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DEPENDENTS OF WOODROW WILSON TOWNSEND v. DYER WOODTURNINGS

NOVEMBER 07, 1984

DEPENDENTS OF WOODROW WILSON TOWNSEND
v.
DYER WOODTURNINGS, INC. and LUMBERMEN'S UNDERWRITING ALLIANCE



BEFORE ROY NOBLE LEE, DAN LEE and SULLIVAN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

The dependents of Woodrow Wilson Townsend have appealed from an order of the Circuit Court, First Judicial District, Chickasaw County, dismissing this cause from the docket of that court. They have assigned two (2) errors in the lower court, but we discuss only the assignment of whether or not the lower court erred in dismissing the cause, which is dispositive of the case, and we affirm.

On March 31, 1983, the Mississippi Workmen's Compensation Commission entered an order denying death benefits to the claimants. On April 29, 1983, the claimants filed with the Circuit Clerk for the First Judicial District, Chickasaw County, a" Petition for Judicial Review "attempting to appeal from the Commission order. No notice of appeal was filed with the Secretary of the Commission within thirty (30) days of the date of the Commission order. Subsequently, claimants filed an" Application for Deviation from Rule "with

 the Commission to permit a deviation from Procedural Rule 11 for the reason that the rule changes the requirement of the state statute and the strict compliance with said rule under the facts of the case would tend to deprive the claimants of a substantial right. On September 13, 1983, the lower court entered an order dismissing the cause from its docket, sua sponte, on the ground that an order entered by the Commission on July 14, 1983, disposed of the cause. *fn1

 The simple question presented to the Court is whether or not the claimants timely and properly perfected an appeal from the Commission order to the circuit court and whether that court erred in dismissing the attempted appeal from its docket.

 Mississippi Code Annotated 71-3-51 (1972), in part, provides the following:

 The final award of the Commission shall be conclusive and binding unless either party to the controversy shall, within thirty (30) days from the date of its filing in the office of the Commission and notification to the parties, appeal therefrom to the circuit court of the county in which the injury occurred.

 Such appeal may be taken by filing notice of appeal with the commission, whereupon the commission shall under its certificate transmit to the circuit court of the county where the injury occurred all documents and papers on file in the matter, together with a transcript of the evidence, the findings, and award, which shall thereupon become the record of the cause. . . . Appeals may be taken from the circuit court to the Supreme Court in the manner as now required by law.

 The Commission adopted Procedural Rule 11 following the statute, pertinent parts of which follow:

 APPEAL FROM COMMISSION AWARD. Should either party desire to appeal from an award of the commission, the party desiring to appeal shall within thirty days of the date of the award file a notice of appeal with the secretary of the commission. The notice shall set out the style of the case, the grounds upon which the appeal is taken, certification that copies of the motion of appeal have been filed with the opposing parties.

 When a motion for appeal to the Circuit Court is filed with the commission the secretary shall, with a proper letter of transmittal, place the matters possessed by this commission and pertaining to the appealed case in the hands of the Circuit Court within seven days after such notice for appeal is received by the commission. . . .

 It is undisputed that the claimants failed to comply with the statute and with Procedural Rule 11 and they have only attempted to relieve themselves by asking for a deviation from the Rule 11, citing Commission Rule 14, which states:

 In any case, for good cause shown, the commission or the administrative judge may permit deviations from these rules insofar as compliance therewith may be ...


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