Paul v. Allender Brown Co.

• Court: Supreme Court of Kentucky
• Writing for the Court: STEWART
• Citation: Paul v. Allender Brown Co., 249 S.W.2d 163 (Ky. 1952)
• Decision Date: 23 May 1952
• Parties: PAUL v. ALLENDER BROWN CO. et al.

Page 163

249 S.W.2d 163

PAUL v. ALLENDER BROWN CO. et al.

Court of Appeals of Kentucky.

May 23, 1952.

R. E. Lee Murphy, Lexington, for appellant.

Leer Buckley and I. J. Miller, Lexington, for appellees.

STEWART, Justice.

This case requires us to review the validity of an order sustaining a special demurrer to the petition in an appeal of Joe Paul from the Workmen's Compensation Board to the Fayette Circuit Court for the reason that the appeal was not taken in time. Joe Paul has appealed from the judgment dismissing his petition after he declined to plead further.

The facts are that on September 5, 1950, appellant filed a motion before the Board, pursuant to KRS 342.125, to reopen an award previously made to him, alleging change of condition on his part and fraud and mistake upon the part of appellees. An order overruling this motion was entered by the Board on September 19, 1950. On October 9, 1950, appellant filed a motion seeking to have the Board reconsider and set aside its order of September 19th. The last motion was ordered overruled by the Board on October 17, 1950. An appeal was prosecuted by appellant on October 26, 1950, from the Board to circuit court with the result that the case was dismissed because the lower court adjudged it was not filed before it within the 20-day period of time required by KRS 342.285(1).

The question to be decided is: Should the 20-day period of time be calculated from September 19th or from October 17th?

So much of KRS 342.285(1) as applies to this case is as follows:

'* * * An award or order of the board upon review * * *, shall be conclusive and binding as to all questions of fact, but either party may, within twenty days after the rendition of such final award or order of the board, by petition appeal to the circuit court that would have jurisdiction to try an action...