Kelley v. Prouty

• Decision Date: 25 February 1933
• Docket Number: 5970-A
• Citation: 19 P.2d 1061,52 Idaho 743
• Parties: C. B. KELLEY, Respondent, v. CARL PROUTY, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

19 P.2d 1061

52 Idaho 743

C. B. KELLEY, Respondent, v. CARL PROUTY, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 5970-A

Supreme Court of Idaho

February 25, 1933

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Motion to dismiss appeal. Appeal dismissed.

Motion to dismiss appeal granted and appeal dismissed.

Paris Martin, for Appellants.

E. B Smith, for Respondent.

HOLDEN J. Budge, C. J., and Givens, J., concur. Morgan, J., was disqualified, and took no part in the decision.

OPINION

HOLDEN, J.

Respondent moves to dismiss the appeal from an order denying appellants' motion for a new trial. November 17, 1921 the Industrial Accident Board awarded the respondent $ 4,800, four hundred weeks at $ 12 per week. On the eleventh day of September, 1931, nearly ten years afterwards, respondent caused judgment to be entered against the appellants, based upon a certified copy of the award of the Industrial Accident Board, for compensation at the rate of $ 12 per week, commencing February 17, 1921, and ending October 14, 1928. It appears from the record that respondent had been paid the sum of $ 4,580 at the time the said judgment was taken. Following the entry of said judgment in the district court, and on the ninth day of October, 1931, respondent filed a partial satisfaction of said judgment acknowledging the receipt of the said sum of $ 4,580. September 21, 1931, appellants filed notice of motion for a new trial, and on the twenty-sixth day of September, 1931, filed a motion for a new trial. On the seventeenth day of October, 1932, appellants' motion for a new trial was denied.

Respondent's motion to dismiss this appeal presents the question as to whether an appeal lies from an order of the district court denying appellants a new trial, where a judgment has been rendered and entered based upon a certified copy of an award of the Industrial Accident Board, no appeal having been taken from the award.

I. C. A., sec. 43-1410, provides as follows:

"Any party in interest may file in the district court for the county in which the injury occurred, if such injury occurred within the state, otherwise in the district court for the county where the employer resides, a certified copy of a decision of the board awarding compensation from which no appeal has been taken within the time allowed therefor, or a certified copy of a memorandum of agreement, approved by the board, whereupon said court shall, without notice, render a decree or judgment in accordance therewith, and notify the parties thereof. Such decree or judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said decree or judgment had been rendered in a suit duly heard and determined by said court, and shall with like effect be entered and docketed, except that there shall be no appeal therefrom, and the same shall not constitute a lien upon the real property of the employer unless execution be levied thereon."

The respondent caused judgment to be rendered and entered against appellants under that section. It will be observed it is provided that a decree or judgment rendered upon a certified copy of a decision of the Industrial Accident Board shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said decree or judgment had been rendered in a suit duly heard and determined by the court, and shall with like effect be entered and docketed, except that there shall be no appeal therefrom.

Section 9, article 5, of the state Constitution provides: "The Supreme Court shall have jurisdiction to review, upon appeal any decision of the district courts, or the judges thereof." Section 13, article 5, of our Constitution, provides: "The legislature shall have no power to deprive the judicial department of any...