Smith v. State Indus. Court

• Decision Date: 16 November 1965
• Docket Number: No. 40839,40839
• Citation: 408 P.2d 317
• Parties: John J. SMITH, Petitioner, v. The STATE INDUSTRIAL COURT, Respondent, and Cities Service Oil Company, Respondent and Cross-Petitioner.
• Court: Oklahoma Supreme Court

Page 317

408 P.2d 317

1965 OK 179

John J. SMITH, Petitioner, v. The STATE INDUSTRIAL COURT, Respondent, and Cities Service Oil Company, Respondent and Cross-Petitioner.

No. 40839.

Supreme Court of Oklahoma.

Nov. 16, 1965.

Syllabus by the Court

1. Due process inexorably requires that adversary parties be given proper notice and an opportunity to be heard before any of their substantial rights are altered or affected.

2. The filling of a proceeding in the Supreme Court to review a decision of the State Industrial Court divests the latter tribunal of jurisdiction of the particular matters or issues which stand submitted for review.

3. Where petitioner or cross-petitioner fails to timely file in this Court a transcript of the record and proceedings before the State Industrial Court as provided by 85 O.S.Supp.1963, Sec. 29, this Court will presume that the findings of fact made by the trial tribunal rest on competent evidence so as to be binding in review.

4. A proceeding or a cross-action for review of a decision by the State Industrial Court will be considered abandoned and subject to dismissal for want of prosecution, where the petitioner or cross-petitioner fails to supply a transcript of the proceedings to be reviewed within the maximum period prescribed by 85 O.S.Supp.1963, Sec. 29, and the errors assigned require an examination of the evidence adduced below.

Action by claimant and 'alternative cross-action' by employer to review an award of the State Industrial Court en banc which was subsequently vacated by three judges without affording claimant an opportunity to be heard in the defense of his rights in the award. Proceedings dismissed as abandoned for failure to timely supply a record of proceedings necessary to be examined on review of errors assigned. Dismissed.

Claud Briggs, Oklahoma City, for petitioner.

J. E. Jarvis, Bartlesville, Charles R. Nesbitt, Atty. Gen., for respondents.

Garrison, Preston & Preston, Bartlesville, for respondent and cross-petitioner, Cities Service Oil Co.

BERRY, Justice.

This cause is before the Court for consideration of employer's petition for rehearing. The petition is directed to our unpublished Memorandum Decision of April 14, 1964. The challenged decision denied employer's motion to dismiss this proceeding and effected a dismissal of employer's 'alternative cross-petition' for review. The dismissal rested on our finding that employer had failed to timely file below the appeal bond required by 85 O.S.Supp.1963, § 29. The principal question for our determination on rehearing is whether the State Industrial Court sitting en banc may, consistent with the requirements of due process, vacate or substantially alter its prior decision within the 20 days prescribed for the commencement of an action for review in this Court, without notice to the party adversely affected thereby and without affording such party an opportunity to be heard.

In this proceeding, instituted here January 6, 1964, claimant sought review of an award made by the State Industrial Court en banc on December 17, 1963. A copy of this award was mailed to the interested parties on December 20, 1963. On December 30 of that year employer filed below an instrument designated as 'petition for rehearing.' In it employer sought the vacation of the award made on December 17. On January 6, 1964, the day claimant brought this proceeding here for review, there was filed below an 'Order to Vacate' which was signed by three judges of the State Industrial Court. The order last mentioned recites, inter alia, that '(O)n January 6, 1964, the undersigned judges sitting en banc gave consideration to respondent's (employer's) petition for rehearing (of Dec. 30, 1963)' and on granting same, 'the Order of December 17, 1963 * * * (was) vacated, set aside and held for naught.'

Employer moved to dismiss claimant's petition for review, asserting that the vacation of the award made by Order of January 6, 1964, operated in its legal effect to leave the claim pending before the trial tribunal for final disposition. Employer invoked the rule stated in Dixon Brothers Lumber & Supply et al. v. Watson, Okl., 281 P.2d 182, and Vieth v. Cook, Okl., 306 P.2d 1110, 1111. In the cited cases the court held that a trial tribunal's decision which vacates a former order or award without effecting a final determination of the claim is merely interlocutory and hence not reviewable in this Court. Claimant countered that the 'Order to Vacate' (of January 6) cannot operate to defeat this Court's jurisdiction of the present proceeding because such order is void since it was made (1) without advance notice to claimant and without affording him an opportunity to be heard in opposition to the petition for rehearing and (2) several hours after the trial tribunal's secretary had been served with notice that claimant's petition for review of the award of December 17, 1963, was pending in the Supreme Court.

On January 9, 1964, employer instituted in this cause what is denominated as an 'alternative' cross-petition for review of the award (of December 17). Employer desires to pursue its cross-action 'in the event that the motion to dismiss (claimant's action) * * * is not sustained'. The cross-petition for review was challenged by claimant's motion to dismiss for failure to file the statutory supersedeas bond within the time prescribed therefor by 85 O.S.Supp.1963, § 29. As stated earlier in this opinion, our Memorandum Decision effected a dismissal of the cross-action.

After giving due consideration to that part of the petition for rehearing which was directed to the dismissal of the alternative cross-action, the court discovered that the instruments on file left it in doubt as to the correct date the statutory bond was filed below. According to the certificate executed by a deputy secretary of the trial tribunal the bond in question was on file January 9, 1964, whereas as disclosed by the secretary's affidavit, the bond was not received below until January 13, 1964. In view of this discrepancy the court authorized the employer to proceed before the State Industrial Court for correction of the record nunc pro tunc to make it speak the truth. By order of June 18, 1964, the trial tribunal determined January 9, 1964, to be the true date 'on which (employer's) supersedeas bond was filed in this cause.'

The procedure employed for correction of the trial tribunal's record was proper and authorized by the decisions of this Court. See Forrester v. Marland, 142 Okl. 193, 286 P. 302, 303; Asplund Const. Co. et al. v. Williams, 150 Okl. 10, 300 P. 755, 756; McQuiston et al. v. Tyler et al., 186 Okl. 315, 97 P.2d 552; and City of Shawnee et al. v. Kinnamon et al., 207 Okl. 299, 249 P.2d 417. In the two cases last cited this Court held that the trial tribunal may, by a nunc pro tunc entry, effect correction of its own records to make them speak the truth and the correction may be made after the expiration of the 20-day period prescribed by 85 O.S.Supp.1963, § 29 for the commencement of an action in the Supreme Court.

Claimant does not challenge the trial tribunal's finding of the date employer's supersedeas bond was posted below. In his response of July 6, 1964, he 'suggests that under the finding so made by the State Industrial Court by its order of June 18, 1964, this Court would be justified in modifying its Memorandum Decision by Order by holding that the alternative * * * (cross-action) was filed on January 9, 1964, instead of January 13 of that year' and was within the time fixed by law.

A cross-action to review a decision of the State Industrial Court must be filed within the same time and in the like manner as an original proceeding for review. Wilcox Oil & Gas Co. v. McFee, 198 Okl. 37, 174 P.2d 918; Tulsa Hotel v. Sparks, 197 Okl. 644, 174 P.2d 920; Trailmobile Co. v. Ray, 199 Okl. 9, 180 P.2d 1005. The filing of a bond with the trial tribunal's secretary, his approval thereof and issuance of a certificate showing such facts are jurisdictional requirements and must be performed within the 20-day period prescribed by 85 O.S.Supp.1963, § 29. Dritch v. Ray et al., 194 Okl. 235, 149 P.2d 260.

The supersedeas bond filed on January 9, 1964, was posted below within 20 days from December 20, 1963, the date a copy of the December 17 award sought to be reviewed as mailed to the parties. Employer's alternative cross-action is not subject to dismissal for want of timely commencement.

Our conclusion concerning the timeliness of the employer's cross-petition leaves for further determination the alleged prematurity of claimant's own action for review. The answer to that question depends on whether the 'Order to Vacate' of January 6, 1964, must be accorded effect as a valid ruling of the trial tribunal en banc.

Due process of law inexorably requires that the adversary parties before the State Industrial Court be given proper notice and an opportunity to be heard before any of their substantial rights are altered or affected. Amerada Petroleum Corp. v. Hester, 188 Okl. 394, 109 P.2d 820; C. K. Howard & Co. et al. v. McKay et al., 188 Okl. 623, 112 P.2d...