Whitehouse Energy Savers, Inc. v. Hanlon, 82-422

• Decision Date: 10 June 1983
• Docket Number: No. 82-422,82-422
• Citation: 334 N.W.2d 802,214 Neb. 572
• Parties: WHITEHOUSE ENERGY SAVERS, INC., Appellee, v. John HANLON, Commissioner of Labor, Appellant.
• Court: Nebraska Supreme Court

Page 802

334 N.W.2d 802

214 Neb. 572

WHITEHOUSE ENERGY SAVERS, INC., Appellee, v. John HANLON, Commissioner of Labor, Appellant.

No. 82-422.

Supreme Court of Nebraska.

June 10, 1983.

Syllabus by the Court

1. Appeal and Error: Jurisdiction. Parties to litigation cannot confer subject matter jurisdiction on a judicial tribunal by either acquiescence or consent.

2. Employment Security Law: Jurisdiction: Appeal and Error. Judicial review of the allowance or disallowance of claims under the Employment Security Law, Neb.Rev.Stat. §§ 48-601 et seq. (Reissue 1978), shall be taken to the District Court of the county in which the claimant was last employed or in which the claimant resides, or to any District Court of the state upon which the parties may agree, but the rate of contribution or the liability for contribution of an employer under the act shall be judicially reviewed by the District Court of Lancaster County only.

3. Appeal and Error: Jurisdiction. The right of appeal is statutory and the requirements of the statute are mandatory and must be complied with before the appellate court acquires jurisdiction of the subject matter of the action.

4. Appeal and Error: Jurisdiction. It is fundamental that want of jurisdiction of the subject matter of the action is a defect which requires the court to proceed by dismissal of the case or other suitable action.

Pamela A. Mattson, Lincoln, for appellant.

No appearance for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

HASTINGS, Justice.

This action arose as a result of a determination by the chief of contributions of the Nebraska Department of Labor, Division of Employment, that the plaintiff, Whitehouse Energy Savers, Inc., as an employer, was liable for contributions to the Unemployment Compensation Fund on account of wages it had paid to the installers of siding which had been sold by the plaintiff to homeowners. That decision was appealed to the Nebraska Appeal Tribunal, which, following a hearing, upheld the administrative decision.

The plaintiff then filed a petition in the District Court of Douglas County, seeking a reversal of the decision of the appeal tribunal. The District Court did in fact enter an order reversing that decision and remanding the cause for further proceedings. The Commissioner of Labor has appealed to this court, but the plaintiff has failed to file a brief or otherwise appear.

At the outset we are faced with a question as to jurisdiction. Although raised by neither party, we feel compelled to consider the issue because the parties cannot confer subject matter jurisdiction on a judicial tribunal by either acquiescence or consent. Bd. of Ed. of Keya Paha County v. State Board of Education, 212 Neb. 448, 323 N.W.2d 89 (1982). Stated somewhat differently, the mere fact that the parties appeared in the District Court of Douglas County and tried the cause without raising the question of jurisdiction is immaterial, since consent of the parties cannot confer upon a court jurisdiction of the subject matter and the judgment of the " 'district court from which this error proceeding had been prosecuted is coram non judice.' " Schmidt v. Henderson, 148 Neb. 343, 356, 27 N.W.2d 396, 403 (1947).

The Employment Security Law is found in Neb.Rev.Stat. §§ 48-601 et seq. (Reissue 1978). In that act appeals are provided for in two different areas. Beginning at § 48-623, provisions are made for the payment to employees of unemployment benefits in varying amounts under different circumstances. Section 48-630 states that "A determination upon a claim filed ... shall be made promptly by a representative designated by the commissioner, hereinafter referred to as a deputy ...." Section 48-632 provides that "Notice of a determination upon a claim shall be promptly given to the claimant ... [and] in the same manner to any employer ...." In order "(1) To hear and decide disputed claims, the commissioner shall appoint one or more impartial appeal tribunals ...." § 48-633. Finally, "Within ten days after a decision of an appeal tribunal has become final, the commissioner, or any party to the proceedings before the appeal tribunal, may obtain judicial review thereof by filing (1) in the district court of the county in which the individual claiming benefits claims to have been last employed or in which such claimant resides or (2) in any district court of this state upon which the parties may agree, a petition for review of such decision." § 48-638.

It should be pointed out that although the filing of a claim by one who asserted that he was an employee of the plaintiff prompted the action taken by the commissioner in this case, i.e., an investigation and determination as to whether the plaintiff was subject to the Nebraska Employment Security Law, it was not a proceeding to determine benefits for a specific employee, nor was any claim allowed or denied.

Beginning at § 48-648, provision is made for the payment of contributions by an employer. At § 48-650 it is provided that "The commissioner shall promptly notify each employer of his rate of contributions .... Such determination shall become conclusive ... unless ... the employer files an application for review ... but no employer shall have standing, in any proceeding involving his rate of contributions or contribution liability, to contest the chargeability to his account ... except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute...