Associated Grocers' Co. of St. Louis, Mo. v. Crowe, No. 24132

• Court: Missouri Court of Appeals
• Writing for the Court: CROSS; HUNTER; HOWARD
• Citation: 389 S.W.2d 395
• Decision Date: 05 April 1965
• Docket Number: No. 24132
• Parties: ASSOCIATED GROCERS' COMPANY OF ST. LOUIS, MISSOURI, a corporation, Appellant, v. S. N. CROWE, George W. Wise and Chas. E. Cates, as Members of the Industrial Commission of Missouri, and the Division of Employment Security, Respondents.

Page 395

389 S.W.2d 395 ASSOCIATED GROCERS' COMPANY OF ST. LOUIS, MISSOURI, a
corporation, Appellant,
v.
S. N. CROWE, George W. Wise and Chas. E. Cates, as Members
of the Industrial Commission of Missouri, and the
Division of Employment Security, Respondents. No. 24132. Kansas City Court of Appeals, Missouri. April 5, 1965.

Page 397

Harold A. Thomas, Jr., Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, for appellant.

Lloyd G. Poole, Jefferson City, for respondent, Industrial Commission.

CROSS, Presiding Judge.

On January 8, 1964, the Industrial Commission of Missouri, sometimes hereinafter referred to as the commission, entered its decision in a proceeding pending before it, numbered CR-417, involving the question whether one Jack Linz rendered services for appellant corporation in 'employment' as defined in the Missouri Employment Security Law by Section 288.034 V.A.M.S., or as an independent contractor. This decision consisted of an order denying Associated's application for review of the decision of the Appeals Tribunal of The Division of Employment Security to the effect that the subject individual was engaged in employment within the meaning of Section 288.030. As a result the decision of the Appeals Tribunal is deemed to be the decision of the commission for the purpose of judicial review. Section 288.200(1) V.A.M.S.

On January 28, 1964, Associated filed its petition for judicial review of the subject decision in the Circuit Court of Cole County and process was duly issued and served upon the commission. Responding thereto, the commission on February 14, 1964 filed its 'Return' under its official seal, attested by its secretary, together with the entire record of proceedings involved, duly certified by the return. On the same day the respondent Division of Employment Security filed its separate answer.

On February 17, 1964, subsequent to filing its return and certifying the record of proceedings to the circuit court, the commission filed its 'Special Appearance and Motion to Dismiss' praying dismissal of Associated's petition on the sole ground that the court lacked jurisdiction because 'this action for review was not commenced against The Industrial Commission of Missouri on or before January 28, 1964, as is required by Section 288.210 V.A.M.S.' This motion was sustained by the court and judgment entered accordingly. Associated appeals.

The sole question presented by this appeal is whether the action was commenced 'against the commission' in compliance with Section 288.210 V.A.M.S. of the Employment Security Law which provides for judicial review of decisions of the Industrial

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Commission as follows (in pertinent part): 'Within ten days after a decision of the commission has become final, the director or any other party aggrieved thereby may secure judicial review thereof by commencing an action in the circuit court * * * against the commission for the review of such decision * * *.' With respect to the form and substance of the petition, Section 288.210 requires only that it 'shall state the grounds upon which a review is sought'. There is no issue before us involving the merits of the subject matter of the commission's decision.

The caption of the petition names respondents as 'S. N. Crowe, George W. Wise and Chas. E. Cates, as members of the Industrial Commission'. The pleading is titled 'PETITION FOR JUDICIAL REVIEW OF A DECISION OF THE INDUSTRIAL COMMISSION OF MISSOURI UNDER THE EMPLOYMENT SECURITY LAW.' In the introductory paragraph the pleader 'petitions the court to review a decision of the Industrial Commission of Missouri'. In paragraph 2 it is alleged that respondents S. N. Crowe (chairman), George W. Wise and Chas. E. Cates were the members of the Industrial Commission of Missouri and that 'as such at all times herein mentioned did exercise the power provided for in * * * the Missouri Employment Security Law * * *'. Paragraph 3 identifies the decision complained of as a 'two-to-one decision' of the Industrial Commission, which affirmed and thereby denied review of the Appeals Tribunal's decision. Paragraph 4 alleges that the findings and decision of the Industrial Commission are erroneous for reasons therein set out--five in number. The prayer of the petition is 'that the said Industrial Commission of Missouri, composed of S. N. Crowe, George W. Wise and Chas. E. Cates, certify to this Court all the proceedings, * * * that this Court review the same * * * and that said action of said Commission be reversed and set aside with instructions to enter findings and decision in accordance with the dissenting opinion * * *'.

As appellant, Associated assigns that the circuit court erred in sustaining the motion to dismiss because the petition for review satisfied both the letter and spirit of the statute requiring that review proceedings be commenced 'against the commission', and effectively invoked the jurisdiction of the circuit court.

It is contended by the commission that this action was not commenced against 'The Industrial Commission of Missouri' as required by Section 288.210. Therefore, says the commission, the circuit court acquired no jurisdiction to review its decision by the filing of Associated's petition, and consequently committed no error by sustaining the motion to dismiss. Argument intended to support this contention is to the effect that the petition failed to allege that the...