Opinion
No. 28135
Decided July 22, 1942.
Workmen's compensation — Appeal to Common Pleas Court without transcript on rehearing — Section 1465-90, General Code — Jury waived, issue submitted to court and judgment entered — Appeal not prosecuted and motion to vacate judgment overruled — Judgment for claimant not subject to attack in mandamus proceeding.
IN MANDAMUS.
Relator filed in this court a petition for a writ of mandamus to compel the Industrial Commission to pay a judgment recovered by him on January 9, 1939, in the Court of Common Pleas of Belmont county for $10 per week, commencing June 14, 1926, and continuing for 220 weeks, costs and an attorney fee of $370. The petition alleged that no appeal was prosecuted from that judgment.
The answer alleged that relator, on July 29, 1925, filed an application for workmen's compensation for injuries received by him on July 2, 1925, his claim was allowed and the last award was made to him on June 14, 1926; that on November 10, 1937, he filed his petition in the Common Pleas Court on appeal from the Industrial Commission, the case was settled by agreement of counsel for $2,200 and attorney fees, an entry of dismissal was journalized on March 26, 1938, and the Industrial Commission disaffirmed and refused to carry out the settlement; that a petition in mandamus was filed by relator in the Court of Appeals of Franklin county against the commission, the then Attorney General answered confessing judgment, a writ of mandamus and a citation in contempt were issued but later vacated, an amended answer was filed by the present Attorney General and the mandamus petition was dismissed in February of 1939, on oral motion by the relator; that on January 9, 1939, at eleven a. m., prior to the filing of the amended answer aforementioned, two journal entries were filed in the Court of Common Pleas of Belmont county, the first set aside the entry of dismissal of March 26, 1938, reinstated the case, waived a jury and submitted the issue to court, and the second entered judgment for the plaintiff for $10 per week from June 14, 1926, for 220 weeks, with costs including attorney fees of $370; and that those two entries were signed by attorney for plaintiff and the Attorney General whose term expired on or about noon January 9, 1939. The foregoing facts are established by the evidence before this court.
The answer in the present mandamus proceeding alleges also that actual notice of filing the two entries was not given to either the Industrial Commission or the present Attorney General and copies were not left in the files of either until after the last date for filing an appeal; and that a motion was filed in the Court of Common Pleas to vacate the journal entries and was overruled.
The commission by its answer in this court challenges the jurisdiction of the Court of Common Pleas upon the grounds that no rehearing had been held from which a transcript was made as required by Section 1465-90, General Code (111 Ohio Laws, 227), and more than ten years had elapsed subsequent to the last payment of compensation.
The reply of relator denied generally.
A supplemental answer, not denied by reply, pleaded that relator had instituted execution proceedings in the Court of Common Pleas of Franklin county.
The instant mandamus proceeding was submitted upon the pleadings, depositions, stipulation and the record of the Industrial Commission upon the claim of relator for workmen's compensation.
The latter record contains a recommendation by the present Attorney General and an order of the commission to settle the outstanding judgment for $1000 including attorney fees, which settlement was rejected by relator.
Mr. John J. Malik and Mr. Henry W. Wolf, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for respondents.
The Court of Common Pleas of Belmont county had jurisdiction of the parties and the subject-matter. Appeal was not prosecuted from the judgment and it may not be collaterally attacked in the present mandamus proceeding. Gavalek v. Industrial Commission, 100 Ohio St. 399, 126 N.E. 317; 23 Ohio Jurisprudence, 1146, Section 1003.
Counsel for respondents contend they are not attempting to collaterally attack the judgment of a court of competent jurisdiction in a matter over which it had jurisdiction, but are directly attacking an entry purporting to be a judgment entered by a court which had no possible claim or basis for claim of jurisdiction to make such entry. However, no authority is cited by counsel for respondents to support their position of direct attack.
Writ allowed.
WEYGANDT, C.J., WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
TURNER, J., dissents.
BETTMAN, J., not participating.