Bammes v. Viking Mfg. Co.

• Decision Date: 07 March 1964
• Docket Number: No. 43778,43778
• Citation: 192 Kan. 616,389 P.2d 828
• Parties: Clifford O. BAMMES (Claimant), Appellant, v. VIKING MANUFACTURING COMPANY (Respondent) and Trinity Universal Insurance Company (Insurance Carrier), Appellees.
• Court: Kansas Supreme Court

Page 828

389 P.2d 828

192 Kan. 616

Clifford O. BAMMES (Claimant), Appellant, v.VIKING MANUFACTURING COMPANY (Respondent) and Trinity Universal Insurance Company (InsuranceCarrier), Appellees.

No. 43778.

Supreme Court of Kansas.

March 7, 1964.

Syllabus by the Court

1.The question of a court's jurisdiction over the subject matter of an action can and should be raised by the court on its own motion at any stage of a proceeding.

2.An appeal does not lie from the findings and award of a workmen's compensation

examiner.Under the provisions of G.S.1961 Supp., 44-556 an appeal will lie only from an award approved by the director.

C. K. Sayler, Topeka, argued the cause, and David H. Fisher, Donald Patterson, and Jack L. Summers, Topeka, and Richard Wells, Manhattan, were with him on the briefs for appellant.

John F. Stites, Manhattan, argued the cause, and Richard D. Rogers, Manhattan, was with him on the briefs for appellees.

PARKER, Chief Justice.

This case involves the right of an employee to the allowance of an award under the existing provisions of the Workmen's Compensation Act.

The facts necessary for determination of the present appeal, all of which are supported by the record, are well stated in the memorandum decision of the district court which reads in part:

'This is an appeal in a Workmen's Compensation case wherein the examiner for the Workmen's Compensation Director found that claimant sustained personal injury and accidental injury on September 17, 1958, and October 10, 1958.The respondent and carrier paid claimant six weeks of temporary total disability and his medical expenses, the last payment being December 9, 1958.In addition the examiner found that compensation should be paid to claimant for a thirty percent loss of use of the left leg (200 weeks X 30 percent=60 weeks less 6 weeks temporary total, or 54 remaining weeks) and that fifty-four weeks are presently due and owing and should be paid in one lump sum, or $2,052.00 without discount.

'The matter was heard by the examiner at Manhattan, Kansas, on September 26, 1962, and his award was filed April 9, 1963.The respondent and insurance carrier appealed to the District Court on April 15, 1963.Both sides filed an application for review by the director, the claimant on April 17, 1963, and the respondent and carrier on April 18, 1963.The director, on April 19, 1963, notified the parties that since an appeal had been filed in the District Court, he was divested of further jurisdiction in the case until the appeal was fully litigated and denied the application for review.'

The district court proceeded to review the award of the examiner and set it aside for the reason that the claimant had not commenced his action for compensation before the director within a reasonable time, the time being over three years after the last compensation was paid.In reaching its conclusion the court cited Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P.2d 471;Clark v. A. Tucker Electric Co., 185 Kan. 580, 345 P.2d 620.

The claimant has appealed to this court from the judgment of the district court setting aside the examiner's award.

At the outset we are required to consider a jurisdictional question which has not been raised by the parties.In doing so we pause to note, without lengthy discussion, a few general principles pertaining to jurisdiction.

If the district court has no jurisdiction over the subject matter, this court has no jurisdiction on appeal.A court has an original and continuing duty to determine whether it has jurisdiction of the subject matter of an action.It is the duty of this court on its own motion to raise the question of jurisdiction.For just a few of our many decisions, where the foregoing principles are considered, discussed and applied, seeMartin v. Forestry, Fish and Game Commission, 185 Kan. 796, 798, 347 P.2d 276;Leach v. Leach, 184 Kan. 335, 336 P.2d 425;Jeffers v. Jeffers, 181 Kan. 515, 313 P.2d 233;andWilley v. Gas Service Co., 177 Kan. 615, 281 P.2d 1092.See, also, Hatcher's Kansas Digest [Rev. Ed.], Courts, § 12, and West's Kansas Digest, Appeal and Error, § 23.

For reasons to be presently stated we are forced to conclude that since the appeal was taken from the award recommended by the examiner, and not from the final award of the Workmen's Compensation Director, the appeal to the district court was immature.

The right to appeal to the district court from an adverse ruling in a workmen's compensation proceeding is governed by G.S.1961 Supp., 44-556 which, in part, provides:

'Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the director to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the director.* * * Such appeal shall be taken and perfected by the filing of a written notice of appeal with the director within twenty (20) days after the decision, finding, award or ruling appealed from shall have been made and filed by the director, * * *.'

The statutory language just quoted makes it clearly appear that the appeal to the district court is from a decision, finding, award or ruling made and filed by the director, not from the findings or award of the examiner.

The findings and award of the examiner are nothing more than recommendations to the director.They have no effect in and of themselves and are subject to approval, amendment or rejection by the...