
    Jo M. FERGUSON (Formerly, V. E. Barnes), Commissioner of Economic Security, etc., Appellant, v. James GARLAND, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.
    
      Paul E. Tierney, Forest Smith, Clarence E. Powell, Kentucky Unemployment Insurance Commission, Frankfort, for appellant.
    Earl L. Cole, Cole & Cole, Barbourville, for appellee.
   WADDILL, Commissioner.

The Commissioner of Economic Security of Kentucky has appealed from a judgment which directed the Division of Public Assistance to grant appellee, James Garland, public assistance.

Garland, a resident of Knox County, filed an application seeking public assistance in the form of aid for his dependent, needy child and grandchild under the provisions of KRS, Chapter 205. Applicant claimed that he was physically incapacitated to the extent that he could not provide for his dependents a subsistence compatible with decency and health.

The Division of Public Assistance found that Garland was not incapacitated and rejected his claim. An appeal was taken, and after a hearing a referee of the Division decided that Garland was not entitled to public assistance. Thereupon he filed a “petition for review” in the Knox Circuit Court asking a reversal of the “decision”, a copy of which was filed as an exhibit with the petition for review.

The Division moved for dismissal on the ground that Garland had failed to exhaust the administrative remedies provided by KRS, Chapter 205 before filing his petition for review in the circuit court. The court overruled the motion because counsel representing the Division had failed to take timely depositions in support of its motion for which leave had been granted by the court pursuant to the Division’s request. Since we have concluded that the court should have sustained the Division’s motion to dismiss, it is unnecessary to relate the further proceedings in the circuit court.

The petition for review indicates that Garland sought a review in the circuit court, not from the decision of the appeal board, but from the decision of a referee of the Division. This is made certain by the exhibit which was annexed to the petition. Foshee v. Daoust Construction Co., C.A. 7, (1950) 185 F.2d 23.

An applicant who is dissatisfied with the decision on his application for public assistance is provided with an appeal to the appeal board by KRS 205.230(2). An appeal to the circuit court from the decision of the appeal board is provided by KRS 205.230(3). Since the appeal was not perfected pursuant to the latter statute, the Knox Circuit Court was without jurisdiction, and therefore erred in failing to sustain appellant’s motion to dismiss Garland’s petition for review. See Roberts v. Watts, Ky., 258 S.W.2d 513.

The judgment is reversed, with directions to set it aside and to enter an ordér dismissing the petition.  