Opinion
No. 17,366.
Filed October 9, 1945.
From the Marion Superior Court, Room No. 3; Emsley W. Johnson, Jr., Judge.
Proceeding by Holland Motor Express, Inc., against Everett L. Gardner and others, and Indiana Employment Security Board, also sometimes known as Indiana Employment Security Division, State Unemployment Security Division, and State Employment Security Board of Indiana, for a refund of alleged excess contributions collected under the Employment Security Act. After denial of the claim by the liability referee, the company filed its complaint in the Marion Superior Court for a judicial review of the referee's decision, which resulted in a reversal of such decision and entry of final judgment for the recovery by the company of a given amount. Thereafter, defendants filed a motion for new trial, and, upon such motion being overruled, appealed and assigned as sole error the court's ruling on such motion.
Appeal Dismissed. By the court in banc.
James A. Emmert, Attorney General, Winslow Van Horn, Deputy Attorney General, and Fred R. Bechdolt, Chief Counsel Indiana Employment Security Division, for Appellants.
Harry E. Yockey, Eugene H. Yockey and Kirkwood Yockey, all of Indianapolis, for appellee.
The Indiana Employment Security Division collected contributions from the appellee at the rate of 2.7 per centum of its reportable payroll for the period beginning February 25, 1942, and ending June 30, 1943. Contending that its proper and legal rate of contribution for such period should have been determined at 0.7 per centum of its reportable payroll the appellee filed a claim with the State Employment Security Board for a refund of the alleged excess contributions so paid in the sum of $899.26. This claim was denied by the board and, upon request of the appellee, the matter was referred to a liability referee who, after a proper hearing, found the fact specially, concluded as a matter of law that the contributions paid by the appellee over the period involved were in no part unlawfully collected and entered an order denying recovery. The appellee thereupon filed its complaint in the Marion Superior Court for a judicial review of the liability referee's decision, and in due course such decision was reversed by said court and final judgment entered that the appellee recover a refund in the sum of $899.26, together with interest, such being the agreed excess of 0.7 per centum of its reportable payroll paid by the appellee for the period involved. The appellants' motion for a new trial, challenging the sufficiency of the evidence and the legality of the court's decision, was overruled and this appeal followed upon the single assignment that the court's ruling on said motion is erroneous.
We are confronted in this case with the identical situation presented by the record in Cause No. 17,365, Gardner v. Lohmann Construction Co., Inc., ante, p. 132, 62 N.E.2d 867, which we have this day decided with a written opinion in which our position is fully set out. On the authority of that case this appeal must be dismissed.
HAMILTON, J., not participating.
NOTE. — Reported in 62 N.E.2d 870.