Grasselli Chem. Co. v. Simon, 25234.

Decision Date18 April 1929
Docket NumberNo. 25234.,25234.
Citation166 N.E. 2,201 Ind. 41
PartiesGRASSELLI CHEMICAL CO. v. SIMON et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Lake Circuit Court; E. Miles Norton, Judge.

Suit by the Grasselli Chemical Company against Mary Simon and others. From a judgment for defendants on demurrer, plaintiff appeals. Affirmed, and temporary injunction dissolved.

See, also, 84 Ind. App. 327, 150 N. E. 617.

Ibach, Gavit, Stinson & Gavit, of Hammond, and M. H. Miller, of Indianapolis, for appellant.

More N. Oppman, of Gary, and George E. Hershman, of Crown Point, for appellees.

GEMMILL, J.

This is an action brought by the appellant in the Lake circuit court, seeking to enjoin the appellees Mary Simon, Benjamin H. Strong, as sheriff of Lake county, Ind., and John Killigrew, as clerk of the Lake circuit court, from enforcing or attempting to enforce an award of the Industrial Board and the judgment of the Lake circuit court, rendered upon an award in favor of the appellee Mary Simon, and against the appellant, upon the theory that the award and judgment were both rendered without jurisdiction on the part of the Industrial Board and the Lake circuit court, and that to enforce the award and the judgment against the appellant would deprive it of its property without due process of law. The action also was for the purpose of vacating the judgment and of quieting title to the real estate of the appellant in Lake county, Ind., as against the supposed lien of the judgment rendered upon the award.

The appellees filed a demurrer to the complaint for insufficient facts, for the reasons that: (1) The action of the Industrial Board and the Appellate Court were conclusive upon the appellant. (2) That, the award of the Industrial Board having been affirmed by the Appellate Court, said decision was final and conclusive upon appellant. (3) That the action was a collateral attack upon the award of the Industrial Board. (4) The facts set out in the complaint showed that the Industrial Board had jurisdiction and that the circuit court had jurisdiction to render the award and judgment. (5) The appellant, having elected to come within the provisions of the Workmen's Compensation Act, had waived its constitutional rights in regard to the act.

The cause was submitted to the court upon the appellees' demurrer, and the demurrer was sustained, to which ruling the appellant duly excepted, and, refusing to plead further, judgment was rendered against it.

On appeal, the appellant assigns errors, as follows: (1) The court erred in sustaining appellees' demurrer to the appellant's complaint and petition. (2) The court erred in entering judgment against appellant on June 8, 1926.

The material allegations of the complaint are as follows:

The appellant, Grasselli Chemical Company, prior to February 24, 1923, had elected to come within the provisions of the Workmen's Compensation Act of Indiana. On that date one Joseph Simon, the husband of the appellee Mary Simon, and with whom she was living, was an employee of appellant. On said date, Simon came to death by drowning in the Calumet river, leaving the appellee Mary Simon as his sole dependent. Appellant was notified of decedent's death, but no settlement or compensation was paid or offered to the widow, Mary Simon; said appellant at all times denying liability. During the month of January, 1925, the widow and appellee, Mary Simon, filed her claim with the Industrial Board asking for an award of compensation against the appellant. Appellant appeared to this petition and contested its liability before the Industrial Board, and such proceedings were had that the full Industrial Board on May 23, 1925, made a finding that said Joseph Simon came to his death by an accident arising out of and in the course of his employment and awarded compensation to the widow, Mary Simon. The appellant, in appearing to said petition to the Industrial Board and contesting its liability, filed no special answer of any nature or description, and did not set up any defense of confession and avoidance.

From the award so made by the Industrial Board, appellant prosecuted an appeal to the Appellate Court of Indiana, and thereafter on December 17, 1925, the Appellate Court, by an opinion duly rendered, affirmed said award. Grasselli Chemical Co. v. Simon, 84 Ind. App. 327, 150 N. E. 617.

Thereafter appellant refused to pay any part or portion of the award so made by the Industrial Board, and which was affirmed by the Appellate Court of Indiana, and thereafter, on June 8, 1926, in accordance with section 62 of the Indiana Workmen's Compensation Act, and being section 9507, Burns' 1926, the appellee Mary Simon filed in the circuit court of Lake county, Ind., a certified copy of the judgment or award made by the full Industrial Board of the state of Indiana, and also a certified copy of the opinion and judgment of the Appellate Court affirming the judgment or award by the Industrial Board, and the said Lake circuit court, in accordance with the terms and provisions of the statute hereinabove referred to, on said date, rendered judgment upon said award, that the appellant pay the sum of $2,357.20 and the further sum of $13.20 per week, payable weekly for 129 weeks, together with all costs laid out and expended.

That said award and said judgment are wholly void and deprive the appellant of property without due process of law, for the reason that the Workmen's Compensation Act provides in section 58 that, if the employer and injured employee or his deputy fail to reach an agreement in regard to the compensation payable under this act, either party may make an application to the Industrial Board for the determination of the matters in dispute. That the aforesaid Industrial Board had no jurisdiction to award compensation to the said Mary Simon. In the proceedings had before said Industrial Board, it was necessary for said Mary Simon to allege and prove that the said Grasselli Chemical Company and said Mary Simon as dependent had failed to reach an agreement in regard to the compensation payable; that the said Mary Simon had in fact alleged in her claim for compensation that the parties disagreed as to the liability and amount of the compensation; but the Grasselli Chemical Company alleges that prior to the date of the filing of said claim for compensation said parties had not disagreed as to the compensation payable, and said claim for compensation was filed by Mary Simon with the Industrial Board before any steps had been taken by Mary Simon, as dependent of said Joseph Simon, to agree with the Grasselli Chemical Company as to the liability and the amount of compensation payable; and that, in the trial of said claim before the Industrial Board, said Mary Simon introduced no evidence whatever to sustain said allegation in her claim or to prove that before the filing of said claim the parties had disagreed as to the compensation payable.

That said board was without jurisdiction to hear and determine the claim of said Mary Simon, and was without jurisdiction to enter an award in said, matter as against the Grasselli Chemical Company. That by reason thereof the Grasselli Chemical Company has been and is being deprived of its property without due process of law, and is being deprived of equal application of the law, contrary to the Fourteenth Amendment of the United States Constitution, and contrary to sections 21 and 23, art. 1, of the Constitution of the State of Indiana. That the purported judgment rendered by the Lake circuit court, as aforesaid, upon said award, is void and of no effect, for the reason that it is founded on said void award. That said judgment is void and of no effect, for the reason that said judgment was rendered by the Lake circuit court without any jurisdiction and for the reason that the said Grasselli Chemical Company had no notice of the pendency of any action upon said award for the reason that no process was issued by that court in any cause of action then filed in that court, and that, in rendering judgment, the Lake circuit court violated section 20 of article 1 of the State Constitution, for the reason that the appellant was deprived of right of trial by jury.

It appears from the brief of appellees that appellee Mary Simon caused notice of the fact that judgment was rendered upon said award to be issued and served upon the appellant. On December 16, 1926, the appellees having heretofore filed application for certiorari, the same was granted by this court and writ issued, and said notice, together with sheriff's return, was brought into the record in this court as shown by the clerk's return to the writ, which said notice and sheriff's return indorsed thereon read as follows:

State of Indiana, County of Lake-ss.:

“In the Lake Circuit Court, April Term, 1926.

Mary Simon v. Grasselli Chemical Company.

No. 17204.

“The defendant, Grasselli Chemical Company, is hereby notified that on June 8th, 1926 The Lake Circuit Court, entered judgment against said defendant, in the above entitled cause on the award of the Industrial Board rendered by said Board and affirmed by the Appellate Court of the State of Indiana, as appears from the certified copies of the award of said Board and the opinion of said Appellate Court which judgment was in the sum of Two Thousand and Three Hundred Fifty Seven and 20-100 ($2,357.20) Dollars, plus One Hundred ($100.00) Dollars for funeral benefits, and the sum of Thirteen and 20-100 ($13.20) Dollars payable weekly for 129 weeks from the 8th day of June, 1926.

“You will therefore govern yourselves accordingly

[Seal] [Signed] John Killigrew,

“Clerk of the Lake Circuit Court.

“Came to hand the 8th day of June, 1926.

“I served this writ the 10th day of June, 1926, on the within named defendant, Grasselli Chemical Company, by reading to and in the hearing and by delivering a true copy of the same to George Kingston, Chief Clerk of said defendant, at East Chicago, Indiana, within said...

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