Marsh v. Aljoe

• Decision Date: 10 December 1929
• Docket Number: 1607
• Parties: MARSH v. ALJOE, ET AL. [*]
• Court: Wyoming Supreme Court

282 P. 1055

41 Wyo. 119

MARSH v. ALJOE, ET AL. ^[*]

No. 1607

Supreme Court of Wyoming

December 10, 1929

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

Proceedings under the Workmen's Compensation Act by Catherine Marsh guardian of Charles W. Marsh and on behalf of Charles W Marsh, employee and claimant, against Sam Aljoe, employer. On petition of W. H. Edelman, State Treasurer, to reopen case. From an order denying petition, the treasurer appeals.

Heard on motion to dismiss.

Motion Denied.

For the respondent there was a brief by I. G. McCann of Casper Wyoming, in support of motion to dismiss appeal.

The State Treasurer failed to perfect his appeal as required by law, and this court is without jurisdiction, said appeal not having been filed within the statutory time; the attorney general should represent respondent and not appellant. The appellate procedure is governed by Secs. 1 and 15 of Laws of 1917. The statute 6415 C. S. clearly indicates that a direct appeal "is a separate and independent method of reviewing civil and criminal cases in the Supreme Court" and did not modify or replace any provision of existing laws relating to proceedings in error. Compensation cases are governed by special procedure. 4327 C. S. Either the direct appeal statute repeals Sec. 4328 C. S., or it does not apply to compensation cases. Midwest Hotel Co. v. State Board of Equalization, 39 Wyo. 461. The several points in conflict as between the Compensation Act, and the direct appeal statute, may be noted in Sec. 4328. Appellant is allowed 70 days to perfect his appeal. Laws 1917, Ch. 32, Sec. 4, whereas the Compensation Act requires the filing of record on appeal within 30 days from the date of decision. Laws 1915, Ch. 125, Sec. 13; Laws 1925, Ch. 124, Sec. 2. The Workmen's Compensation Law contemplates speedy adjustment of claims. Martini v. Coal Co., 38 Wyo. 172, 179; Standard Oil Co. v. Buchanan, 39 Wyo. 372, 4328 C. S. Apparently the State Treasurer may appeal from an order awarding, or an order declining compensation even though he be not a party to it. Laws 1923, Ch. 60. In view of the peculiar provisions of Sec. 4328 C. S. there is an apparent conflict in the prescribed duties of the attorney general as to whether he shall represent the workman or the State Treasurer.

For the appellant there was a brief by Wm. O. Wilson, Attorney General, and Richard J. Jackson, Assistant Attorney General, in resistance of the motion.

There was no direct appeal statute at the time the Compensation Act was passed, so proceedings in error were therein mentioned as a mode of review. Ch. 124, Laws 1925, Sec. 2, refers to proceedings in error, and Sec. 5 of the same Act, refers to appeals. The case of Midwest Hotel Co. v. Board, 39 Wyo. 461, is not applicable here, for the reason that in that case the law made no provision for an appeal, whereas the Workmen's Compensation Act does. It was not intended by Sec. 4328, amended by Laws 1925, Ch. 24, Sec. 2, to restrict courts to making but one order extending time of appeal; successive extensions may be granted by successive application made before the expiration of the seventy day period. White Auto Co. v. Hamilton, et al., 29 Wyo. 109; Miller v. New York Oil Co., 32 Wyo. 483; Megown v. Fuller, 37 Wyo. 61. There is an apparent conflict in Chap. 124, Laws 1925, as to whether the attorney general shall represent the workman, or the State Treasurer. In appeals taken in Workmen's Compensation cases, where there is a conflict in provisions of the same act, the last in order of arrangement controls. 36 Cyc. 1130. So, in the present case, it would seem to be the duty of the attorney general to represent the State Treasurer, and that the other attorney representing the injured workman, should represent him in the Supreme Court. The paramount duty of the attorney general is to represent the state and its elective and appointive officers. By representing the State Treasurer in cases where the workman is not entitled to compensation, the attorney general is protecting and conserving the fund maintained by employers so that it may be available in proper cases.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This case, here by direct appeal, has been submitted upon respondent's motion to dismiss. The proceeding below was one instituted under the Workman's Compensation statutes of this state and resulted in two awards totalling $ 4635.81 in favor of the respondent, who was the alleged employee and the claimant in the District Court. These awards were made on the 24th day of May, 1929, and the orders allowing them were also on that day filed in the office of the clerk of that court.

Thereafter and on June 3, 1929, William H. Edelman, as Treasurer of the State of Wyoming, filed his petition stating that the orders of award aforesaid were received in his office on May 27, 1929, and requesting, upon various grounds in said petition specifically set forth, that the trial court enter an order reopening the case. This the court declined to do, and an order to that effect was made on July 18, 1929, filed July 20, 1929, and apparently entered on the journals of the court on the 22nd of that month. It is from this order that this appeal is prosecuted by the State Treasurer.

On July 30, 1929, the officer last mentioned served upon respondent's counsel a notice of appeal, which was on the same day filed in the clerk's office of said District Court. Subsequently and on August 16, 1929, upon the written application and showing of the appellant, he was, by a court order, granted thirty days from August 17, 1929, within which to perfect and file in the case in the proper court his record on appeal. On September 11, 1929, likewise upon appellant's written application and affidavits, another extension of time to perfect and file the record in the case was granted, allowing him thirty days from September 16, 1929. The record on appeal herein was, on October 7, 1929, filed in the office of the Clerk of the District Court of Natrona County, and on October 12, following, it was lodged in this court.

The first ground of the motion to dismiss, is that the appeal in this case was not perfected as required by Section 4328, Compiled Statutes of Wyoming 1920, it being insisted that the order attacked could only be reviewed by proceedings in error as modified by Section 4328, supra. But counsel has overlooked the language of this court in State v. Scott, 34 Wyo. 163, 242 P. 322, 325, where it was remarked:

"It has already been held by this court, and we think correctly, that, since writs of error have been unknown in our practice for many years, having been expressly abolished by statute, and other provision made for transferring the cause and a record of the proceedings therein to the appellate court for review on error, the words 'writ of error' where and as used in the direct appeal statute, particularly in the first section thereof (6401, C. S. 1920), must be understood as intended to refer to a proceeding in error. Bock v. Nefsy, 29 Wyo. 33, 207 P. 1008. And that such was the intention of the legislature when enacting the so-called direct appeal statute was made clear by the last section of the act, above quoted, (Sec. 6415), which declares that the provisions of the act are intended to provide for a direct appeal from the District Courts as a separate and independent method, 'in addition to the provisions of law' then existing for reviewing civil and criminal causes 'in the Supreme Court on proceedings in error.' * * *

"The direct appeal statute declares a definition of 'writ of error,' wherever used in any law of the state in the sense of 'proceeding in error,' as including 'appeal.'"

Again in the later case of Standard Oil Co. v. Buchanan, 39 Wyo. 372, 271 P. 876, 877, where the question of the necessity for a motion for a new trial in a workmen's compensation case brought up by proceedings in error was considered, it was said:

"If we should hold that no motion for a new trial is ever necessary, in workmen's compensation cases, when the proceeding in this court is by petition in error, we should also be forced to hold that no notice of appeal would be necessary in direct appeals. And we are not prepared to so hold. There is nothing in the statute indicating that such was the intention of the legislature, and it would seem to be clear that in view of the provisions of Section 4328, supra, we are forced to hold that, except as otherwise provided by statute, the rules of procedure on appeal governing in ordinary civil cases should be applied in cases under the Workmen's Compensation Act. To hold otherwise would seem to lead to judicial legislation."

This language could hardly have been used if the direct appeal statute were not regarded available as a method of review in this class of cases. In our judgment it is available and its provisions relative to procedure may be followed, except where they have been altered by statute. The State Treasurer having been vested with the right of appeal from an order refusing to reopen the case under the Workmen's Compensation Act (Laws of 1927, c. 111, Sec. 14), and such an order, being one where the manner of its review has been fully provided for by law, the cited case of Midwest Hotel Company v. State Board of Equalization, ...