
    Industrial Commission of Ohio v. Murphy.
    
      (Decided September 30, 1931.)
    
      Mr. Gilbert Beltman, attorney general, Mr. B. R. Zurmehly, and Mr. John W. Bolin, prosecuting attorney, for plaintiff in error.
    
      Messrs. Wooley & Rowland, for defendant in error.
   Mattck, P. J.

James Mnrphy was injured in the course of his employment in a mine located near the line dividing Athens and Hocking counties. From the judgment and award of the Industrial Commission he appealed to the court of common pleas of Athens county. In that court he filed a petition detailing the nature of his claims, and to this petition the Industrial Commission filed an answer. Trial was had, resulting in a judgment for the plaintiff. The Industrial Commission prosecutes error from that judgment.

During the trial of the case some exhibits were offered and admitted in evidence which were supposed to have been a part of the record before the Industrial Commission, but which were not in fact before the commission. Their admission was erroneous, but they appear to have been subsequently excluded, and nothing prejudicial to the Industrial Commission resulted.

The more important question is raised as to whether the court of common pleas of Athens county had jurisdiction to entertain the appeal. Section 1465-90, General Code, is the particular section that gives to the court of common pleas jurisdiction in appeals from the Industrial Commission. That section provides for filing an appeal “in the common pleas court of the county wherein the injury was inflicted.” The plaintiff’s petition alleged that Murphy was an employee of the Starr Jackson Mining Company in Athens county, and that he was injured in the course of his employment with that company. There is no further averment of venue. In its original answer the Industrial Commission admitted that the plaintiff was in the employ of the Starr Jackson Mining Company of Athens county. On the day of the trial, a year after suit had been filed, the defendant filed an amended answer in which it admitted that the plaintiff was in the employ of the Starr Jackson Mining Company, hut omitted therefrom the admission in reference to Athens county. On the trial the plaintiff testified that his injury occurred in Athens county, hut the weight of the testimony is that the plaintiff was actually in Hocking county when he sustained the injuries of which he complained. The Industrial Commission sought a nonsuit in the common pleas on the ground that that court had no jurisdiction of the appeal.

In Industrial Commission v. Ware, 8 Ohio App., 460, the Court of Appeals of Hamilton county held that the language of the statute authorizing the filing of an appeal in the common pleas court in the county in which the injury was inflicted was jurisdictional. In that case the injury occurred outside the state of Ohio, and the court determined that, as jurisdiction was only conferred upon the court of the county where the injury was inflicted, no appeal could be prosecuted if the injury was suffered outside the state. The Supreme Court reversed this judgment by journal entry, holding in effect that, although the injury occurred outside the state, the court of common pleas of Hamilton county had jurisdiction of the subject-matter. Ware v. Industrial Commission, 98 Ohio St., 458, 121 N. E., 903. This decision of the Supreme Court was interpreted by the Court of Appeals of Hamilton county to mean that the Supreme Court held that the provisions of Section 1465-90 referred to were of a directory and not mandatory character.

This court is of the view that the phrase in question prescribes the venue of the case, and not the jurisdiction of the court. All courts of common pleas have jurisdiction to review1, on appeal the awards of the Industrial Commission. The venue of a particular appeal is the county in which the injury occurred, if it occurred in Ohio at all. The distinction between jurisdiction and venue is pointed out in Loftus v. Pennsylvania Rd. Co., 107 Ohio St., 352, 140 N. E., 94. The venue of an action can be waived. 27 Ruling Case Law, 783; Southern Ohio Rd. Co. v. Morey, 47 Ohio St., 207, 24 N. E., 269; Klein v. Lust, 110 Ohio St., 197, 143 N. E., 527.

The Industrial Commission made no timely objection to the trial of the case in the county of Athens, rather than in Hocking county, and, by pleading to the merits of the case, waived its right to subsequently raise that question.

Judgment affirmed.

Middleton and Blosser, JJ., concur.  