dissenting.
On January 18, 1966, plaintiff filed a document entitled “Amended and Supplemental Complaint” alleging that a petition for rehearing had been filed with the Commission and more than 60 days had elapsed thereafter without action. The majority holds that such pleading was a nullity because the pleading it attempted to amend and supplement was a nullity. The initial pleading was a nullity because the circuit court had no “jurisdiction” at the time it was filed because plaintiff had not yet filed a petition for rehearing.
If plaintiff, instead of filing a document entitled “Amended and Supplemental Complaint,” had paid a new filing fee, been assigned a new file number and entitled the document “Complaint,” such procedure would not have been a nullity and would have “kept plaintiff in court.”
In my opinion the necessity for orderly procedure does not require the drastic remedy of dismissal in this cause because what I consider mere clerical distinctions were not observed. The petition for rehearing *136was timely filed and the pleading alleging the filing of the petition for rehearing was timely filed.
This court has previously been divided upon the question of whether a failure to comply with statutory requirements results in a failure of “jurisdiction” and as to the consequences thereof. For example, Parmele v. Mathews, 233 Or 616, 379 P2d 869 (1963).
The same issue appears to have been raised in Fay v. McConnell, 229 Or 128, 366 P2d 327 (1961), but not in the nomenclature of “jurisdiction.” That was a suit on a note against an estate represented by an executor. The executor’s sole contention on appeal was that a suit cannot be maintained against an executor upon a claim against an estate unless the claim has been presented to the executor and rejected by him or held for at least 60 days without any action. ORS 116.520, 121.090.
ORS 121.090 states: “An action against an executor or administrator shall not be commenced until the claim of the plaintiff has been duly presented to the executor or administrator, and by him rejected.”
The language of this statute seems no more or no less mandatory than that of the statute in the present case, i.e., the claimant “must, before he appeals to the courts, file with the commission an application for rehearing * * ORS 656.284(1).
Nevertheless, although the plaintiff in Fay v. McConnell, supra, never did file a claim with the executor and never did allege that he filed a claim with the executor, plaintiff’s judgment against the executor was affirmed. This court held: “* * * [A] defense predicated upon a premature filing of a cause must be raised by a plea in abatement or demurrer, and, if not so raised, the defense is waived.” 229 Or at 130.
*137The word “jurisdiction” was not used. However, a failure to comply with the mandate of the statute, i.e., failure to file a claim with the executor, must not have been considered “jurisdictional” as we have consistently held that a lack of “jurisdiction” cannot be waived.
If failure to observe a statutory mandate can be waived by a pleading lapse, as was held in Fay v. McConnell, supra, it seems overly harsh to cut off a claim under a statute which we are to interpret liberally in favor of the workman although he made a timely compliance with the statutory mandate but alleged the same in what the majority deems to be a clerically incorrect manner.
I realize that the cases cited in the majority opinion state the circuit court has no “jurisdiction” to entertain an appeal from the Commission unless a petition for rehearing has been filed. It does not appear in those cases that any consequence attached to the labeling of the court’s lack of power as a lack of “jurisdiction.” The court could just as well have stated that the statute required the filing of a petition for rehearing as a prerequisite to appeal; this was not done, the Commission timely raised the objection, therefore, the action could not be maintained.
Even if the failure results in a lack of “jurisdiction” in its broadest sense, I cannot conceive of any cause to be served by holding that pleadings filed in a cause in which the court has no “jurisdiction” must be ignored and pleadings alleging compliance with the statutory requirements are completely ineffective because they state they amend or supplement prior pleadings.
Sloan and O’Connell, JJ., join in this dissent.