Geo. W. Condon Co. v. Williams
| Decision Date | 02 October 1939 |
| Docket Number | 14624. |
| Citation | 105 Colo. 66,94 P.2d 713 |
| Parties | GEO. W. CONDON CO. et al. v. WILLIAMS. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, Gunnison County; George W. Bruce, Judge.
Action by Dewey G. Williams, employee, against the Geo. W. Condon Company, employer, and others, to review the Industrial Commission's award of compensation to plaintiff for permanent partial disability. Judgment for plaintiff, and defendants bring error.
Reversed.
Byron G. Rogers, Atty. Gen., and Frank A. Bruno, Asst. Atty. Gen., for Industrial Commission.
Harold Clark Thompson and Louis Schiff, both of Denver, for State Compensation Insurance Fund and Geo. W. Condon Co.
No appearance for defendant in error.
A proceeding Before the Industrial Commission. October 5, 1938, a commission referee found the claimant had sustained permanent partial disability, and made an award. December 12, 1938, the commission, proceeding on claimant's petition for review of the referee's finding and award, found and awarded as had the referee. Claimant did not seek at its hands review of the commission's award. Instead, he sought direct review by an action instituted in the district court, where the finding was more favorable and a greater award adjudged.
Plaintiffs in error contend that the court was without jurisdiction to review the proceedings of the commission because of claimant's failure to comply with the provisions of section 377, chapter 97, '35 C.S.A., which reads: 'No action, proceeding or suit to set aside, vacate or amend any finding, order or award of the commission, * * *, shall be brought unless the plaintiff shall have first applied to the commission for a review * * *.' Construing the statute, we have held that review of the referee's finding and award by the commission does not meet this statutory requirement, and that unless there is application for review of the commission's own award, predicate for judicial review is lacking. Industrial Comm. v. Martinez, 102 Colo. 31, 77 P.2d 646. See, also, Mishmish v. Hayden Coal Co., 98 Colo. 373, 56 P.2d 21; Stacks v. Industrial Comm., 65 Colo. 20, 174 P. 588. Clearly, the record considered, the court was powerless to entertain the action.
That there may be order of dismissal, let the judgment be reversed.
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Varsity Amusement Co. v. Butters
...of the referee's order, as the claimant did in this case, is not sufficient to comply with the statutory mandate. Geo. W. Condon Co. v. Williams, 105 Colo. 66, 94 P.2d 713. We now turn to the points raised by the Fund. We find the Fund's contentions to be without First, claimant was not pre......
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