#### Gough, Appellant, vs. Industrial Commission of Wisconsin and others, Respondents.

*April 7*

June *12, 1917.*

*’Workmen’s compensation: 'Action to review award: Jurisdiction of circuit court: Strict compliance with statute: “Adverse party" to he made defendant.*

1. Strict compliance with the requirements of sec. 2394 — 19, Stats., is necessary to give the circuit court jurisdiction of an action to review an award made by the industrial commission under the Workmen’s Compensation Act.

2. Thus, unless the summons and complaint is served upon an adverse party within the twenty days limited by said section, the circuit court has no jurisdiction to proceed in any action which would necessarily affect the rights of such adverse party.

3. Where the industrial commission wholly disallowed the claim of the widow of an employee who was accidentally killed, and awarded compensation to his mother instead, the mother was an adverse party to the widow within the meaning of sec. 2394 — 19, Stats., their claims being conflicting.

*633Appeax from a judgment of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge.

*Affirmed.*

Tbe appeal is from a judgment affirming an award of tbe *Industrial Gommission*in favor of defendant *Mrs’. Thomas Gough.*

One John Gougb was accidentally killed while in tbe employ of tbe *Flanner-Steger Land & Lumber Company.*Tbe plaintiff, widow *oí*said John Gougb, made application for compensation before tbe *Industrial Gommission;*bis mother, *Mrs. Thomas Gough,*also filed her claim. For tbe convenience of all tbe parties'the two applications were beard, at tbe same time and both claimants appeared and testified, and *Mrs. Thomas Gough*was cross-examined by tbe plaintiff’s counsel.

The *Gommission*made findings to tbe effect that deceased bad contributed during tbe last years oí bis life to tbe support of bis mother; that plaintiff and John Gougb never lived together as husband and wife subsequent to tbe marriage, and tbe evidence discloses that be bad deserted and expressed an intention to never live with her and bad paid but $10 to her support and that of their child from tbe time of their marriage in December, 1912, to bis death March 3, 1916; and an award was made disallowing the claim of tbe plaintiff entirely and awarding compensation to tbe mother, *Mrs. Thomas Gough.*

In June, 1916, and within tbe twenty days from tbe entry of tbe award, tbe plaintiff commenced an action in tbe circuit court for Dane county making tbe *Industrial Gommission*and tbe *Flanner-Steger Land & Lumber Company,*tbe employer, parties. Subsequently demurrers were interposed by these defendants raising tbe question as to tbe omission to make *Mrs. Thomas Gough*a party. Tbe demurrers being overruled, the then defendants and plaintiff stipulated that an amended summons and complaint making *Mrs. Thomas Gough*a party might be served, and tbe same was served upon *634ber on October 20, 1916. She appeared in said action and by answer 'raised tbe question of tbe jurisdiction of tbe court, on tbe ground that summons and complaint bad not been served upon ber as an adverse party witbin tbe twenty days after tbe entry of tbe award by tbe *Commission.*By amended answers tbe *Flanner-Steger Land & Lumber Company*and tbe *Commission*raised tbe same question as to jurisdiction. Tbe circuit court overruled tbe objections as to tbe jurisdiction and confirmed tbe award of tbe Commission, and from tbe judgment entered in accordance therewith tbe plaintiff appeals.

*L. M. Nelson*of Marinette, attorney, and *M. J. Doyle*of Menominee, Michigan, of counsel, for tbe appellant.

Eor tbe respondent *Industrial Commission*there was a brief by tbe *Attorney General*and *Winfield W. Gilman,*assistant attorney general, and oral argument by *Mr. Gilman.*

Tbe following opinion was filed April 24, 1911:

Eschweiler, J.

If tbe objection interposed by tbe defendants to tbe jurisdiction of tbe circuit court on tbe ground that *Mrs. Thomas*Gough, as an adverse party, was not served with summons and complaint witbin tbe twenty days from the date of tbe award to ber by tbe *Industrial Commission*is well taken, it disposes of this action, and tbe questions raised by the plaintiff as to whether or not she was so dependent upon tbe deceased as to entitle ber to compensation need not be considered.

Tbe material part of sec. 2394 — -19, Stats., is as follows:

> “The findings of fact made by tbe commission acting witb-in its powers shall, in the absence of fraud, be conclusive; and tbe order or award, whether judgment has been entered thereon or not, shall be subject to review only in tbe manner and upon tbe grounds following: Within twenty days from tbe date of the order or award, any party aggrieved thereby may commence, in the circuit court for Dane county, an action against the commission for tbe review of such order or award, *635in which action the adverse party shall also be made defendant.”

Among the evident purposes of the Workmen’s Compensation Act was to provide for a speedy disposition of the vast number of claims for injuries arising in the industrial world and to prevent, as far as possible, delays that might arise from protracted litigation. It is therefore provided hy this statute that the period within which any party aggrieved by a decision of the *Industrial Commission*must, exercise the right therein given of having a review of the same is limited to twenty days from the date of the order or award, and the *Industrial Commission*and the adverse party must be made defendants in such proceedings. Erom the evident purpose of the act and the stringent language used in this statute so hedging in the right to review, we hold that unless the person feeling aggrieved by the order or award of the *Commission*pursues its dictates closely, the circuit court obtains no jurisdiction to review such order or award.

The plaintiff by her original complaint herein recited the proceedings before the *Commission,*which show the appearance of *Mrs. Thomas*Gough, the fact that the award was made to her instead of to plaintiff, and then demanded that the award should be set aside and judgment be entered in favor of plaintiff, thus showing full knowledge1 on her part of the position that *Mrs. Thomas Gough*occupied. Now, therefore, if *Mrs. Thomas Gough,*to whom an award was made on account of the death of John Gough, was such an adverse party to the plaintiff as is described in this statute, then the failure within the twenty days to commence the action against her gave the circuit court no jurisdiction to proceed.

To now find in favor of plaintiff would necessarily require the setting aside of the award in favor of the mother, *Mrs. Thomas Gough.*It is evident that an award to the mother could not he permitted to stand if an award should properly have been made to the widow. The rights, if any, therefore, *636of the widow would necessarily be adverse to those of the mother, if any. The mother, *Mrs. Thomas*Gough, must therefore be held to be an adverse party within the meaning of the statute as well as the defendant employer, and, there having been no service upon the mother of the summons and complaint within the time fixed by the statute, the circuit court had' no jurisdiction to proceed in any action which would necessarily affect her rights. *Hammond-Chandler L. Co. v. Industrial Comm.*163 Wis. 596, 158 N. W. 292. The objections interposed to the jurisdiction of the circuit court should therefore have been sustained and the action dismissed.

The result of this decision is in effect to affirm the judgment of the circuit court so far as it confirmed the award of the *Industrial*Commission, even though it is upon another ground than that taken by the circuit court in its decision, and even though the circuit court should have dismissed the proceedings for want of jurisdiction, inasmuch as that would have necessarily restored the award of the *Commission*to its full effect.

*By the Court.*— The judgment of the circuit court is affirmed, no costs to be taxed by any party.

A motion for a rehearing was denied, without costs, on June 12, 1917.