Nierman v. Indus. Comm'n

• Decision Date: 21 April 1928
• Docket Number: No. 18385.,18385.
• Citation: 161 N.E. 115,329 Ill. 623
• Parties: NIERMAN et al. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

329 Ill. 623

161 N.E. 115

NIERMAN et al.

v.INDUSTRIAL COMMISSION et al.

No. 18385.

Supreme Court of Illinois.

April 21, 1928.

Error to Circuit Court, Cook County; Harry M. Fisher, Judge.

Proceeding under Workmen's Compensation Act by Omah Cobb, claimant, for the death of William C. Cobb, her husband, opposed by S. J. James, employer, and Henry Nierman and another, owners of the building on which the deceased was working. To review a decision of the Industrial Commission sustaining an arbitrator's award, the owners of the building brought certiorari in the circuit court, which confirmed the Industrial Commission's decision. Judgment was rendered for the claimant against the employer and the building owners, and the building owners bring error.

Judgment reversed.Slottow & Leviton, of Chicago (Charles Leviton and Wendell Carnahan, both of Chicago, of counsel), for plaintiffs in error.

George W. Lawrence, of Chicago, for defendant in error.

DE YOUNG, J.

On November 17, 1925, William C. Cobb suffered injuries while employed by S. J. James on a building belonging to Henry Nierman and Charles Hirtenstein. Death resulted from the injuries. Omah Cobb, the widow, filed a claim for compensation with the Industrial Commission. On March 24, 1926, an arbitrator awarded her $14 per week for 267 6/7 weeks, or a total of $3,750, of which, it was provided, $2,660 had already accrued, and the balance should be paid in weekly installments. The Industrial Commission, on review, sustained the arbitrator's award. Nierman and Hirtenstein filed in the office of the clerk of the circuit court of Cook county a bond conditioned upon the successful prosecution of a writ of certiorari or the payment of the award and costs, and the writ was issued. The circuit court on October 18, 1926, confirmed the decision of the Industrial Commission. Subsequently, on March 9, 1927, there was filed in the office of the clerk of the circuit court an affidavit or petition by Omah Cobb, in which, among other things, she set forth that the award remained unpaid and that she desired to have judgment rendered upon it. To this petition were attached (1) copies of the arbitrator's decision, of notice thereof and of the Industrial Commission's decision on review; (2) a notice filed in the commission's office on February 28, 1927, that counsel for Omah Cobb would on March 14, 1927, appear before Hon. Harry M. Fisher, one of the judges of the circuit court, and ask that judgment be rendered against James, Nierman, and Hirtenstein upon the arbitrator's award, theretofore sustained by the Industrial Commission and confirmed by the circuit court, and that attorney's fees and costs be included in such judgment; and (3) a certificate by the secretary of the Industrial Commission that on February 28, 1927, he sent by registered mail a copy of the foregoing notice to counsel for the respondents. On March 21, 1927, the circuit court, after reciting that it had inspected the certified copy of the Industrial Commission's decision and ‘its own record which affirmed’ that decision, rendered judgment in favor of Omah Cobb and against James, Nierman, and Hirtenstein for $4,063, of which sum $313 was included as attorney's fees and costs. Upon petition by Nierman and Hirtenstein this court awarded a writ of error, and the record is here for review.

The substance of the contentions of plaintiffs in error for a reversal of the judgment is that after the bond, which is a prerequisite to the issuance of a writ of certiorari, had been filed, and the circuit court, on a direct review by that writ, had confirmed the decision of the Industrial Commission, the court had neither power nor jurisdiction to render, in a subsequent proceeding upon an award made payable in weekly installments, a judgment, instantly payable, for the whole award, with attorney's fees and costs.

Paragraph 2 of subsection (f) of section 19 of the Workmen's Compensation Act (Cahill's Stat. 1925, p. 1189; Smith's Stat. 1925, p. 1287), provides that no writ of certiorari shall issue unless the one against whom the IndustrialCommission shall have rendered an award for the payment of money shall, upon the filing of his praecipe for such writ, file with the clerk of the circuit court a bond conditioned that if he shall not successfully prosecute the writ he will pay the award and the costs of the proceedings; that the amount of the bond shall be fixed by a member of the Industrial Commission; and that the surety or sureties on the bond shall be approved by the clerk of the court. The bond which the employer is required to give before he is permitted to prosecute a writ of certiorari from the circuit court to review an award makes unnecessary the rendition by the circuit court of a judgment for the payment of money in case the decision of the Industrial Commission is confirmed. Otis Elevator Co. v. Industrial Com., 288 Ill. 396, 123 N. E. 600. If every award of compensation confirmed by the circuit court upon review necessarily resulted in a judgment subjecting the employer's property to a lien for the payment of the award, the number of such liens would not only be considerable, but the liens might continue for many years, and the employer's property, particularly his real estate, would be rendered unmarketable. The employer has the right, by giving the required bond, to avoid such a judgment, and consequent lien. Baum v. Industrial Com., 288 Ill. 516, 123 N. E. 625, 6 A. L. R. 1242; Otis Elevator Co. v. Industrial Com., supra. The legislative intention is that the employee shall be protected by the bond. Otis Elevator Co....