Peabody Coal Co. v. Lambermont

• Decision Date: 23 November 1942
• Docket Number: 27801.
• Citation: 44 N.E.2d 827,220 Ind. 525
• Parties: PEABODY COAL CO. v. LAMBERMONT et al.
• Court: Indiana Supreme Court

44 N.E.2d 827

220 Ind. 525

PEABODY COAL CO. v. LAMBERMONT et al.

No. 27801.

Supreme Court of Indiana

November 23, 1942

Will H. Hays, Hinkle C. Hays, Alonzo C. Owens, John S. Taylor, J. Olias Vanier, John T. Hays, and Will H. Hays Jr., all of Sullivan, for appellant.

George N. Beamer, Atty. Cen., Fred R. Bechdolt and Charles W. Grubb Deputy Attys. Gen., for appellee Review Board.

McDonald & McDonald, of Princeton, for claimant.

SHAKE Judge.

This case comes to us by way of petition to transfer from the Appellate Court of Indiana. Since the opinion of the Appellate Court contains a succinct r esumé of the facts and a clear statement of the reasons that prompted the decision we quote it in full:

'This is a proceeding in which appellees filed claims for unemployment compensation benefits. The employer, appellant herein, objected and the matter was referred to a referee and finally to the Review Board of the State Unemployment Compensation Board. On February 13, 1942, that board made and published its decision in favor of appellees. No steps were taken to appeal the decision and no appeal was taken. On April 8, 1942, appellant petitioned the board to review its decision of February 13, 1942, and on April 15, 1942, the board denied the petition to review. From that decision appellant seeks to appeal.

'The Review Board has filed its motion to dismiss the appeal.

'The statute (§ 52-1508, Burns' 1941 Supplement * * *) provides that any decision of the Review Board shall be final unless an appeal be taken as therein provided. There is no provision for filing a petition for review. An appeal from the decision of the board denying such a petition is in effect an appeal from the original decision and is not authorized when the time for appeal of the original decision has expired.

'Appeal dismissed.' 42 N.E.2d 1023.

Under the procedure recognized in Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, 26 N.E.2d 399, the appellant's petition to transfer will be considered as an application for a common-law writ of error.

The sole question before us is whether the Appellate Court was warranted in dismissing the case or ought to have decided it on the merits. This is primarily a matter of jurisdiction, depending upon whether the order entered by the Review Board of the State Unemployment Compensation Board on April 15, 1942, was subject to review in the Appellate Court.

By § 8 of the Employment Security Act of 1941, § 52-1508, Burns' 1933 (Supp.), a decision of the Review Board becomes final 15 days after it is mailed to the interested parties unless an aggrieved party gives notice of an appeal to the Appellate Court within such 15 day period and perfects his appeal within 30 days thereafter. The original order awarding unemployment compensation benefits to the appellees was entered and notices mailed on February 13, 1942. There was no attempt to appeal from that order.

Clause (f) of said § 8 is as follows:

'Jurisdiction over benefits shall be continuous. Upon its own initiative, or upon application of any party in interest, upon good cause shown, the review board may, at any time within one (1) year after the decision of the interviewer review an award of benefits or the denial of a claim therefor, in accordance with the procedure prescribed in respect to claims, and in accordance with such review, issue a new decision which may award, terminate, continue, increase or decrease such benefits. Such new order shall not affect and benefits paid before the date thereof under authority of the prior order and shall be subject to review as provided in this section.' (Our italics.)

The opinion of the Appellate Court is, therefore, in error when it states that, 'There is no provision for filing a petition for review' of an original decision of the Board of Review. It affirmatively appears from the opinion that 'On April 8, 1942, appellant petitioned...