THIS is a workmen's compensation case. The foregoing parties are referred to, in order, as the commission, the fund, the coal company, and the claimants; and Leo Martinez, formerly husband of Millie H. Martinez, as the deceased.
Deceased was employed by the coal company whose compensation insurance was carried by the fund. He met his death as the result of an accident arising out of and in the course of his employment. Claimants filed with the commission whose referee found in their favor, basing his award on an average weekly wage of $19.11. On petition for review the commission itself fixed the same amount. Claimants took the cause to the district court where the award was modified on the basis of an *Page 33 average weekly wage of $22.73. To review that judgment this writ is prosecuted. The total award of the commission was $2,985.94, which the district court increased to $3,545.67.
[1, 2] The judgment must be reversed because the district court never had jurisdiction. "No action, proceeding or suit to set aside, vacate or amend any finding, order or award of the commission, or to enjoin the enforcement thereof, shall be brought unless the plaintiff shall have first applied to the commission for a review as herein provided * * *." 35 C. S. A., c. 97, § 377. The foregoing section is mandatory. French v. IndustrialCom., 85 Colo. 173, 274 Pac. 742. This point was not raised below but since it is jurisdictional that is immaterial. 3. C. J. p. 755 par. 652; Baker v. Denver TramwayCo., 72 Colo. 233, 210 Pac. 845.
[3] The only review here had, or sought, was a review of the award of the referee, not the commission. The very purpose of the statute is that errors or oversights may thus be brought to the attention of the commission itself, which has the sole power to make a final award. Counsel for claimants simply takes the position that "a petition to the commission asking that it review the findings of the referee is all that is necessary" and cites no authorities. We are unable to agree with him.Carlson v. Industrial Com., 79 Colo. 124, 244 Pac. 68;Passini v. Industrial Com., 64 Colo. 349, 171 Pac. 369;Zuver v. Industrial Com., 80 Colo. 429, 252 Pac. 361;Midget Mining Co. v. Industrial Com., 69 Colo. 218,193 Pac. 493.
[4] "It is clear that the district court could acquire no jurisdiction over the subject matter unless the fact appeared in the record that the petitioner had made application to the commission for a rehearing." Stacksv. Industrial Com., 65 Colo. 20, 23, 174 Pac. 588.
The complaint must allege the filing of a petition for review provided by statute, otherwise the court acquires *Page 34 no jurisdiction, and the point may be raised by demurrer.Brady v. Industrial Com., 80 Colo. 62, 249 Pac. 6.
[5] Errors not specified in the petition for review can not be considered by the courts. London Co. v.Sauer, 92 Colo. 565, 22 P.2d 624. Hence, irrespective of allegations of complaint or answer, the petition must appear in the record.
[6] No "answer" of the commission, as that term is usually employed, is known to our court proceeding to review such an award. The statute provides that the commission shall "make return to said court of all documents and papers on file in the matter, and of all testimony taken therein, and certified copies of all its findings, orders and awards, which return shall be deemed itsanswer to said complaint." '35 C. S. A., c. 97, § 380. Hence if the petition for review, which is jurisdictional, does not appear in the commission's return then lack of jurisdiction affirmatively appears from the pleadings themselves.
[7] However, it also clearly appears from the record that the notice of award required by section 376, chapter 97, C. S. A. '35 is deficient in that the affidavit of mailing bears a date prior to that of the award. Said section provides: "Such petition must be filed within fifteen days after the * * * award of the commission * * *. All parties in interest shall be given due notice of the entry of * * * any award of the commission, and said period of fifteen days shall begin to run only after such notice * * *."
Therefore, where no notice, or an insufficient notice, is given, the time within which the petition for review must be filed does not run.
The judgment is accordingly reversed and the cause remanded with directions to the district court to refer the matter to the commission with instructions to give proper notice of the award in conformity with the statute. Thereafter the parties may proceed as they are advised.
MR. JUSTICE BOUCK concurs specially. *Page 35