Carter v. State Dept. of Social Welfare

• Decision Date: 23 January 1960
• Docket Number: No. 41738,41738
• Citation: 186 Kan. 187,348 P.2d 609
• Parties: Mary CARTER, Appellee, v. STATE DEPARTMENT OF SOCIAL WELFARE, State of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 609

348 P.2d 609

186 Kan. 187

Mary CARTER, Appellee, v. STATE DEPARTMENT OF SOCIAL WELFARE, State of Kansas, Appellant.

No. 41738.

Supreme Court of Kansas.

Jan. 23, 1960.

Rehearing Denied March 9, 1960.

Syllabus by the Court.

Following City of Wichita v. Houchens, 184 Kan. 297, 335 P.2d 1117, the record on appellate review of an order of the district court dismissing the apeal of the State Department of Social Welfare from an award of compensation by the Workmen's Compensation Commissioner in favor of the claimant for lack of prosecution is examined and it is held to disclose no error or an abuse of judicial discretion by the district court.

J. A. Babicki, Topeka, argued the cause, and John Anderson, Jr., Atty. Gen., Hart Workman, Charles V. Hamm and William W. Dimmitt, Jr., Topeka, were with him on the briefs, for appellant.

W. L. Parker, Jr., Topeka, argued the cause, and Robert L. Kimbrough, George E. McCullough, Walter N. Scott and Floyd E. Gehrt, Topeka, were with him on the briefs, and appellee.

FATZER, Justice.

This appeal is from an order of the district court dismissing the appeal of the State Department of Social Welfare from an award entered by the Workmen's Compensation Commissioner for lack of prosecution.

The parties were before this court in 1959 (Carter v. State Department of Social Welfare, 184 Kan. 825, 339 P.2d 5).

The pertinent facts of this record are summarized: On June 2, 1958, the Workmen's Compensation Commissioner made an award of temporary total disability in favor of the claimant appellee, Mary Carter.

On June 13, 1958, the State Department of Social Welfare perfected its appeal from that award, and the same was docketed and assigned to the first division of the district court of Shawnee County, Kansas.

When the September 1958 term of the district court opened, the appeal was not called for trial and on December 1, 1958, the appellant filed its motion to have the matter set for hearing. Because there was another action pending between the parties in the second division of the district court involving G.S.1949, 44-512a, the clerk of the court erroneously assigned that motion to the second division, notwithstanding the pleading showed on its face it was to have been filed in the motion docket of the first division. When the appellant discovered the error, it dismissed the motion in the second division and refiled it in the first division.

After making inquiry as to how long a hearing of the appeal would take, the court in recess (the date not shown by the record) advised counsel for the appellant the matter would be set specially for disposition. No further action was taken by either party to set the appeal for hearing despite the fact that the January term of the district court opened on the second Monday in January 1959, and the April term commenced on the first Monday in April 1959.

On June 16, 1959, there appeared in the Topeka Daily Legal News a list of cases which was denominated 'Court Cases' in the first division. Under that caption appeared: 'The following cases are set for disposition or assignment for trial on Monday, June 22nd, 1959.' Among the 42 cases listed were the cases of Bentley v. State Department of Social Welfare and Carter v. State Department of Social Welfare When the docket of cases was called on June 22, 1959, those two cases were among the ones called. Counsel for neither the appellee nor the appellant appeared. The court then dismissed the instant case but continued the Bentley case. Counsel for the appellant stated in its brief that the Bentley case was one arising under G.S.1949, 44-512a, and its dismissal for want of prosecution would have benefited the appellant, but that the Carter case, which was detrimental to the appellant, was the only one dismissed.

On June 23, 1959, the appellant filed its motion to reinstate the appeal. The court heard the motion and denied it, hence this appeal.

The appellant contends the dismissal of its appeal was prejudicial to its rights to a trial upon the merits and that the refusal to reinstate the appeal was an abuse of discretion particularly in view of...