*1
MADSEN,
Appellant
CONTRACTORS,
PREFERRED PAINTING
Respondent,
Co.,
Iowa Mutual
Ins.
Insurer and Respondent
(
Acie W. Willy, Matthews & Jorgensen, Falls, Sioux for respondents.
WOLLMAN, Justice. circuit an an order of the court
This is from a decision attempted dismissing appellant employee’s commissioner labor and relations deputy management claim benefits. for workmen’s denying employee’s compensation We affirm. February
In entered deputy the commissioner fact and law findings of conclusions of and an award favor of in his claim for workmen’s benefits compensation out an arising injury that he had suffered on October allegedly 18, 1967. This decision the insurer and appealed employer court, to the circuit which set aside the award and remanded the case to the commissioner for further the Following proceedings. remand, a was held the rehearing deputy before commissioner on 1972. On August October commissioner deputy entered findings fact and of law conclusions denying 4, 1972, claim employee’s for benefits. Also on October commissioner filed affidavits on that date stating he had served the fact, above described conclusions of findings award, law and denial of together notice of counsel for counsel for insurer Pierre, depositing copies said the United States mail at South Dakota, class, in an with first envelope certified postage prepaid, addressed to counsel at their ad- respective mailing dresses. An affidavit sworn deputy commissioner on 3, 1973, January states that the return receipts indicate that these papers were received parties (actually, their respective attorneys) on or about October
On October employee’s counsel called the commissioner and asked for an extension of time in which to file a petition for review of the deputy commissioner’s decision. By letter addressed to employee’s counsel dated the deputy commissioner stated that:
“This letter is to inform you that are you hereby granted a 10 day extension to file a petition to SDCL pursuant 62-7-16. This means an additional 10 days allowed be- yond normal 10 allowed by 62-17-16.” On October counsel served mail a employee’s *3 for review of the petition commissioner’s decision of 4, 1972. On October employer counsel for the and insurer filed to review on the objections this for petition alia, filed. On inter the ground, petition denied the petition the commissioner November 1972, be and ordered that the for review of Service in the matter. of the commissioner final decision the mail on certified made was for review petition denial of this for counsel November 1972. On November to review for petition denial of the appeal a notice of served the dismiss moved and insurer Employer circuit court. appeal dismissing and motion this The order granting appeal. appeal. the instant of subject is the that: in part provides
SDCL 62-7-16 commissioner before proceedings “Any party decision a him of upon after service ten within may with file in as provided of the § deci of such a review a petition the commissioner * * * any or such petition denial of Notice of sion. in as provided given shall be thereon other 62-7-13.”1 § manpower department to the transferred Laws
1 Ch. § rela management labor commissioner the functions affairs 62-7. under SDCL tions SDCL 62-7-13 that: provides part “* * * The shall commissioner file his to- his gether findings of fact conclusions of law and shall serve the same on the dis- parties forthwith each his patching copy addressed to or attorney by mail, registered or certified postage prepaid.” SDCL 62-7-30 provides that:
“All may notices or orders this provided chapter be served or or certified mail. personally registered When served or certified proof thereof must be accompanied by post-office Whén, however, return receipt. any party represented attorney, such service must be made on such at- torney, may be made either in the manner provided section, in this inor the manner provided by 15-6-5.” provides “Any 62-7-19 that: may appeal to circuit court from final order or any decision of the industrial commissioner which arises under the provisions * * *” action, this title. allAt times material to this 62-7-24 provided that such an had to be taken within office, twenty after filing the commissioner of of service of written notice of the order or decision from which the sought.2 *4 “* * *
SDCL 15-6-5(b) provides part that Service by mail shall be first mail and by mailing.” class is complete upon mail, SDCL if notice is served 15-6-6(e) provides three shall be added to the prescribed period within which a party has the or is to right required do some act or take some after the service of a notice proceedings him. upon and insurer Employer contend that service of the 4, 1972, commissioner’s decision of deputy complete October was decision, when the commissioner mailed a copy 313, 2, 2. repealed 62-7-20 62-7-29 were Laws of 1973. SDCL Ch. § Appeals manpower department to circuit court from decisions of the of governed affairs are amended now 1-26. See SDCL 1, 13, Laws Ch. Laws of 1973. See also of-1975. Ch. § §§ with the notice of together upon decision and related papers, date; counsel on that the ten employee’s consequently, day period within which file petition could for review of that 17, 1972, decision on ended October and thus even if the deputy commissioner’s ten day period extension of that was purported valid, Therefore, that extension ended October 1972. because employee did not file his review of the petition for 4, 1972, 31, 1972, decision until of October October the petition filed and thus became the final decision from which an to circuit court would have had to be taken within twenty filing office the commissioner of service of written notice of the decision. SDCL 62-7-24.
We with the agree and insurer that service 4, 1972, the decision of October was when the complete commissioner mailed a copy of the together with the notice of decision and accompanying papers, to employee’s counsel on October 1974. unequivocally states 15-6-5(b) that service mail is complete upon The fact mailing. that the deputy commissioner utilized certified mail rather than merely first-class mail does not seem be to material. Although employee contends that the requirement by SDCL imposed 62-7-30 that registered or certified mail be used that service is implies not complete until actually addressee, notice is received by the rule seems to be that where a statute authorizes service of notice service is effective when the notice is properly addressed, registered, mailed. Service v.Co. Climate Johnson Contractors, Inc., Control 643; Tex.Civ.App., 478 S.W.2d Notice, Am.Jur.2d, our
Although that the ten holding within day period which could have petitioned review of the decision of expired on October makes it unnecessary for us to decide whether the deputy commissioner’s valid, purported day ten extension of that period was inasmuch as the extension on October expired prior which was the time that the petition filed, review we note that this passing court has held provision that a limiting time for petition for review in workmen’s compensation proceed- *5 is ings jurisdictional nature. Pemberton v. South Dakota 402 654; Assoc., N.W. Murray S.D. Protective
Employers
Weins, 70
Cf. Weins v.
Stokke,
224,
Because filed, timely commissioner’s and therefore decision became final for purposes that must be correctly appeal- trial held that employee’s court because not filed. dismissed from is affirmed. The appealed DUNN, COLER, concur. JJ., C. and WINANS and J., DOYLE, dissents. J.,
DOYLE, (dissenting). Justice time opinion I do not with majority agree by is SDCL 15-6-5. governed within which to in this case Act, service Compensation Under the of the Workmen’s provisions SDCL 62-7-30 governed by of notices and other instruments is which reads:
“All orders for in this provided chapter notices or or certified may be served personally registered mail, proof or certified mail. When served must be accompanied post-office thereof When, however, any party represented return receipt. on such at- service must be made such attorney, either in manner torney, may provided be-made section, manner 15-6-5.” provided in this or in the parts. two view, being must be construed my In the statute his attorney, or upon claimant Part service upon provides or certified by registered he either if be so represented, such part, proof Under this requested. return receipt postal *6 made the date such mailing, service is showing with the United States mail the actual date of receipt showing statute, of such instrument. Thus under this of the it receipt part readily when the claimant or his apparent representative receives the instrument. Part of the statute is limited to service on a claimant’s either attorney permits service 15-6-5, is, mail registered or certified SDCL that ordinary first-class mail.
The determination as to which method service is to be used, when a claimant is an represented by attorney, is left to the discretion of the commissioner under SDCL 62-7-30. In this case commissioner made service by certified return receipt requested; executed an affidavit of the notice mailing showing Pierre, was mailed Dakota, at 4th, South on October attached thereto the return of the United receipt States mail service of such notice showing receipt by the claimant’s attorney view, October 11th. In my the time of service of such notice on the claimant’s attorney was the date of its actual receipt on 11th, as indicated by the post-office record attached to service, affidavit of and not the date under the computed Rules of Civil Procedure. I am further convinced that being attorney as required by 62-7-12.1, knowingly elected intentionally to make service under part of SDCL 62-7-30 when he used the service, affidavit as attaching the postal receipts required by that portion of the statute, rather than a using service, certificate of which would normally be used under SDCL 15-6-5.
Moreover, as is required the commissioner notices, frequently statute, sends under not parties represented by attorneys. This service must be done under part 1 of SDCL 62-7-30. What method is such claimant to use in the when, computation likelihood, of time in all he is unaware of the provisions me, of SDCL 15-6-5? To dictates that the time logic receipt of registered or certified mail would be the date upon which to commence the of time when service is made in running that manner.
I add might that it seems incredible that it took seven for the United States mail service to transport letter Lennox, In the light South Dakota.
Pierre, Dakota to South that the service, possibility the realm of beyond it is not mail such had expired after the time for be delivered notice could opinion. holding majority under the rule laid down arbitrary with the I cannot agree starts three after time of service majority opinion *7 claimant or his of when the of the notice regardless mailing This is not technicality receives the notice. attorney Act since there is Compensation under the Workmen’s mandatory of the Act. spirit which meets with the an alternative procedure majority opinion, In view taken position has the authority of whether or not the commissioner question can be relegated extend the time within which to appeal another day. THIBODEAU,
STATE, Appellant Respondent 326) N.W.2d (233 25, 1975) (File September Opinion filed No.