Callen v. State

Nebraska Supreme Court

Callen v. State

288 N.W. 547, 137 Neb. 192, 1939 Neb. LEXIS 201

CourtNebraska Supreme Court

DecidedNovember 24, 1939

DocketNo. 30704

StatusPublished

Cited by2 cases

This text of 288 N.W. 547 (Callen v. State) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Callen v. State, 288 N.W. 547, 137 Neb. 192, 1939 Neb. LEXIS 201 (Neb. 1939).

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Opinion

Carter, J.

This is a suit under the workmen’s compensation law against the state of Nebraska and the department of public works to recover compensation for dependency resulting from the death of Walter Callen. The death of Walter Callen is alleged to have been caused by an accident arising out of and in the course of his employment as an operator of a road maintainer for the department of roads and irrigation of the state. The district court entered an award and the state appeals.

The attorney general complains of the overruling of the special appearance filed by him in the district court on behalf of the state. It appears from the record that service on the state was attempted by serving a summons on the governor, the head of the' department of roads and irrigation and the attorney general, under the provisions of section 27-321, Comp. St. 1929. In a recent case we held that this section was not applicable and that the legislature had failed to provide the manner in which service of process may be had against the state, or a department of the state government, in a compensation case, as required by section 22, art. V of the Constitution. Anstine v. State, ante, p. 148, 288 N. W. 525.

It is also contended by appellee that the voluntary appearance filed by the attorney general and the subsequent general appearance that he made in the case are the equivalent of proper service. This was also decided contrary to the contentions of appellee in the Anstine case. There being no provision of statute for process against the state in a [194]*194compensation case, and the attorney general being without power to make an appearance binding upon the state, the trial court erred in not sustaining the special appearance filed by the attorney general on the state’s behalf.

For the reasons stated, the special appearance is sustained and the judgment of the district court reversed.

Reversed.

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Carter, J.

This is a suit under the workmen’s compensation law against the state of Nebraska and the department of public works to recover compensation for dependency resulting from the death of Walter Callen. The death of Walter Callen is alleged to have been caused by an accident arising out of and in the course of his employment as an operator of a road maintainer for the department of roads and irrigation of the state. The district court entered an award and the state appeals.

The attorney general complains of the overruling of the special appearance filed by him in the district court on behalf of the state. It appears from the record that service on the state was attempted by serving a summons on the governor, the head of the' department of roads and irrigation and the attorney general, under the provisions of section 27-321, Comp. St. 1929. In a recent case we held that this section was not applicable and that the legislature had failed to provide the manner in which service of process may be had against the state, or a department of the state government, in a compensation case, as required by section 22, art. V of the Constitution. Anstine v. State, ante, p. 148, 288 N. W. 525.

It is also contended by appellee that the voluntary appearance filed by the attorney general and the subsequent general appearance that he made in the case are the equivalent of proper service. This was also decided contrary to the contentions of appellee in the Anstine case. There being no provision of statute for process against the state in a [194]*194compensation case, and the attorney general being without power to make an appearance binding upon the state, the trial court erred in not sustaining the special appearance filed by the attorney general on the state’s behalf.

For the reasons stated, the special appearance is sustained and the judgment of the district court reversed.

Reversed.

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Bluebook (online)

288 N.W. 547, 137 Neb. 192, 1939 Neb. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callen-v-state-neb-1939.

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