McIntosh v. Standard Oil Company

• Decision Date: 17 April 1931
• Docket Number: 27760
• Citation: 236 N.W. 152,121 Neb. 92
• Parties: ARZA MCINTOSH, APPELLANT, v. STANDARD OIL COMPANY, APPELLEE
• Court: Nebraska Supreme Court

236 N.W. 152

121 Neb. 92

ARZA MCINTOSH, APPELLANT, v. STANDARD OIL COMPANY, APPELLEE

No. 27760

Supreme Court of Nebraska

April 17, 1931

APPEAL from the district court for Hitchcock county: CHARLES E ELDRED, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

" Under the statute providing for the appointment of a Supreme Court Commission, the decisions of such Commission ‘ shall establish no precedent and be authority only in the particular case.' " Burkamp v. Roberts Sanitary Dairy, 117 Neb. 60, 219 N.W. 805.

" The Workmen's Compensation Act ‘ is one of general interest, not only to the workman and his employer, but as well to the state, and it should be so construed that technical refinements of interpretation will not be permitted to defeat it.' " Speas v. Boone County, 119 Neb. 58, 227 N.W. 87.

Where a statute, which creates a right or confers the means of acquiring it, prescribes an adequate special mode of determining by a judicial investigation " in cases of dispute" between the parties in interest, the remedies and procedure prescribed are exclusive, and particularly so when so denominated by the terms of such enactment.

By the express provisions of our Civil Code, when by a general or special statute a civil action, legal or equitable, is given and the mode of proceeding therein is prescribed, until the legislature shall otherwise provide, this Code shall not affect proceedings under such statutes; and also the clerk of each of the courts shall exercise the powers and perform the duties conferred and imposed upon him, not only by the provisions of the Civil Code, but by other statutes, and by the common law.

The terms of the Workmen's Compensation Act impose on clerks of the district courts the duty of immediate issuance of summons upon the filing in their office of a proper petition on appeal, as prescribed by that act, and contain no requirement that a præ cipe shall first be filed therefor.

To constitute the issuance of summons, the process must be made out, properly attested, and delivered to the proper officer to be executed and served as by law provided.

It appearing without dispute in the record in the instant case that appellant in due time filed proper notice of appeal with the compensation commissioner, and also filed his petition on appeal in the office of the clerk of the district court when and in the manner prescribed by statute, the failure or delay of the court officers to carry out their respective duties, without contributing fault on the part of appellant, does not deprive him of his right of review in this tribunal.

Additional Syllabus by Editorial Staff.

" Civil causes," within statute providing for issuance of summons on appeal in compensation cases, does not necessarily imply civil causes in district court (Comp. St. 1929, § 48-139).

Appeal from District Court, Hitchcock County; Eldred, Judge.

Proceeding under the Workmen's Compensation Act by Arza McIntosh, opposed by the Standard Oil Company. The compensation commissioner dismissed the claim, and the petitioner appealed to the district court. From a decision of the district court sustaining defendant's challenge to its jurisdiction, claimant appeals.

Judgment of district court reversed, and cause remanded.

H. L. Lehman and Butler & James, for appellant.

William H. Herdman, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

EBERLY, J.

This is an appeal from a decision of the district court for Hitchcock county in a workmen's compensation case, sustaining a challenge of the defendant Standard Oil Company to the jurisdiction of that court "over its person and over the subject-matter of this appeal."

The following are the facts. On May 10, 1930, the compensation commissioner entered an order, after hearing and appearance of parties, dismissing plaintiff's claim for compensation. On May 17, 1930, the plaintiff filed his notice of appeal therefrom. Five days later he also filed his petition on appeal in the district court for Hitchcock county. He filed no praecipe, however. On August 18, 1930, summons was issued by the clerk of the district court, which two days later was served on the defendant. On August 29, following, defendant filed its special appearance challenging the jurisdiction of the court on the ground that the appeal was not perfected within the time fixed by law, for that no summons was issued on the petition filed in the district court within the time required by law. In its brief the defendant elaborates the basis of its contention, including therein the failure of plaintiff to "file a praecipe for, or cause issuance of, summons out of the district court in which petition is filed, within fourteen days from the date of the order" appealed from, and that "no summons was issued out of the district court until one hundred days from the date of order." The defendant states the precise question involved herein is: "When is an appeal from the order of the compensation commissioner perfected?" The following quoted from its brief fairly, clearly and succinctly represents its position.

"The filing of the petition on appeal in the district court was no mandate, under statute or otherwise, to the clerk of the district court to issue a summons. Likewise the clerk of the district court is without right or authority to issue a summons sua sponte. This is so because of section 9503, Comp. St. 1922. * * * The language of the statute is plain. Not only is the clerk without right or power to issue process of any kind upon his own motion, but such issuance is prohibited, unless 'a praecipe shall be filed with the clerk demanding the same.' So that, in this case, in perfecting his appeal, plaintiff was required to file with the district clerk a praecipe demanding the issuance of a summons on the petition. There is no pretense in this case that any such praecipe was filed. Indeed, there is no pretense that even an oral demand was made on the clerk to issue a summons. Hence, the failure to issue a summons 'upon the filing of the petition' was the fault of plaintiff, and not of the district clerk. Had plaintiff filed such praecipe, or possibly made oral demand on the clerk for the issuance of same, and the clerk failed to issue the summons, plaintiff having done in due time all that was legally required of him to perfect his appeal, the court, within the doctrine announced in Drexel v. Reed, 69 Neb. 468, 95 N.W. 873, and Drexel v. Rochester Loan & Banking Co., 65 Neb. 231, 91 N.W. 254, and other cases, would have sustained the appeal, because the fault and omission was that of the clerk of the court, and not of the plaintiff. But that is not the case. Here the plaintiff was at fault in that he failed to do and perform that which the statute required of him in order to perfect his appeal."

The plaintiff, in reply to this contention, insists that he had in this proceeding, in due time, done all that was legally required of him to perfect the appeal, and that therefore his case falls within the scope of the decisions referred to in the above quoted portion of defendant's brief. It may further be said that plaintiff insists that the principle announced in the case of Keil v. Farmers' Irrigation District, 119 Neb. 503, 229 N.W. 898, is controlling. In view of the facts involved, we are inclined to accept the view, for the purpose of this case at least, that the proper application of the principles announced in the Keil case to the present contention would not extend its doctrine beyond the scope of the admission contained in the defendant's brief above quoted.

As to the case of Lincoln Drug Co. v. Davidson, No. 24-836, on which the defendant relies, it may be said that this court can give no consideration whatever to the latter in the instant case. It is a commission opinion. "Under the statute providing for the appointment of a supreme court commission, the decisions of such commission 'shall establish no precedent and be authority only in the particular case.'" Burkamp v. Roberts Sanitary Dairy, 117 Neb. 60, 219 N.W. 805.

A careful consideration of the provisions of the statutes referred to by the defendant, we feel, when properly construed, does not sustain its contention. The following are the provisions of statutes which defendant insists are pertinent and control the issues herein: Section 48-137 Comp. St. 1929, provides: "All disputed claims for compensation or for benefits under this article must be submitted to the compensation commissioner for an award. If either party at interest is dissatisfied with the award of the compensation commissioner, then the matter may be submitted to the district court of the county in which the accident occurred: * * * Provided, however, if either party appeals from the award of the compensation commissioner notice of the appeal shall be given to the commissioner and the petition on appeal filed in the district court within fourteen days from the date of the award ." It will be noted, however, that, if this section be taken as defining the right of appeal, but two things are made essential to the jurisdiction of the district court attaching thereto: First, the notice of appeal filed with the compensation commissioner; and, second, the filing of the petition on appeal in the district court within 14 days from the date of the award. Flansburg, J., in discussing this provision in Mucha v. Morris & Co., 105 Neb. 180, 179 N.W. 500, makes use of the following language: "The provision for the filing of notice with the compensation commissioner was for the purpose of giving the adverse party knowledge of the appeal." The defendant also cites section 48-139, Comp. St. 1929, and quotes therefrom. In this respect we will extend the...