Bratt v. State Indus. Acc. Commission

• Decision Date: 02 June 1925
• Citation: 236 P. 478,114 Or. 644
• Parties: BRATT v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

236 P. 478

114 Or. 644

BRATT v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

June 2, 1925

Department 1.

Appeal from Circuit Court, Klamath County; A. L. Leavitt, Judge.

Claim No. 163852, under the Workmen's Compensation Act, by John W. Bratt, employé, before the Industrial Accident Commission. On motion to set aside the judgment of the circuit court on appeal by said Bratt, employé, from an award of compensation. Motion denied, and the Industrial Accident Commission appeals. Reversed, judgment of circuit court set aside, and new trial granted.

This is an appeal from the judgment of the circuit court of Klamath county denying the motion of the state Industrial Accident Commission to set aside a judgment of that court rendered and entered on the 25th day of March, 1924. The claimant, John W Bratt, claim No. 163852, was injured on the 24th day of August, 1923, while working for his employer in Klamath county, under the protection of the Workmen's Compensation Act. On September 13, 1923, he filed his claim with the state Industrial Accident Commission. January 7 1924, after an examination, the Commission awarded him $14. January 14, 1924, the claimant appealed to the circuit court for Klamath county. February 16, 1924, the case was heard by said circuit court. The claimant and his attorney appeared but no appearance was made by the Commission.

The Commission had no notice of the time set for the trial. The first knowledge the Commission had that the trial had been set and the judgment rendered against it was received from the court reporter in a letter in which he informed it that he was transcribing his notes, and inquired whether or not the Commission desired a copy of the testimony. Following this notice considerable correspondence was had between the office of the Attorney General and the attorney for claimant. In this correspondence the Attorney General requested that the judgment be set aside and the Industrial Accident Commission given an opportunity to be heard. The claimant responded that the judgment had not been entered and expressed a willingness to have the Commission adduce its testimony. While these negotiations were pending, the claimant caused the judgment appealed from to be entered. Thereafter, and in due season, a motion was made, supported by the affidavits of all members of the Commission and of James West, then Assistant Attorney General, having immediate charge of all cases of this nature for the Accident Commission. The motion was denied; hence this appeal.

Miles H. McKey, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), of Salem, for appellant.

C. F Stone, of Klamath Falls, for respondent.

COSHOW J. (after stating the facts as above).

At the time the claim was pending in the circuit court the following rule, made by that court, was in full force and effect:

"Rule 13--Setting Cases for Trial.

"(a) Whenever a case is at issue, the clerk shall immediately notify the court, whereupon the court will, at the next calendar day, call up and set the same for trial at any vacant date on any calendar, endeavoring to suit the convenience of all parties.

"(b) Whenever a case is set, the attorneys for each party shall be notified by postal card by the clerk, unless they were present at the time of setting the case for trial."

This rule was entirely ignored by the circuit court.

"Where a court has established rules for its government and that of suitors, there exists no discretion in the court to dispense at pleasure with their rules, or to innovate on established practice." Hughes v. Jackson, 12 Md. 463, cited with approval in Coyote G. & S. M. Co., v. Ruble et al., 9 Or. 121, 124; Schnitzer v. Stein, 98 Or. 343, 346, 189 P. 984.

No notice whatever was attempted to be given to the Industrial Accident Commission that the case had been set for trial. From an examination of the record of the trial it is doubtful that the case was ever set. It is apparent from the correspondence between the Attorney General's office and the attorney for the claimant that the latter considered the Industrial Accident Commission in default because they had not filed with the circuit court the record of the proceedings before it, as required by section 6637, Oregon Laws, prior to the amendment of 1921. The attention of the circuit court was not directed to that section, as amended in section 10, c. 311, Laws of 1921. Proceeding upon the assumption that the Industrial Accident Commission was in default, the circuit court clearly erred in a manner affecting the substantial rights of the Commission in proceeding to trial without having caused the notice to be given required by its rule No. 13.

The application to set aside the judgment was made by virtue of section 103, Oregon Laws. The record very clearly discloses that the judgment was taken without any knowledge on the part of the Commission that the case had been set for trial or without any...