Department of Highways v. Matney

• Decision Date: 24 April 1942
• Citation: 161 S.W.2d 617,290 Ky. 440
• Parties: DEPARTMENT OF HIGHWAYS v. MATNEY et al.
• Court: Kentucky Court of Appeals

161 S.W.2d 617

290 Ky. 440

DEPARTMENT OF HIGHWAYS v. MATNEY et al.

Court of Appeals of Kentucky

April 24, 1942

Appeal from Circuit Court, Johnson County; J. F. Bailey, Judge.

Proceedings under Workmen's Compensation Act by J. H. Matney employee, and others, opposed by the Department of Highways employer. From a judgment of the circuit court affirming an award of the Workmen's Compensation Board awarding employee total permanent disability compensation, employer appeals.

Affirmed.

Hubert Meredith, Atty. Gen., and William Hayes, Asst. Atty. Gen for appellant.

Wheeler & Wheeler, of Paintsville, for appellee.

FULTON Justice.

The appellee, J. H. Matney, while an employee of the State Highway Department, sustained an injury as the result of an accident arising out of and in the course of his employment. He was awarded total permanent disability compensation by a full board award of the Workmen's Compensation Board on June 4, 1940.

On July 26, 1940, an appeal from the award was filed in the Johnson circuit court. On August 5, 1940, appellee filed in the circuit court a number of pleadings, including special and general demurrers, answer to the petition for review and a motion to dismiss the appeal on the ground that it was not filed in the circuit court within twenty days after the rendition of the award as required by section 4935, Kentucky Statutes. The circuit court did not rule on the demurrer and motion to dismiss but affirmed the award on its merits and entered judgment accordingly. This appeal is from that judgment.

It is contended by appellee that the circuit court should have sustained his motion to dismiss the appeal taken to that court, which action would have had the same effect as the affirmance of the award on its merits, and that therefore we should affirm the judgment. Appellant contends, however, that by filing other pleadings in the circuit court at the same time the motion to dismiss the appeal was filed appellee entered his appearance to the appeal. Hollenbach Co. v Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524, cited by appellant, sustains this contention. Without citation of authority or discussion of the question it was said appearance was entered by filing answer to the merits without objection or motion to dismiss the appeal. However, we find that case to be out of harmony with prior and later cases in this court.

As far back as Krinn v. Helmbold, 113 Ky. 759, 68 S.W 1103, it was held that an appellate court was without jurisdiction to entertain an appeal not filed within the time provided by statutes. Some of the later cases confirming this rule are: Murray Motor Co. v. Overby, 217 Ky. 198, 289 S.W. 307; Moore v. Lee Court Realty Co., 240 Ky. 835, 43 S.W.2d 45; and La Crosse v. City of Ludlow, 231 Ky. 625, 21 S.W.2d 1003. In the latter case motion was made to dismiss an appeal in a declaratory judgment suit not filed in this court within the time permitted by statute. It was there contended, as is contended by appellant in the case before us, that appellee...