Durkin v. Hey

• Decision Date: 10 April 1941
• Docket Number: No. 26003.,26003.
• Citation: 376 Ill. 292,33 N.E.2d 463
• Parties: DURKIN, Director of Labor, v. HEY et al.
• Court: Illinois Supreme Court

376 Ill. 292

33 N.E.2d 463

DURKIN, Director of Labor,

v.HEY et al.

No. 26003.

Supreme Court of Illinois.

April 10, 1941.

Proceeding by Martin P. Durkin, Director of Labor, against Clement Hey and others, on petition to compel Clement Hey and others to produce records for investigation under Unemployment Compensation Act. From an order granting the relief sought, Clement Hey and others appeal.

Reversed and remanded with directions.Appeal from Circuit Court, Whiteside County; A. J. scheineman, judge.

J. J. Ludens, of Sterling, for appellants.

George F. Barrett, Atty. Gen. (Joe A. Pearce and Frederick Zazoze, both of Chicago, of counsel), for appellee.

SMITH, Justice.

This is an appeal from an order of the circuit court of Whiteside county denying a motion of appellants to vacate a prior order of the court requiring them to produce and submit to the inspection of appellee their general ledger and other records. Appellants are engaged in the milk products business in the city of Sterling in Whiteside county.

The proceeding was instituted under section 12 of the Unemployment Compensation act (Ill.Rev.Stat.1939, chap. 48, par. 228). The petition was filed by appellee in the circuit court of Whiteside county on September 13, 1940. Copies of the petition, with notice that it would be presented to the court on a day named in the notice, and an order in conformity therewith would be asked, were sent by appellee to appellants by registered mail. On October 9, 1940, the day named in the notice on which the petition would be presented to the court, appellants filed their limited appearance objecting to the jurisdiction of the court because they had not been served with a summons. The record shows that on October 9, 1940, the cause was heard by the court on the petition, the limited appearance of the defendants for the purpose only of objecting to the jurisdiction of the court to proceed further, the arguments of counsel and that it was taken under advisement.

On October 10, 1940, the court entered an order in which it found that due notice had been given the defendants, and overruled their objections to the jurisdiction of the court. By that order, the court made findings substantially in accordance with the allegations of the petition. It was found by the court that it was appellee's duty under the act to ascertain the identity of each employing unit and determine whether it is liable to make payments thereunder; that appellants are doing business in this State; that appellee has instituted an inquiry to determine their liability; founds the necessity of inspecting their books and records, specifically the general ledger, and appellant's refusal to submit the general ledger to inspection after demand. The order required appellants to produce at the court room in the city hall at the city of Sterling, the general ledger and all other books and records showing in full and complete detail the number of persons rendering services in the business from July 11, 1937, to June 30, 1939; their names, duration of service and the wages paid or payable to each of them, and then and there to submit such records to the inspection of Robert H. Meeske or any other authorized representative of appellee at any time he may elect within twenty days from the date of the order, upon written notice by mail from appellee.

On October 15, 1940, appellants filed their motion to vacate the order entered on October 10, 1940. On October 17, 1940, appellants, by their attorney of record, entered their general appearance in writing. By their motion to vacate the order entered on October 10, 1940, appellants asked that they be allowed to appear in the cause, defend, produce evidence and contest the matters alleged in the petition; they denied the institution of any inquiry by appellee and denied that their general ledger gives any information as to the number of employees or the amount of salaries paid to them; they allege the order was void as infringing the State and Federal constitutional provisions as to unreasonable searches and seizures, and further challenged lenged the constitutionality of the statute for the reason that it was alleged that it contained no provision for a hearing prior to the entry of an order, and, for that reason, violated the due process clause of both the State and Federal constitutions. Other grounds are alleged which need not be noticed here.

The general appearance of appellants in the cause eliminates any question as to jurisdiction of their persons.

At the threshold of the inquiry we are met with appellee's motion to dismiss the appeal on the ground that the order appealed from is interlocutory and that this court has no jurisdiction under the provisions of sections 77 and 78 of the Civil Practice act (Ill.Rev.Stat.1939, chap. 110, pars. 201, 202) or under rule No. 31 of this court, Ill.Rev.Stat.1939, c. 110, § 259. 31 (370 Ill. 31). The motion was taken with the case. It is fundamental that the right to appeal is strictly statutory. Section 77 of the Civil Practice act provides only for appeals from final judgments, orders, or decrees. Section 78 embraces only appeals to the Appellate Court from interlocutory orders in injunction and receivership proceedings. Further provisions relating to proceedings in the Appellate Court follow in the above rule. This rule is merely supplementary to section 78 of the Civil Practice act and does not in any way expand or alter the provisions of section 77, nor was it so intended.

The Unemployment Compensation act became effective on July 1, 1937. Section 14 of that act provides, in part, as follows: ‘Judgments and orders of the Circuit Court under this Act shall be reviewed only by the Supreme Court upon a writ of error which the Supreme Court in its discretion may order to issue, if applied for within thirty days after the rendition of the Circuit Court judgment or order sought to be reviewed.’ It is, therefore, apparent that the proper method provided by statute for the review of the orders of the character here involved is by writ of error and not by appeal. Nevertheless, rule No. 28 of this court (370 Ill. 29) provides that: ‘If appeal be improvidently employed where the proper method of review is by writ of error, this alone shall not be a ground for dismissal, but if the issues of the case sufficiently appear upon the record before the court of review, the case shall be considered as if the proper method of review had been employed.’ The notice of appeal was filed on October 19, 1940. We must, therefore, treat the case, if the order in question is a reviewable order, as properly before this court, ‘even though the statutory method of review has not been employed.’

Appellee claims, in his motion to dismiss the appeal, that this was not a final appealable order but merely interlocutory.

In Ellis v. Interstate Commerce Commission, 237 U.S. 434, 35 S.Ct. 645, 646, 59 L.Ed. 1036, where the trial court ordered a witness to answer questions and produce records in an inquiry by the Interstate Commerce Commission, the United States Supreme Court, on appeal, said: ‘There is no doubt that this appeal lies. The order is not like one made to a witness before an examiner or on the stand in the course of a proceeding inter alios in court. Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686. It is the end of a proceeding begun against the witness. Interstate Commerce Commission v. Baird, 194 U.S. 25, 24 S.Ct. 563, 48 L.Ed. 860.’

In the Baird case, cited above, which was also a proceeding for compulsory production of evidence before the Interstate Commerce Commission, the Supreme Court said [194 U.S. 25, 24 S.Ct. 566, 48 L.Ed. 860]: ‘The present proceeding is not merely advisory to the Commission, but, as was said in Interstate Commerce Commission v. Brimson, 154 U.S. 447 , 38 L.Ed. 1047, 4 Interst.Com.R. 545, a...