
    John W. YOUNG, Commissioner of Labor, etc., Appellant, v. Russell HOWARD et al., Appellees.
    Court of Appeals of Kentucky.
    June 4, 1971.
    Martin Glazer, Dept, of Labor, Frankfort, Gemma M. Harding, Dept, of Labor, Louisville, for appellant.
    Kelsey Friend, Clyde Mullins, Pikeville, for Russell Howard.
    Maxwell P. Barret, Hazard, for Elkhorn Jellico Coal Co.
   CLAY, Commissioner.

In this workmen’s compensation case the appellant’s “Petition for review-appeal” was dismissed by the circuit court on the ground that it was not timely filed. Appellant contends this was error, and makes a plausible argument in support thereof. The appellee employee admits “for the sake of argument” that appellant’s position on this point may be correct. If so, that ends this appeal.

The parties in their briefs argue at length the merits of the controversy. The merits were never considered by the circuit court and are not before us. Since the employee declines to defend the circuit court’s order of dismissal, and it appears to have been erroneous, we are impelled to reverse the judgment.

The judgment is reversed.

All concur.  