupon taken. Since, therefore, the judgment was rendered at the March term and the appeal was not taken at the same term at which the judgment was rendered, claimant contends it was therefore too late, citing State ex rel. v. Haid, 327 Mo. 567, 38 S.W.2d 44, 54, 55. This case, however, is not like the one at bar in several important particulars. In the Haid case the judgment was rendered at the October term, 1928, at which term relators filed their motion for new trial and nothing more seems to have been done or even attempted to be done at that term; but at the December term following, the motion for new trial was overruled and appeal taken. In that case too there was no need for a bill of exceptions nor for a motion for new trial in order to pave the way for an appeal. In the case at bar, there was, or appeared to be, need of a motion for new trial, and for a bill of exceptions, since the court was called upon to rule upon matters which were the subjects of objection and exception and which were dehors the record until made so by a bill of exceptions and preserved by said bill and by motion for new trial.

Furthermore unlike the Haid case, the trial court, in the case at bar, on its own motion took the ruling on the motion for new trial under advisement until the next term, at which term it was overruled and the appeal was taken. What else could the appellant employer do but to wait until the court had reached a decision on the matter? It had filed its motion at the judgment term, and had presented and argued it at that term, but the court, not being satisfied as to what should be done with the motion, took it under advisement. Matters are thus in a far different...

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