by counsel for plaintiff in error that the Workmen's Compensation Act of Indiana cannot apply to employees of foreign corporations carrying on interstate commerce in that state. We think it is plain, under the Indiana statute, fairly construed, that the court was authorized to enter judgment against plaintiff in error, even though the deceased employee was engaged in interstate commerce, and if the judgment of the Indiana court is erroneous it cannot be inquired into here.

[4] Counsel for plaintiff in error further insist that the circuit court of Cook County erred in admitting in evidence, over the objection of plaintiff in error, the Workmen's Compensation Act of Indiana. The usual rule is that where the statutes of another state are merely evidence of ultimate facts they need not be pleaded. 20 Ency. of Pl. & Pr. 599; see, also, Hurd's Stat. 1916, chap. 51, sec. 10, p. 1306. The Indiana statute, therefore, was properly admitted in evidence without being pleaded. [5] It is further contended that the contract of employment between the deceased and plaintiff in error was executed July 10, 1915, and, as the Workmen's Compensation Act did not become effective until September 1 of that year, that by the terms of said act contracts entered into prior to September 1 were excluded from its operation. With this we do not agree. Section 4 of the Indiana act provides:

"Every contract of service between any employer and employee covered by this act, written or implied, now in operation or made or implied prior to the taking effect of this act, shall after the act has taken effect, be presumed to continue."

It then goes on to provide that every contract in force after the act goes into effect shall come within its provisions. We do not think there is any merit in this objection.

Certain other questions are raised by counsel for plaintiff in error which we think are incidental to the points already decided, but they do not need any independent discussion.

We find no reversible error in the record. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

SUPREME COURT OF ILLINOIS.

MCMURRAY

VS.

PEABODY COAL CO. (No. 11582.)*

1. WORKMEN'S COMPENSATION-SCOPE OF INQUIRY.

When a certified copy of the decision of the board is filed in accordance with the statute to obtain judgment, the circuit court is without jurisdiction to review the action of such board, and is only authorized to enter judgment upon a showing that the requirements of the statute have been met.

2. WORKMEN'S COMPENSATION PROCEEDINGS

DEFAULT.

OPENING

On an application to set aside a default judgment on an award of the board, the facts set forth in the motion and supporting affidavit must be assumed to be true when no counter affidavits are filed.

3. WORKMEN'S COMPENSATION PROCEEDINGS-COSTS.

Where after an award by the Industrial Board is made a lump sum award on the claimant's application, which the employer rejected as authorized by statute, and the claimant then gave four notices at different times that he would apply for judgment on an award, the first of which specified that application would be made for judgment on the lump sum award, and others for specifying the award on which judgment would be asked, and it appeared that the claimant had refused to accept weekly payments or any other payments except the lump sum award, the employer had a meritorious defense to the allowance of attorney's fees. 4. WORKMEN'S COMPENSATION PROCEEDINGS-COSTS.

Workmen's Compensation Act (Laws 1913, p. 349) § 19 (g), provides that either party may present a certified copy of the decision to the circuit court whereupon such court shall render a judgment in accordance therewith, and that, where the employer does not institute proceedings for a review of the decision and refuses to pay compensation according to the award upon which judgment is entered, the court shall in entering judgment tax as costs against him the reasonable costs and attorney's fees in the arbitration proceedings and in such court. Held, that the statute gives no authority to allow an attorney's fee to be taxed against the party paying the compensation unless such party refuses to pay the compensation or some installment thereof when it becomes due. 5. WORKMEN'S COMPENSATION-JUDGMENT-OPENING DEFAULT.

After an award was made by the Industrial Board, the claimant petitioned for a lump settlement, and a lump sum award was made which the employer rejected. Thereafter the claimant gave four notices that he would apply for judgment on the award, the first specifying the lump sum award as the one on which judgment would be asked, and the others not specifying the award. On dates mentioned in each of the notices except the last the claimant failed to appear or docket the cause, and the presiding judge promised the employer's attorneys that they would be * Decision rendered, Dec. 19, 1917. 118 N. E. Rep. 29.

given notice if application for judgment was filed. At 9 o'clock a. m. on the date specified in the fourth notice the application was presented and the cause docketed, and a different judge from that previously presiding immediately entered judgment, though, when court adjourned to that date, it was stated and announced that no orders would be taken in any case until 10 o'clock. Within an hour thereafter the employer moved to vacate the judgment and for leave to defend on the merits and showed by affidavit that it had never refused payment of compensation in installments in accordance with the first award, and that the claimant had refused to accept any payment except the lump sum. Held, that the employer showed a reasonable excuse for its default, that it had a meritorious defense, and had used due diligence in presenting its motion, and the denial of the motion was an abuse of discretion.

6. WORKMEN'S COMPENSATION—AWARD-INTEREST.

A judgment on an award of the Industrial Board properly allowed interest on the award and each past-due installment from the time it became due and payable under the statute.

Error to Circuit Court, Montgomery County; William B. Wright, Judge.

Proceedings under the Workmen's Compensation Act by M. J. McMurray, administrator, to obtain compensation for the death of his intestate, Vincent Owasne, opposed by the Peabody Coal Company. Compensation was awarded, and a judgment entered on the award, and to review an order denying a motion to vacate the judgment, defendant brings error. Reversed and remanded, with directions.

Hill & Bulington, of Hillsboro (E. H. Hicks, of Chicago, of counsel), for Plaintiff in Error.

Paul McWilliams, of Litchfield, for Defendant in Error.

DUNCAN, J.

Defendant in error, M. J. McMurray, administrator of the estate of Vincent Owasne, deceased, obtained a judgment against plaintiff in error at the April term, 1917, of the circuit court of Montgomery County on an award for compensation allowed by the Industrial Board under the provisions of the Workmen's Compensation Act of 1913. Plaintiff in error moved to vacate the judgment and for leave to file an answer and to defend the suit upon the merits, but the circuit court denied the motion, and plaintiff in error brings the record here for review on a writ of error issued out of this court on a certificate of the trial judge that in his opinion the case is one proper to be reviewed by this

court.

The claim for compensation is based on an injury received by the deceased September 22, 1914, which resulted in his death. The claim was heard before an arbitrator, who found that defendant in error was entitled to receive from plaintiff in error $5.04 per week for 415 weeks and $4.40 for one week, and that $499.92 thereof had accrued from the death of the deceased. The decision of the arbitrator was filed with the Industrial Board August 16, 1916, and the board entered of record the decision of the arbitrator as the decision of the board; no petition for review having been filed. Defendant in error subsequently filed

Vol. I-Comp. 22.

with the Industrial Board a petition for a lump sum settlement, according to the provisions of section 9 of the Workmen's Compensation Act of 1913. The prayer of the petition was granted December 29, 1916, and plaintiff in error was ordered to pay $1,967.94 in a lump sum. On January 6, 1917, plaintiff in error filed with the Industrial Board its rejection of said lump sum award, as it was authorized to do by said section 9 if said lump sum award was not satisfactory to it. On January 23, 1917, defendant in error gave notice that on February 10, 1917, he would make application to the circuit court for judgment on said lump sum award. Thereafter defendant in error gave notice that he would apply to the circuit court for judgment on the award of the Industrial Board on February 17, 1917, afterwards that he would apply for such judgment to said court on March 10, 1917, and still later gave a fourth notice that he would apply to said court at 9 o'clock a. m. on April 4, 1917, for such judgment. No one of the last three notices above mentioned stated definitely whether the judgment would be sought by plaintiff in error in the circuit court on the lump award or on the first award of the Industrial Board. The circuit court convened at 9 o'clock a. m. on April 4, 1917, and at once, and on said application of defendant in error, in the absence of plaintiff in error's counsel, considered the application for judgment, and found that defendant in error was entitled to receive the $499.92, with interest thereon from August 16, 1916, amounting to $15.84, and that the unpaid installments on said award to date of the judgment amounted to $166.32 The court then gave judgment, by which it ordered plaintiff in error to pay to defendant in error $682.08, together with $200 attorney's fees to be taxed as costs, and that it pay the defendant in error the further sum of $1,429.76 in installments, at the rate of $5.04 per week, beginning April 11, 1917, and continuing for a period of 283 weeks, and that it then pay the further sum of $3.44 one week after the expiration of the last-mentioned period. The judgment provided for execution against plaintiff in error for $682.08 and $200 attorney's fees, and further provided that as often as plaintiff in error should make default in the payment of any of the installments execution should issue for such installment after the same became due. On the same day, April 4, 1917, and within less than one hour after the judgment was entered, plaintiff in error filed its motion in said court to vacate the judgment and for leave to answer the petition and to defend the same upon its merits. The motion was supported by an affidavit of one of the attorneys for plaintiff in error setting forth the following alleged facts, in substance: That on December 29, 1916, the Industrial Board made a lump sum award to defendant in error in the sum of $1,967.94; that notice of said lump sum award was received by plaintiff in error December 30, 1916, and that on January 6, 1917, it filed its rejection of said lump sum award; that plaintiff in error has never

denied or refused payment of compensation in bimonthly installments or in any other manner except in a lump sum; and that it stood ready and willing at that time, and has since the finding of the arbitrator been ready, able, and willing, to continue the payments bimonthly or weekly until said total sum should be fully paid. It is then set forth in the affidavit that defendant in error gave to plaintiff in error said four notices that he would appear before the court on the days and hours therein mentioned and ask for judgment in accordance with the notices therein specified, and copies of the notices are made part of the affidavit and filed therewith as exhibits to the same. The motion and the affidavit further set forth that on each and every occasion or date mentioned in said notices for the applications for judgment, except that mentioned in the last notice aforesaid, defendant in error failed to appear and ask for judgment in accordance with his notice, and did not at any of said times have said cause docketed in said court until 9 o'clock a. m. of April 4, 1917, the very hour named in said last notice for the application for judgment; that on one or more of those occasions the attorneys for plaintiff in error went before Hon. Thomas M. Jett, the then presiding judge, and informed the court of their receipt of the aforesaid notices, and requested the court to call the attention of said attorneys to the filing of said petition and application for orders thereon, if the same should be filed by defendant in error; that said court informed said attorneys that he would do so; that when said court adjourned to convene again on April 4, 1917, the court at the time of the said adjournment announced that no orders would be taken in any case until 10 o'clock in the morning of April 4, 1917; that there was no entry on the docket of this case until the hour and minute of the taking of said judgment, and no opportunty was given to have counsel noted on the docket as appearing for plaintiff in error, so that the rule with reference to defaults in said court might be invoked; that counsel for claimant has already been allowed the sum of $196.94 as attorney's fees for obtaining said award by the Industrial Board; that plaintiff in error can produce evidence to show that defendant in error has refused to accept compensation in this case otherwise than in a lump sum; and that plaintiff in error has a meritorious defense to said petition, especially as to the amount of attorney's fees allowed by said court, because, if it had been known to plaintiff in error that defendant in error was only asking for the sum due upon said award in weekly installment, the same would have been paid to him. No counter affidavits were filed in opposition to said motion. The motion also challenges the constitutionality of the section of the Workmen's Compensation Act allowing attorney's fees in any event.

[1, 2] The general rule in regard to vacation of judgments is that a motion to set aside a default and for leave to plead to the merits is addressed to the sound legal discretion of the trial court,