City of Lincoln v. Nebraska Workmen's Compensation Court

• Decision Date: 16 July 1937
• Docket Number: 30125.
• Citation: 274 N.W. 576,133 Neb. 225
• Parties: CITY OF LINCOLN v. NEBRASKA WORKMEN'S COMPENSATION COURT ET AL.
• Court: Nebraska Supreme Court

274 N.W. 576

133 Neb. 225

CITY OF LINCOLN v. NEBRASKA WORKMEN'S COMPENSATION COURT ET AL.

No. 30125.

Supreme Court of Nebraska.

July 16, 1937

Syllabus by the Court.

The right of either party to a " compensation proceeding" to refuse to accept the findings, order award or judgment of the judge of the Nebraska workmen's compensation court who is assigned to hear the same, and to secure, in the manner provided by law, a rehearing or retrial thereof by such compensation court and a determination by a majority of the members thereof, is paramount to, and exclusive of, the right of appeal from such original decision.

Appeal from District Court, Lancaster County; Chappell, Judge.

Action in the nature of prohibition by the City of Lincoln, Neb against the Nebraska Workmen's Compensation Court and others. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Loren H. Laughlin and Geo. A. Piper, both of Lincoln, for appellant.

Richard C. Hunter, Atty. Gen., and Bert L. Overcash, Asst. Atty. Gen., for appellee Workmen's Compensation Court.

Clifford L. Rein, of Lincoln, for appellee Swadley.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, and CARTER, JJ.

EBERLY, Justice.

From the order of the district court for Lancaster county dismissing this action (which is in the nature of prohibition) for want of jurisdiction, and thereafter overruling its motion for a new trial, the city of Lincoln appeals.

The events out of which the litigation arises, include the following: On April 27, 1936, Ben Swadley filed his petition against the city of Lincoln, asserting claims under the Nebraska Workmen's Compensation Law (Comp.St.1929, § 48101 et seq., as amended). It was in usual form, and its sufficiency is not questioned. To the petition the city of Lincoln filed its answer on May 9, 1936. A trial upon the merits was had before Honorable Frank M. Coffey, one of the judges of the Nebraska workmen's compensation court, by whom findings and judgments in favor of Swadley and against the defendant city were entered of record on January 14, 1937, but not to the extent prayed for by plaintiff. On January 15, 1937, Ben Swadley, as plaintiff, filed in writing with the compensation court his refusal to accept " the findings, order, award and judgment" thus entered on January 14, 1937, for errors alleged to have been made in the determination of his claim, and applied to the compensation court for a rehearing of his cause before all of the judges of that court. On January 15, 1937, there was entered in said cause by the Nebraska compensation court an " Order for Rehearing," in substance, as follows:

" The plaintiff has filed due and timely notice of a refusal to accept the award made and entered by Judge Frank M. Coffey one of the judges of the compensation court, in the above cause on the 14th day of January, 1937, and requests that rehearing be had in said cause before the compensation court.

It is, therefore, ordered, adjudged and decreed by the court that a rehearing shall be had before the compensation court, the date of said rehearing to be determined by the compensation court, subject to the provisions of the compensation law."

Thereafter a " Notice of Rehearing" was filed on January 25, 1937, which was transmitted to the representative of the defendant city by the United States mails.

On January 25, 1937, the city of Lincoln filed with the Nebraska workmen's compensation court a " Waiver of Rehearing and Notice of Appeal," in substance, as follows:

" The city of Lincoln, Nebraska, a municipal corporation, waives a rehearing of the above named cause before the Nebraska workmen's compensation court and elects to appeal directly to the district court for Lancaster county, Nebraska, from the award of Judge Frank M. Coffey, one of the judges of the Nebraska workmen's compensation court, made and entered therein on the 14th day of January, 1937, as provided by section 48-174, Comp.St. Supp.Neb. 1935."

A certificate of this fact was thereupon issued by the Nebraska workmen's compensation court, by Frank M. Coffey, presiding judge.

Thereupon, on January 27, 1937, what is denominated a " Special Appearance" was filed by the city of Lincoln, based on the claim that the perfected appeal by the city of Lincoln from the judgment as entered by the single judge of the Nebraska workmen's compensation court operated to deprive that court of jurisdiction to further proceed in the matter, and that the district court for Lancaster county thereby obtained, " and now has full, complete and exclusive jurisdiction over the parties to this proceeding and that the present attempt by the plaintiff to obtain a rehearing is null and void and without effect, and that the application of said plaintiff for rehearing, filed January 15, 1937, and the order of the Nebraska workmen's compensation court for a rehearing, made on said 15th day of January, 1937, are null, void, and without legal effect."

Thereafter this action in the nature of prohibition was instituted by the city of Lincoln as an original action in the district court for Lancaster county.

The determination of certain questions of procedure argued with great learning and skill at the bar of this court is deemed unnecessary to the decision of this case, and will not be determined.

The determinative question is the statutory power of the compensation court, under the facts disclosed by the record, to proceed further in the determination of this action. If the jurisdiction of the compensation court over the controversy continued, obviously the action of the district court for Lancaster county in dismissing the action without reference to any question of procedure was correct.

The following statutory provisions (appearing in chapter 57, Laws 1935 [Comp.St. Supp.1935, 48-162 et seq.]) relate to the subject under consideration:

Section 1 provides in part: " There is hereby created, pursuant to the provisions of Section 1, article V of the Constitution of the state of Nebraska, a court, consisting of three judges, to be appointed by the Governor and to be known as the Nebraska Workmen's Compensation Court, which court shall have authority to administer and enforce all of the provisions of the Nebraska Workmen's Compensation Law and acts amendatory thereof except such as are committed to the courts of the appellate jurisdiction." Comp.St.Supp.1935, § 48-162.

Section 5 provides, among other things: " A majority of the judges of the Nebraska Compensation Court shall constitute a quorum to transact business and the act or decision of any two of them shall in all cases be deemed the act or decision of the said court except as provided in Section 13 [C.S.Supp.1935, 48-174] of this Act." Comp.St.Supp.1935, § 48-166.

In part, section 6 provides: " The Nebraska Workmen's Compensation Court may adopt all reasonable rules necessary for carrying out the intent and purpose of this act and shall administer and enforce all of the provisions of the Nebraska Workmen's Compensation Law and acts amendatory thereof except such as are committed to the courts of appellate jurisdiction." Comp.St.Supp.1935, 48-167.

Section 11 provides: " All disputed claims for workmen's compensation shall be submitted to the Nebraska Workmen's Compensation Court for a finding, award, order or judgment." Comp.St.Supp.1935, § 48-172.

Section 12 provides: " The words ‘ Order', ‘ Award', and ‘ Judgment' as used herein are used interchangeably and are deemed to have the same meaning." Comp.St.Supp.1935, § 48-173.

Section 13, covering the matter of procedure in the matters within its jurisdiction, after providing for pleadings of the respective parties, continues: " (4) At the expiration of the time fixed for filing the answer the court shall assign one of the judges of said court to hear the cause and make such findings, and such orders, awards or judgments as said court or judge is authorized by law to make, and such findings, orders, awards and judgments shall be signed by the judge before whom such proceedings were had. When proceedings are had before a judge of said court, his findings, orders, awards and judgments shall be conclusive upon all parties at interest unless reversed or modified upon appeal as hereinafter provided. (5) Either party at interest who refuses to accept the findings, order, award or judgment of the said judge may, within fourteen days after the date thereof, file with the said court an application for a rehearing, plainly stating the errors on which such party relies for reversal or modification. Such party shall at the same time file with said court, copies of such application for the other party at interest. The said court shall then immediately serve upon such other parties by mail or otherwise, as elsewhere herein provided, a copy of said application for rehearing, and within thirty days thereafter shall proceed to hear said cause de novo, and a shorthand record shall be made of all testimony and evidence submitted in such proceedings. The hearing by the said court shall be held in Lancaster County, Nebraska, or in any other county in the state in the discretion of the court. Within fourteen days after such hearing the said court shall make its findings, order, award or...