Gumilla v. Industrial Accident Commission

SHAW, C. J.

On August 26, 1921, the Industrial Accident Commission made an award in favor of the petitioners herein allowing them compensation as dependents of one Miguel Gumilla, on account of the death of said Gumilla from an injury received by him while in the employment of the California Hawaiian Sugar Refining Company. Notice of this award was served upon the adverse parties on the same day. The time for filing a petition for rehearing by the adverse parties expired on September 16, 1921. No petition was filed within that time, but on September 20, 1921, the said adverse parties filed with the Industrial Accident Commission a petition for a rehearing of the award made on August 26th, aforesaid. Thereafter, on November 16, 1921, an affidavit was filed on behalf of said parties, in effect showing that the failure to file the said petition for rehearing in time was the result of the inadvertence or neglect of their attorney. Thereupon, on November 19, 1921, the Industrial Accident Commission made an order declaring that the failure to file the petition within the twenty days allowed by the law was the result of inadvertence, surprise, and excusable neglect sufficient to excuse the failure, and thereupon it made an order as follows: “It is ordered that the petition for rehearing be, and it is hereby ordered filed

nunc pro tunc

as of September 16, 1921.” At the same time the Industrial Accident Commission made an order granting the application for a rehearing, and ordered the case to be submitted on the testimony already taken without further hearing. No decision of the matter on such submission has been made and the matter is still pending. The matter now before the court is the petition of Elias Gumilla and Paulina Gumilla to review and annul the order of the Industrial Accident Commission granting a rehearing, and that this court thereupon order that the findings and award originally made are final:

[1]

A writ of

certiorari

does not lie to review an order made in a matter prior to the final adjudication thereof. The Industrial Accident Commission proposes to decide the case again after the order granting the rehearing, but it

[640]