Buckner v. Dillard

LESTER, O. J.

This cause is before tbe court on motion to vacate tbe award of tbe Industrial Commission for tbe reason that tjbe petitioner has been unable¡ to secure a transcript of tbe proceedings before tbe Commission. The motion to vacate is verified by E. R. Jones, one of tbe attorneys for tbe petitioners.

Tbe motion shows that tbe petitioners in tbe month of August, 1930, filed their petition to review an award entered by tbe State Industrial Commission on tbe 15th day of July, 1930; and that the petitioners on August 18, 1930, filed in this court their verified motion advising tbe court that tbe evidence tending to support the findings of the Commission bad never been transcribed by tbe stenographer provided by tbe Commission in taking said evidence; and that tbe evidence consisted of several witnesses; that tbe petitioners bad ordered from tbe secretary of tbe State Industrial Commission a copy of said record and offered to pay the cost of securing tbe same; that tbis court on September 9, 1930, made and entered an order directing tbe Industrial Commission to forthwith certify to this court a transcript of the proceedings bad before tbe said Industrial Commission. Notwithstanding this order the State Industrial Commission has failed to file its transcript of tbe evidence in said cause.

Petitioners further state that after tbe filing of said petition for review they sought and obtained an order from this court allowing 20 days after the filing of tbe transcript within which to file briefs; that since the making of tbe last order they have repeatedly sought to obtain a copy of tbe said evidence; that they have written many letters to the secretary of tbe Industrial Commission and numerous letters to the stenographer that took tbe evidence; that petitioners state that they have applied many times in person to said stenographer and reporter seeking a copy of tbe evidence, and notwithstanding tbe order of this court and repeated requests of tbe petitioner, tbe evidence has never been supplied.

Tbe petitioners further state in their motion that tbe evidence would reveal to this court that tbe award was not justified, and the petitioners further state that they have tried to obtain: tbe record in order that they might submit this cause to this court and through no fault of the petitioners they have been, unable to secure said transcript.

The Attorney General in behalf of the Industrial JCommission /filed its response to the motion to remand said cause to the Industrial Commission and state in part:

“That the stenographer who took the shorthand notes and the testimony is not now and has not been for sometime in the employ of the Industrial Commission and for that reason the Commission has been unable to comply with the order of the court; said respondent, therefore, agrees with the petitioner that this cause should be remanded because of the failure to> furnish transcript of the proceedings had thereon.”

Under authority of section 2 of art. 7, of the Constitution of Oklahoma, which provides, in part:

“The original jurisdiction of the Supreme Court shall extend to general superintending control over all inferior courts and all commissions and boards created by law.”

—also, 4 Cyc. 1118:

“Sometimes a cause is remanded without decision for an entire new trial, as where, by reason of loss of papers or for other reasons, the record is in such shape that an, intelligent disposition of the cause cannot be made by the appellate court”

—the award is vacated and a new hearing ordered.

RILEY, I-IEPNER, CULLISON, SWIN-DALL, ANDREWS, McNEILL, and KORN-EGAY, JJ., concur. CLARK, Y. C. J., absent.