
    The State, ex rel. Davidson, v. Industrial Commission of Ohio.
    
      Workmen’s compensation — Rehearing after adverse ruling on appeal to common pleas court — Jurisdiction of Industrial Commission — During pendency of appeal and after judgment.
    
    1. There is no duty specially enjoined by law on the Industrial Commission to rebear an application for compensation after an appeal from its adverse ruling to the court of common pleas has been prosecuted and heard.
    2. The Industrial Commission has no jurisdiction over applications for compensation .that have been appealed to the court of common pleas while such appeal is pending, and no jurisdiction after judgment except to carry the judgment into execution.
    (No. 18512
    Decided May 19, 1925.)
    In Mandamus.
    The relator in her amended petition avers that she is the widow of Robert Davidson, deceased; that Robert Davidson was injured on December 15, 1916, in the course of his employment with the Uhler-Phillips Company; that the Uhler-Phillips Company had at that time paid premium into the state insurance fund; that as. a result of such injuries Robert Davidson died January 27, 1917; that on the 24th day of February, 1917, she filed an application for an award for compensation from the state insurance fund on account of the death of her husband; that on March 23, 1917, the application was denied on the ground that she was not dependent on the decedent within the meaning of the Workmen’s 'Compensation Act; that the action of the Industrial Commission in denying her application was based upon the fact that she was not living with the decedent at the time of his decease, nor for some period prior thereto, and that he was not supporting her; that she appealed from the action of the Industrial Commission to the common pleas court of Marion county; that the case was heard before that court and a jury; that the jury returned a verdict for the defendant; that an entry was placed upon the journal of the court setting forth the verdict, but no judgment entry was entered upon the journal; that a motion for a new trial was filed within three days; that no entry appears, upon the journal overruling such motion; and that the appearance docket shows the motion to have been overruled.
    
      
       Mandamus, 26 Cyc. p. 162;  Workmen’s Compensation Acts. C. J. §§ 123 (1926 Anno), 131 (1926 Anno).
    
      The amended petition further avers that the verdict was brought about by the adoption by the trial court of the rule of law governing dependency followed by the Industrial Commission prior to the decision of this court in the case of Industrial Commission v. Dell, Ex’x., 104 Ohio St., 389, 135 N. E., 669, 34 A. L. R., 422; that the Industrial Commission has granted rehearings in cases in which it had applied an erroneous rule of law after thirty days had expired; that subdivision (b) of rule 22 of the Industrial Commission, governing procedure in claims against the fund, provides that, when more than thirty days have elapsed between the date of the original hearing and the date the application for a rehearing is filed, the “'Commission will fix the time and place for hearing the application for rehearing, notifying the claimant and employer thereof, and upon the hearing of the application for rehearing, if it appears to the Commission that substantial justice has not been done to the interested parties, a rehearing will be granted and claimant and employer will be notified of the time and place of such rehearing,” and that if, upon hearing said application for rehearing, the ‘ ‘ Commission is of the opinion that substantial justice was done, at the original hearing, the application for rehearing will be denied;” that, acting under the “precedent” and “rule,” she, on January 15, 1924, filed an application for a rehearing of her claim, on the ground that “under the facts and the foregoing decision of this court she was entitled to an award of compensation on account of the said death of her husband, which arose out of and occurred in the course of his employment and that substantial justice had not been done her on the original hearing because of the mistaken theory followed by defendant that she was not ■ dependent upon her said husband”; and that on March 3, 1924, the Industrial Commission denied the application for the rehearing on the ground that defendant was without jurisdiction because the cause had been appealed to and decided by the common pleas court of Marion county.
    The prayer is “that a writ of mandamus may issue, commanding defendant to consider and allow said application for rehearing and entertain jurisdiction to hear said application for award under the rules of law announced by this court as. applicable to. said cause. ’ ’
    
      Messrs. Booth, Keating, Pomerene & Boulger, and Messrs. Taylor & Scott, for plaintiff.
    
      Mr. C. C. Crabbe, attorney general, and Mr. R. R. Zurmehly, for defendant.
   Robinson, J.

This is an original action in this court to compel the Industrial Commission of Ohio to consider and allow the application of the relator for a rehearing of an application filed by her and disallowed by the Industrial Commission more than six years prior to the filing of the application for rehearing, from which disallowance an appeal had been prosecuted to the common pleas court of Marion county, which appeal had been heard by that court and jury, and a verdict rendered and

The Legislature of Ohio has seen fit to define the writ of mandamus and to provide when it shall issue. Section 12283, General Code, provides:

“Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

No claim is made here that any statutory duty is enjoined upon the Industrial Commission to grant a rehearing in this case, but it is claimed that the Industrial Commission has imposed upon itself the duty of granting such rehearing by the adoption of subdivision (b) of rule 2'2, where this language is used, “if it appears to the Commission that substantial justice has not been done to the interested parties.” But the petition fails to state that the Commission made any such finding, but avers the finding of the 'Commission to have been that it “denied said application for a rehearing solely on the ground that defendant was without jurisdiction because said cause had been appealed to and decided by the aforesaid common pleas court of Marion county.”

Granting, as we do, that the rules adopted by the Industrial Commission have upon it the force and effect of law until annulled by the Commission, or by this court, the relator has not averred a, finding by the Industrial Commission that substantial justice has not been done, essential, under the rule, to enjoin upon the Commission the duty to grant the rehearing. This court in a mandamus suit might well rest its decision upon that ground alone, but, since the Commission made the affirmative finding that it was without jurisdiction in this matter, the parties hereto are entitled to the judgment of this court upon that subject.

That the jurisdiction was transferred from the Industrial Commission to the court of common pleas of Marion county by the appeal is necessarily conceded. Having been transferred to the courts by the appeal, by what process did the courts lose that jurisdiction?

The statute (Section 1465-90, General Code) provides:

“Any final judgment so obtained shall be paid by the Industrial Commission of Ohio out of the state insurance fund in the same manner as such .awards are paid by such Commission.”

Upon final judgment in favor of the claimant, jurisdiction is by law reoonferred upon the Industrial Commission to carry such judgment into execution, but we know of no provision for a review of the judgment of a court by the Industrial Commission; such judgment being subject to review only upon error in a higher court.

It is true in this case that the judgment of the court of common pleas was never journalized, and technically the case is probably still pending in that court. That fact, however, is not significant, since the verdict of the jury was against the relator here, and the only statutory provision for the reinvesting, of the Industrial Commission with jurisdiction is where the claimant recovers a judgment.

The amended petition does not state facts which create a duty specially enjoined by law upon the Industrial Commission to rehear the application of the relator for compensation. The demurrer to the amended petition is therefore sustained.

Demurrer sustained.

Jones, Matthias and Kinkade, JJ., concur.  