DISSENTING OPINION I agree with the majority in all particulars except as to the concluding sentence of its opinion which reads as follows: "Appellee employer contends the Industrial Board erred in the amount of compensation awarded to the minor appellees. It is well established that errors committed against an appellee will not be noticed for any purpose unless brought to the appellate tribunal by an assignment of cross-errors." I concede that this is the accurate statement of a well recognized and firmly established rule of appellate court practice but, in my opinion, the facts in the present case forbid its application.
The records and briefs of counsel disclose that the award of the Industrial Board is in an amount exceeding its statutory authority to make. This is a death claim and under no circumstances had the Industrial Board jurisdiction to make an award in the principal amount of over $5000.00, yet it has done so, the statute to the contrary notwithstanding. The majority knows this yet it chooses to close its eyes to the situation because the appellee employer filed no assignment of cross-errors through which the matter is technically brought to our attention and because the appellant, though properly raising the question, is in no position to complain. Thus *Page 150 this court approves what it knows to be, in part at least, anultra vires award and sanctions the Industrial Board in its disregard of its jurisdictional limitation. In my opinion we have no more jurisdiction to affirm this award in its entirety than the Industrial Board had to make it. The parties, by conduct, consent or agreement, could not vest jurisdiction in the Industrial Board to make an award in this case in excess of $5000.00 nor do their conduct and failures in this appeal justify us in sanctioning the Industrial Board in what amounts to the setting aside of an act of the legislature. In my opinion this case should be remanded with instructions to amend the award by remitting from the principal sum all excess over $5000.00.
NOTE. — Reported in 62 N.E.2d 880.