Summary
In Starr, the claim was dismissed for lack of jurisdiction due to the appellant's failure to include the claim number and designate which of the defendants was the employer.
Summary of this case from Spencer v. Freight Handlers, Inc.Opinion
No. 36836
Decided June 14, 1961.
Appeal — Adherence to statutory conditions essential — Special statutory requirements — Notice of appeal from Industrial Commission to Common Pleas Court — Section 4123.519, Revised Code.
APPEAL from the Court of Appeals for Allen County.
The plaintiff filed a claim for a death award with the Industrial Commission. The Administrator of the Bureau of Workmen's Compensation disallowed the claim. On appeal to the Toledo Regional Board of Review, the order of disallowance was affirmed. The Industrial Commission, on appeal from the order of the regional board, "ordered * * * that the appeal * * * from the order of the Toledo Regional Board of Review * * * be refused."
Within the statutory time for filing appeal, plaintiff filed a notice of appeal and petition in the Court of Common Pleas. The defendant administrator filed a motion "for an order dismissing plaintiff's notice of appeal and striking his petition from the record for the reason that this court has no jurisdiction over the subject of this action."
After the expiration of the statutory time within which to file notice of appeal, plaintiff filed an application requesting permission to amend the notice of appeal by inserting, at the end of the last sentence, the words, "in claim number 2171309," and, after the name of the Peerless Coal Company in the caption, the word, "employer."
The court overruled the plaintiff's motion to amend the notice of appeal and sustained the motion to dismiss the notice of appeal and the petition.
The Court of Appeals, on appeal on questions of law, reversed the judgment of the trial court and remanded the cause.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. James C. Blair and Messrs. Smart Smart, for appellee.
Mr. Mark McElroy, attorney general, Mr. William G. Carpenter and Mr. Alvin C. Vinopal, for appellant.
The notice of appeal, filed with the Court of Common Pleas, does not designate the Peerless Coal Company, one of the defendants, as employer and does not contain the claim number.
Section 4123.519, Revised Code, provides in part: "Notice of appeal shall state the names of the claimant and the employer, the number of the claim, the date of the decision appealed from and the fact that the appellant appeals therefrom." (Emphasis added.) This is a special statute applying to appeals from decisions of the Industrial Commission and controls over general statutes covering appellate procedure. The above-quoted mandatory provisions are jurisdictional and must be strictly complied with.
A very similar factual situation was presented in the case of American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147, in which case the following is stated in the opinion, at page 151:
"It must be conceded that the filing of the required notice of appeal must be within the time prescribed by the statute. That is a condition precedent to the enjoyment of the right of appeal conferred by the statute. Any of the other statutory requirements as to the notice would be a nullity if, subsequent to the time prescribed for perfection of the appeal, amendment of the notice, by supplying the statements required by the statute, would be permitted; for that would be equivalent to filing the required notice of appeal after the expiration of the time limit prescribed therefor."
See, also, Volz v. Volz, 167 Ohio St. 141.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.