Walsh v. Flour City Ornamental Iron Co. , 157 Minn. 396 ( 1923 )

Dibbll, J.

On July 16, 1920, James Harold Walsh, a minor, was injured while in the employ of the defendant. In November, 1920, an action for a large amount was brought by his father, as his natural guardian, to recover for such injuries. The case, was reached for trial on. January 19, 1922. There was on that date entered on the record card of the case in ink the words: “Stricken from the calendar by order of the court.” So far as appears from the court records nothing further was done for a year. The record stood with the notation as indicated.

On March 1,1923, the defendant moved for an order dismissing the case, and directing the clerk to enter upon the records of the court as of January 19, 1922, an order dismissing the action. The motion was granted on March 14, 1923, the action was dismissed and the clerk was directed to enter the dismissal as -of January 19, 1922. From the order of March 14, 1923, this appeal is taken by the plaintiff and by the minor.

While there is some conflict in the affidavits used upon the hearing of the motion, the evidence is ample if not compelling that, on January 19, 1922, counsel for the defendant was in court with his witnesses, that the plaintiff did not appear, and that the court on the motion of the defendant dismissed the action. In granting the motion here involved the court in effect so found, and no criticism is to be made on the finding. It was the one to be expected. There was no judgment of dismissal entered on January 19, 1922, nor at any time. No bar resulted from what was then or at any time done.

The minor desires the setting aside of the dismissal, the reinstatement of the action, and leave to proceed with it as a compensation proceeding. He has petitioned for practically such relief. It is recognized practice to permit an action commenced as a common law one to continue as a compensation proceeding when it appears that it should so proceed. Kreidler v. Mahnomen Elec. L. & P. S. Co. 154 Minn. 23, 191 N. W. 277, and cases cited. This will be permitted to avoid the limitation of the compensation act. The privilege of continuing it so, if it is a privilege rather than a right, has perhaps never been denied. Whether the minor- could be' relieved, after a year under G. S. 1913, § 7786, which permits relief within one year after notice, against a judgment entered nunc pro tunc as of January 19, 1922, and the action be reinstated, is in the view of a majority of the court so doubtful that judgment should not have been entered nunc pro tunc. The motion for such an entry likely had in view the prevention of a proceeding under the compensation act. All are agreed that under the facts shown in the record the minor should be allowed to present his application for a vacation of the dismissal, a reinstatement of the action, and for leave to continue it as a proceeding for the recovery of compensation, unhampered by a claim of the one year bar fixed by G. S. 1913, § 7786. The construction of the compensation act is always liberal in favor of an employe.

The order of March 14, 1923, is modified by striking out the portion directing the entry as of date January 19, 1922.

Order modified.