Milwaukee-Western Fuel Co. v. Industrial Commission, 172 Wis. 561

Milwaukee-Western Fuel Co. v. Industrial Commission

172 Wis. 561 | Wis. | 1920

Siebecker, C. J.

The trial court properly held that it is the settled law of this state that the court obtains no jurisdiction to review an award of the Industrial Commission unless an action is commenced for that purpose within twenty days after the date of the award, “in which action the adverse party shall also be made a defendant” (Gough v. Industrial Comm. 165 Wis. 632, 162 N. W. 434), and that the adverse party is “the one in whose favor the award was made.” Hammond-Chandler L. Co. v. Industrial Comm. 163 Wis. 596, 158 N. W. 292. The question presented is, Did the court err in holding that Laso Ziroz is a necessary adverse party and that he must be served with summons to obtain jurisdiction of the action? That Lazo Ziroz, if served, would be a proper party may be conceded. The inquiry remains: Is he an adverse party who must be served with process to acquire jurisdiction? As above stated, the award is made payable to the alien property custodian under the federal Trading with the Enemy Act and the executive orders made pursuant to the authority conferred by Congress. 40 U. S. Stats, at Large, 411, ch. 106. Sec. 7 (c) of this act provides:

“If the President shall so require, any money or other property owing or belonging to or held for, by, on áccount of, or on behalf of, or for the benefit of any enemy or ally of enemy not holding a license granted by the President hereunder, which the President after investigation shall determine is so owing or so belongs or is so held, shall be comveyed, transferred, assigned, delivered, or paid over to the alien property custodian.”

The record discloses that the President, through the alien property custodian, has determined that the award in question be required to be paid to the alien property custodian. *564There is no controversy respecting the propriety of this requirement upon the ground that Ziroz was an ally of an enemy and that the demand was effectively made. It is provided by executive order of February 26, 1917, that such demand “shall forthwith vest in the alien property custodian such right, title, interest, and estate in and to and possession of the money or other property demanded and such power or authority thereover as may be included within the demand, and the alien property custodian may thereupon proceed to administer such money and other property in accordance with the provisions of the .'Trading with the Enemy Act,’ ” under the orders, rules, and! regulations authorized to be made. The effect of the act and executive orders is to vest title in the custodian. Youghiogheny & Ohio C. Co. v. Industrial Comm. 171 Wis. 347, 176 N. W. 855. The necessary consequence is that Lazo Ziroz retains no right or power, over the award and the alien property custodian has title thereto to the exclusion of Ziroz. Under these conditions he cannot be considered the adverse party within the contemplation of the statutes and hence he is not a necessary party to the action to test the legality of the award in court. The alien property custodian is in law the adverse party for the purposes of this action as the person in whose favor the award is made. Service and appearance of the alien property custodian gave the court jurisdiction of the parties and the subject of the action. The court having acquired jurisdiction and the necessary parties appearing in the action, plaintiff is entitled to proceed to litigate the issues that may be presented. ' This makes it unnecessary to discuss other questions in the case. The application to amend the summons and complaint to make Dr. Herschman a defendant in his capacity of representative of the royal consulate of Sweden becomes immaterial.

By the Court. — The judgment appealed from is reversed, and the cause remanded for further proceedings.