Levy v. Industrial Commission

178 N.E. 370 | Ill. | 1931

The Industrial Commission made an award of $4558 against plaintiff in error (herein called the employer) and in favor of the widow of the deceased employee. To review this award, on the 31st day of July, 1930, the employer filed in the circuit court of Cook county a praecipe for a writ ofcertiorari under the Workmen's Compensation act. That same day the clerk issued a writ of certiorari, returnable on the third Monday of October, 1930, and also issued a writ of scirefacias, returnable to the October term, 1930. These writs were properly served in accordance with the provisions of the Compensation act. On October 3, 1930, the widow, appearing specially, moved to dismiss the cause and to quash the writ ofscire facias. The motion averred that the praecipe filed July 31, 1930, was made returnable to the October term, 1930, and that the scire facias required the widow to appear on the third Monday of October, 1930, and that such return date was not in conformity with the statute, (Cahill's Stat. 1929, chap. 48, par. 219, sub-sec. f1,) the relevant part of which is as follows: "Such suit by writ of certiorari shall be commenced within twenty days of the receipt of notice of the decision of the commission. Such writ of certiorari and writ of scirefacias shall be issued by the clerk of such court uponpraecipe returnable to the next succeeding term of the circuit court providing ten days shall intervene from the date of issuance thereof and the first day of the next succeeding term of court." In the case at bar the first day of the August term of the circuit court was more than ten days after July 31, 1930, the date on which the clerk issued the writs ofcertiorari and scire facias. Accordingly these writs should have been returnable to the August term of court. On October 10, 1930, the employer, by leave of court, filed a cross-motion to amend the praecipe and writs by substituting the words "August term" in place of the words "October term" wherever the words "October term" therein appeared. Hearings were had, and on November 8, 1930, the trial judge orally announced his decision that an amendment could not cure the defect of failing to follow the statute strictly, and he therefore denied the employers motion to amend and allowed the widow's motion to dismiss the cause and quash the writ of scire facias. On December 23, 1930, a written order was entered to the same effect, and the cause is here upon writ of error.

The sole question at issue is whether the statute of Amendments and Jeofails and section 39 of the Practice act gave the circuit court the power to amend the defectivepræcipe and the writs of certiorari and scire facias.

This court has held that a summons returnable to the wrong term is a nullity and will not authorize a judgment. (Calhoun v. Webster, 2 Scam. 221; Hildreth v. Hough, 20 Ill. 331;Culver v. Phelps, 130 id. 217; Keal v. Rhydderck, 317 id. 231.) While circuit courts are courts of general jurisdiction, their powers are limited by the language of the statute when they exercise a special jurisdiction derived solely from the statute. The writ of certiorari, by which the circuit court is given power to review the award of the Industrial Commission in compensation cases, is wholly statutory, and the authority of the court to make any order must be found in the statute. (Moweaqua Coal Mining Co. v.Industrial Com. 322 Ill. 403.) In reviewing decisions of the Industrial Commission the writ of certiorari is not the common law writ but is a statutory writ and the circuit court has only such powers as the statute confers. (Nierman v. Industrial Com.329 Ill. 623.) In compensation cases the circuit court can only look to the provisions of the Workmen's Compensation act to determine whether it has jurisdiction of the persons of the litigants. When a review on a writ of certiorari is sought, jurisdiction over the person is accomplished when the case sought to be reviewed is laid to the proper term. Here the August and September terms intervened between the issuance of the writs and the October term, to which they were made returnable, and ten days intervened between the date the writs were issued and the first day of the August term. The writs were therefore a nullity and failed to confer that jurisdiction of the persons of the litigants which would authorize the court to allow an amendment at the October term.

The judgment of the circuit court in refusing to allow the employer's motion to amend the præcipe and writs ofcertiorari and scire facias is therefore affirmed.

Judgment affirmed.