DISSENTING OPINION. As appears from the majority opinion, this case was reassigned. It was originally assigned to me, and I wrote an opinion, with the concurrence of the other judges of this court, dismissing the appeal. The opinion was afterwards withdrawn, as plaintiff, on motion for rehearing, showed "good cause" for his failure to file transcript on appeal in time. The case was again assigned to me, and as it had been briefed and argued, I wrote an opinion affirming the action of the Circuit Court of Newton County in dismissing the appeal, because the appeal was not timely filed there. With this opinion the majority of the court disagreed. I am of the same opinion still.
It appears from the stipulation entered into before the Referee, Honorable Francis M. Kinder, on February 10, 1943, that everyone knew that the alleged accident occurrer in that part of the city of Joplin, which is in Newton County, and hence that, under the provisions of Section 3732, Revised Statutes Missouri 1939, the Circuit Court of Newton County only would have jurisdiction of any appeal from the final award of the Workmen's Compensation Commission. The stipulation then entered into did not purport to go any further than the hearing before the Referee. The Referee and the attorneys *Page 1155 for both sides then knew that the alleged accident occurred in Newton County, and the Workmen's Compensation Commission, if it read the record, knew that the Circuit Court of Newton Countyalone had jurisdiction of any appeal taken by claimant from its final award.
The Commission affirmed the award of the Referee on November 5, 1943, and appeal from the final award of the Commission was taken by claimant on November 8, 1943. The attorneys for claimant, with full knowledge that the Circuit Court of Jasper County had no jurisdiction, asked the Commission to send the papers to Jasper County. Section 3732, Revised Statutes Missouri, 1939, provides that the award of the Commission shall be final and binding "unless either party to the dispute shall within 30 days from the date of the final award appeal to the circuit court of the county in which the accident occurred." . . . (Emphasis mine.)
The part of said section, quoted in the majority opinion, merely tells how such "party to the dispute" shall go about it to appeal. I think it is still the duty of the Commission to award appeal to the circuit court of the county where the accident occurred, and that it is still the duty of claimant to see that his appeal is sent to the proper county. [Downing v. Lashot, 201 Mo. App. 75.] The Commission could not free itself of blame, in granting the appeal, by sending it to a county where counsel for claimant erroneously asked that such appeal be sent.
Claimant could have mandamused the Commission to send it to the right county, as the majority opinion concedes. Claimant had until December 3, 1943, to mandamus the Commission to send the appeal to the proper county. This claimant did not do, evidently because it had not then occurred to counsel for claimant that the appeal had been awarded to the wrong county.
Counsel for claimant, with full knowledge that the alleged accident occurred in Newton County, slept on his rights until the September Term, 1944, of the Circuit Court of Jasper County, when the Judge of that Court, or someone, realized that the Circuit Court of Jasper County, where the alleged accident did not occur, had no jurisdiction of the case and that court sent it back to the Commission.
Then the Workmen's Compensation Commission, over a year after it made its final award, realizing that it was then too late to grant an appeal itself to the proper county, merely made the order on November 17, 1944, correcting its records and advising the Circuit Court of Newton County that "an appeal having been taken in the foregoing matter" certified to that court that certain documents were "herewith returned to the court, as provided by law.
I do not know why the Commission said: "as provided by law." The law does not so provide. The Commission had no power to certify anything to the Circuit Court of Newton County, unless an appeal "by either party to the dispute" was taken within 30days *Page 1156 from the date of the final award of the Commission. It will be noted that the Commission did not certify that an appeal had been properly taken. It merely undertook, at the suggestion of claimant's counsel, to strike out the word "Jasper", in the application for appeal, and to insert the word "Newton", in lieu thereof. Counsel for claimant, in a letter of November 4, 1944, acknowledged his mistake and merely asked the Commission as follows:
"The Commission, therefore, should now forward the files to the Circuit Court of Newton County, Missouri, and inasmuch as we inadvertently inserted in the blank form of appeal, the word `Jasper' instead of the word `Newton', we ask the Commission to amend our application for appeal by striking out the word `Jasper', and inserting therein the word `Newton', before the files are forwarded to the Newton County Circuit Court."
I do not think an appeal can be taken in any such manner, and that, as it was more than thirty days after the date of the final award of the Commission before the documents were certified to the Circuit Court of Newton County, and received by that court, the circuit court of that county properly dismissed the appeal, because it was not timely filed in that court, or taken from the final award of the Workmen's Compensation Commission.
I agree with the majority opinion that the order made in the Circuit Court of Newton County was an appealable order and that respondents' motion to dismiss the appeal, made in this court on that ground, should be overruled. Neither are we concerned on this appeal with the merits of claimant's case. We cannot pass on any matter that the Circuit Court of Newton County did not decide.
The majority opinion cites the provisions of section 3754, Revised Statutes 1939. The Commission, at the instigation of claimant's counsel, did not substantially comply with the provisions of Chapter 29, Revised Statutes Missouri 1939, when it sent the appeal, taken by claimant, to a county where the alleged accident did not occur. I do not think it is at all "technical" for this court to insist that the provisions of section 3732, Revised Statutes 1939, for taking an appeal from the Workmen's Compensation Commission to the circuit court, be complied with. It will be time enough to hold that an appeal, sent to the wrong county, is effective, when the Legislature so provides.
Appeals were not known to common law, but are solely creatures of statute. The final award of the Commission, like the judgment of a circuit court, is binding upon a litigant, unless an appeal is taken in obedience to a statutory provision. In holding that an appeal was properly taken to the Circuit Court of Newton County, Missouri, the opinion of the majority, in my judgment, is in direct conflict with and contrary to the following case of the Supreme Court, to-wit: *Page 1157 Stephens v. D.M. Oberman Mfg. Co., 334 Mo. 1078,70 S.W.2d 899, and cases cited therein; and other cases too numerous to mention.
The majority opinion is also in direct conflict with and contrary to decisions of the Supreme Court and the several Courts of Appeals, in holding that the record made in the Workmen's Compensation Commission could be amended, at the suggestion of claimant's counsel, after more than thirty days, by merely having the Commission correct its records and send the documents and other papers to the Circuit Court of Newton County. It has always been the duty of an appellant to see that the appeal which he had previously taken was properly taken. [Downing v. Lashot,201 Mo. App. 75, and cases from the Supreme Court therein cited.]
We cannot by mere construction, in the name of liberalism, wipe out the plain provisions of the Legislature in section 3732, Revised Statutes Missouri 1939.
It, therefore, becomes my duty, as a member of the Springfield Court of Appeals, not only to dissent from the majority opinion of this court, but also to certify this case to the Supreme Court of Missouri, as provided in Section 10, Article V, of the Constitution of Missouri.