Elles v. Indus. Comm'n

• Decision Date: 12 December 1940
• Docket Number: No. 25283.,25283.
• Citation: 375 Ill. 107,30 N.E.2d 615
• Parties: ELLES v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

375 Ill. 107

30 N.E.2d 615

ELLES

v.INDUSTRIAL COMMISSION et al.

No. 25283.

Supreme Court of Illinois.

Dec. 12, 1940.

Error to Circuit Court, Williamson County; D. F. Rumsey, Judge.

Proceeding under the Workmen's Compensation Act by Orian J. Elles, executrix of the estate of Albert K. Elles, deceased, claimant, opposed by the Herrin Supply Company, employer, and the Hardware Casualty Company, insurance carrier. To review a judgment of the circuit court which reversed an award of the Industrial Commission which reversed finding of arbitrator in favor of claimant, claimant brings error.

Reversed and remanded with directions.Charles C. Murrah, of Herrin, for plaintiff in error.

Stone & Fowler, of Marion, for defendants in error.

FARTHING, Justice.

Plaintiff in error filed with the Industrial Commission a claim for compensation on account of the death of Albert K. Elles, her husband. After a hearing, the arbitrator entered an award in her favor and against the Herrin Supply Company. On review before the Industrial Commission the Hardware Casualty Company was made a party respondent, additional evidence was introduced, and the commission reversed the finding of the arbitrator on the ground that Elles, at the time of the accident, was acting as executive manager of the Herrin Supply Company and was, therefore, not entitled to compensation. On certiorari to the circuit court of Williamson county the cause was designated ‘Law No. 3967.’ That court reversed the decision of the Industrial Commission and directed that it hear additional evidence.

At the conclusion of this hearing the commission again entered an award denyingcompensation. Plaintiff in error received notice of this decision July 12, 1937. Seven days later she filed with the circuit clerk of Williamson county a praecipe for a writ of certiorari and writs of scire facias, together with a receipt from the Industrial Commission showing the probable cost of the transcript of the record had been paid. On the same day, the clerk issued a writ of certiorari to the Industrial Commission and writs of scire facias to the Herrin Supply Company and the Hardware Mutual Casualty Company, returnable August 10, 1937, which date fell on a Tuesday, mailed copies to them, and made his certificate of mailing. All these instruments were filed and given the number ‘Law No. 3967’ and placed in the files designated ‘Orian J. Elles, Executrix of the Estate of Albert K. Elles, deceased, Petitioner, v. Herrin Supply Company, a corporation, and Hardware Mutual Casualty Company, a corporation, respondents.’ No filing fee was paid. The Industrial Commission filed a transcript of the record. Defendants in error entered a special appearance for the sole purpose of questioning the jurisdiction of the circuit court and moved to quash the writ of certiorari on these grounds: (1) The case was not filed in the circuit court within twenty days after July 12, 1937, the date on which plaintiff in error received notice of the decision of the commission; (2) the claim should have been filed by plaintiff in error individually instead of as executrix, and (3) the writs of certiorari and scire facias were not returnable on a first or third Monday. Plaintiff in error filed a motion to strike the words ‘Executrix of the estate of Albert K. Elles,’ wherever they appeared and to change the date ‘10th’ to ‘9th’ throughout the record. This motion was denied and a judgment of dismissal entered. We allowed a petition for writ of error to review that judgment.

Defendants in error assert the requirement of section 19(f) 1 of the Workmen's Compensation act (Ill.Rev.Stat.1939, chap. 48, par. 156(f)(1) that ‘such suit by writ of certiorari shall be commenced within twenty days of the receipt of notice of the decision of the commission’ was not met for the reason that the $10 docket fee was not paid and also because this suit was not given a new number but was designated as ‘Law No. 3967,’ the same number as the first certiorari suit. It is not disputed that this new decision of the Industrial Commission could be reviewed only by a new and independent writ of certiorari. Western Shade Cloth Co. v. Industrial Comm., 325 Ill. 570, 156 N.E. 796. They rely on section 31 of the Fees and Salaries act (Ill.Rev.Stat.1939, chap. 53, par. 31) which, in part, provides that ‘The fees of the clerk of the circuit court * * * shall be paid in advance,’ etc. It is true this provision was not complied with, but such a failure does not go to the matter of jurisdiction. The praecipe was actually filed and the writs of certiorari and scire facias were issued by the clerk. The fact that payment of the filing fee in advance was not insisted on by the clerk did not prevent the court from acquiring jurisdiction, (Dowie v. Chicago, Waukegan & North Shore Railway Co., 214 Ill. 49, 73 N.E. 354) nor did the clerk's failure to enter a new case on the docket as provided by section 16 of the act relating to clerks of courts (Ill.Rev.Stat.1939, chap. 25, par. 16) and rule No. 23 of this court (370 Ill. 27) affect the court's jurisdiction. The requirements are merely directory to the clerks. Day v. Graham, 1 Gilman 435,6 Ill. 435.

It is argued the writ of certiorari was properly quashed because the claimant was described in the application for adjustment of claim as ‘Orian J. Elles, Executrix of the Estate of Albert K. Elles, Deceased,’ instead of as Orian J. Elles individually or as widow. Section 7(g) of the Workmen's Compensation act (Ill.Rev.Stat.1939, chap. 48, par. 144(g) states that compensation in death cases shall be paid ‘to the persons who form the basis for determining the amount of compensation to be paid by the employer, the respective shares to be in the proportion of their respective dependency at the time of the injury,’ etc. The record discloses that Orian J. Elles was the sole dependent of the deceased employee. It also shows that, at the suggestion of one of the attorneys for the employer, it was stipulated that notice and demand were duly and properly given, and, in counsel's own language: ‘We can stipulate that Orian J. Elles is the legal widow of Albert K. Elles and dependent upon him under the provisions of the act.’ He further stipulated she was the duly qualified and acting executrix and ‘that it is the same executrix that is the widow.’ Later he stated: ‘We have stipulated the dependency of the...