Childers v. Stephenson

• Decision Date: 06 February 1959
• Citation: 320 S.W.2d 797
• Parties: Jessie CHILDERS, Petitioner, v. James B. STEPHENSON, Judge, etc. Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 797

320 S.W.2d 797

Jessie CHILDERS, Petitioner, v. James B. STEPHENSON, Judge, etc. Respondent.

Court of Appeals of Kentucky.

Feb. 6, 1959.

Dan Jack Combs, Pikeville, for petitioner.

John M. Stephens, Pikeville, for respondent.

MONTGOMERY, Chief Justice.

Jessie Childers filed his petition in this court against James B. Stephenson, as Judge, Civil Division, Pike Circuit Court, seeking relief by way of mandamus or prohibition.

Childers, as an employee, filed his claim against Hackney's Creek Coal Company with the Workmen's Compensation Board. The referee awarded him compensation for total permanent disability. On full board review, by an order dated April 1, 1958, the referee's award was set aside and the claim was dismissed. On April 15, 1958, the board, sua sponte, entered an order setting aside its order of April 1, 1958, and the cause was placed on the motion docket for further disposition.

Childers, on April 19, 1958, filed a petition for review, designated as Civil Action No. 3151, in the Pike Circuit Court, in which he asked that the April 1 order of the compensation board be adjudged void and set aside and that the cause be referred to the board, with direction to award Childers compensation on the basis of total permanent disability. The reason assigned for filing the petition was that the petitioner had doubt as to the board's right to set aside its order of April 1, 1958. No mention of the April 15 order is contained in the petition for review.

Judgment was entered in the Pike Circuit Court affirming the board's order of April 1, 1958, insofar as Childers' claim was dismissed and setting aside the order insofar as it held that the employer had timely notice of the employee's claim for compensation. By this original action, Childers seeks 'to prohibit Respondent from entertaining Civil Action No. 3151 and manditorily (sic) requiring him to set aside his judgment heretofore entered on the ground that same is void for want of jurisdiction; manditorily (sic) requiring Respondent to remand the record to the Workmen's Compensation Board of Kentucky until a majority of said Board can concur in a final disposition of said action.'

The relief sought is by mandamus or prohibition. This Court has power to issue such writs as may be necessary to give it general control over courts of inferior jurisdiction. Kentucky Constitution, Section 110; Board of Prison Commissioners v. Crumbaugh, 161 Ky. 540, 170 S.W. 1187. Two of the means by which such control may be exercised are writs of mandamus and prohibition.

A writ of mandamus will be issued to compel a court of inferior jurisdiction to take such action as the law makes it mandatory it should take. Shoemaker v. Hodge, 111 Ky. 436, 63 S.W. 979, 23 Ky. Law Rep. 736; Kelly v. Toney, 95 Ky. 338, 25 S.W. 264, 15 Ky.Law Rep. 718; Louisville Industrial School of Reform v. City of Louisville, 88 Ky. 584, 11 S.W. 603, 11 Ky.Law Rep. 109; Terry v. Baker, 23 Ky.Law Rep. 2406, 67 S.W. 258; Commonwealth v. Cantrill, 25 Ky.Law Rep. 20, 74 S.W. 691; Davidson v. Lewis, Judge, 159 Ky. 798, 169 S.W. 538. However, this Court will not attempt to control the discretion of an inferior court by issuance of such writ. Atkinson v. Riley, 23 Ky.Law Rep. 731, 63 S.W. 752; Alexander v. Moss, 28 Ky.Law Rep. 171, 89 S.W. 118; Williams v. Howard, 192 Ky. 356, 233 S.W. 753; Union Trust Company v. Garnett, 254 Ky. 573, 72 S.W.2d 27. When the circuit court has entered a final judgment, mandamus will not lie. Taylor v. Stevenson, 309 Ky. 68, 215 S.W.2d 947. Accordingly, mandamus is not available as a remedy to the petitioner.

The bases for the issuance of a writ of prohibition to control the action of an inferior cou...