Jella v. Kansas Soldiers' Compensation Board, 121 Kan. 360

Jella v. Kansas Soldiers' Compensation Board

121 Kan. 360 | Kan. | 1926

The opinion of the court was delivered by

Burch, J.:

Plaintiff, a soldier of the World War, petitioned for a writ of mandamus to compel the compensation board to allow and pay his claim for compensation. An alternative writ was issued, and the board moves to quash the writ.

The board disallowed plaintiff’s claim for the reason he failed to establish the fact he was a resident of the state when be enlisted. Plaintiff appealed to the district court, and after a trial the court adjudged he was a resident of the state when he entered the service, and was entitled to benefit of the compensation law, so far as residence was concerned. The adjudication was limited to the fact of residence, and no order directed to the board was made. The board then wrote plaintiff’s’ attorney as follows:

“You are advised that through an error the official notice of disallowance stated the claim was refused on the ground of residence, while in addition the records indicated he had left the service and was tendered an undesirable discharge.

“As the Kansas compensation law requires that the soldier shall have received a desirable or honorable discharge from the service, the Kansas compensation board is refusing to pay his claim. It is definitely stated in the journal entry that the court passed on the question of residence only.”

This action followed. The petition and the alternative writ based upon it do not charge that plaintiff was honorably discharged, and *361the ground of the motion to quash is that the alternative writ does not state facts sufficient to warrant granting the relief prayed for. Plaintiff contends that, since the board has denied' his claim on a specified ground, and has put him to the expense of a successful appeal to the district court, it may not now assign a different reason for rejecting his claim. Conceding correctness of the contention, plaintiff comes to this court for relief of an extraordinary kind, the granting of which rests in the sound judicial discretion of the court; and plaintiff ought not to prevail without showing he possesses the primary qualification of an applicant for compensation, an honorable discharge. (R. S. 73-102.)

The motion to quash is allowed.