Midget Consol. Gold Min. Co. v. Industrial Com'n of Colo.

• Decision Date: 08 November 1920
• Docket Number: 9829.
• Citation: 193 P. 493,69 Colo. 218
• Parties: MIDGET CONSOL. GOLD MINING CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

193 P. 493

69 Colo. 218

MIDGET CONSOL. GOLD MINING CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 9829.

Supreme Court of Colorado

November 8, 1920

Department 2.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Proceeding by Mariellan Mishey under the Workmen's Compensation Act to obtain compensation for the death of her husband, Calvin H. Mishey, opposed by the Midget Consolidated Gold Mining Company and others. There was an award of compensation, and on suit for review, an affirmance of the award, and the employer and others bring error.

Action of court in affirming award reversed, and cause remanded with directions to dismiss the suit without affirmance.

Boswell F. Reed and Robert W. Steele, Jr., both of Denver, for plaintiffs in error.

Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen. (H E. Curran, of Denver, of counsel), for defendants in error.

DENISON, J.

This case is brought here on error to the district court of Denver, which upon a writ of review to the Industrial Commission affirmed the commission's award.

Mariellan Mishey instituted proceedings before the Industrial Commission to get compensation from plaintiffs in error for the death of her husband, Calvin H. Mishey, and on October 8 1919, was awarded $2,500. One Doepke was acting in the matter for the plaintiffs in error. On October 9th, at Cripple Creek, he received notice of the award, and under date of October 10th wrote to the commission at Denver, asking 'the number of days which the law permits me to file an appeal.' The commission appears not to have received this till October 16th. They replied October 21st, inclosing blanks for a petition for review, saying:

'Petition for review should be filed within 10 days from the date of the referee's award.'

The court held that their suit could not be maintained, because the petition for review was not filed within the 10 days provided by statute. In this the court was right, following sections 97, 98, chapter 210, Laws of 1919, and Passini v. Ind. Comm., 64 Colo. 349, 171 P. 369, and Stacks v. Ind. Com., 65 Colo. 20, 170 P. 588, which hold that, without an application to the Commission for review, no case can be reviewed by the district court.

Doepke and the other plaintiffs in error are presumed to know the law. They could actually have known it within a few hours, without writing to Denver. Neglect, discourtesy, or inefficiency on the part of the commission, if there was such, cannot relieve them from this presumption, nor from the necessity of compliance with the statute.

The court, however, affirmed the award of the commission. We think it should have dismissed the suit. Section 98, above cited, provides:

'No action, proceeding or suit to set aside, vacate or amend any

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