The opinion
On Rehearing.
SWINDALL, J.
On the 19th day of September, 1933, this court filed its opinion, de
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livered by Mr. Justice Busby, in tbe above-styled cause. Tbis opinion is supplemental to tbe original and is entered for tbe purpose of clarifying an issue raised by tbe petition for rebearing. We will state only sucb facts as are necessary to tbe present treatment.
It appears that petitioner, Union Indemnity Company, was surety on a supersedeas bond used by employer and insurance carrier for tbe purpose of obtaining a review of an award of tbe State Industrial Commission in favor of Monroe Saling, claimant before tbe Commission, for temporary total disability, and executed and conditioned as required by section 13363, O. S. 1931. Tbe award was affirmed by tbis court, and thereafter the Commission discharged the surety, Union Indemnity Company. About a year later, on motion of claimant, tbe Commission made an award to him for permanent total disability. At tbe same time it made an order against tbe Union Indemnity Company binding it to pay tbe sums due claimant on account of bis permanent total disability to the extent of tbe maximum set in tbe bond. This order was entered on March 23, 1932. No pleading sought tbe order, tbe Union Indemnify Company was not notified of tbe bearing, and no copy of tbe order was sent to it. On April 21, 1932, petitioner filed a motion before tbe Commission to vacate tbis order. On June 17, 1932, tbe Commission entered its order overruling tbe motion. Tbe present proceeding to review was instituted in tbis court on July 15, 1932.
In tbe cases of Sandoma Petroleum Co. v. Tow, 90 Okla. 276 , 217 P. 412 , Knowles v. Whitehead Oil Co., 121 Okla. 55 , 247 P. 653 , and Oklahoma Pipe Line Co. v. State Industrial Commission, 149 Okla. 162 , 299 P. 180 , this court held that a petition to review must be filed in this court within 30 days after notice of an award has been sent to the parties affected, and that tbe time cannot be extended by filing a petition to rehear before tbe Commission. Tbe original opinion in this ease bolds, and we think correctly, that tbe purpose of tbe law is to advise tbe parties affected by an award of tbe fact that it has been made and of the nature and effect thereof, and that, therefore, when tbe motion to vacate tbe award of March 28, 1932, was filed in the present case on April 21, 1932, tbe purposes of tbe notice were served and tbe time began to run. The original opinion further bolds that tbe award of March 23, 1932, was in excess of the Commission’s jurisdiction, and void, and that tbe “rules defining and declaring tbe time within which an award may be vacated by tbe Industrial Commission and limiting tbe time within which proceedings may be instituted in tbis court to review tbe same, * * * have no application to an order which is wholly void. * * *” It passes upon tbe validity of tbe Commission’s award without more clearly showing bow tbis court obtained jurisdiction. Respondent contends, in effect, that if the 30 days’ time within which to file a petition for review began to run on April 21, 1932, and tbe motion then filed to vacate did not have tbe effect of extending tbe time, no proceeding was instituted in tbis court within tbe time required to give tbis court jurisdiction of the cause, whether tbe award was void or not. Tbis is tbe point which we think needs clarification.
It will be noted that tbe petition to review was instituted within 30 days after tbe Commission entered its order overruling petitioner’s motion to vacate. If that motion was an authorized and proper proceeding before tbe Commission for tbe purpose of striking and setting aside its award of March 28, 1932, then it was itself, together with tbe issues raised therein, subject to review in tbis court. It is apparent from tbe cases cited above that therein tbe Commission passed upon and adjudicated tbe issues sought to be reviewed. When tbe Commission has done so, its award, under those decisions, becomes final unless review is commenced within tbe 30-day period, and no proceeding is provided for in tbe Workmen’s Compensation Law whereby sucb time may be extended. However, these decisions must be taken in connection with tbe decisions of tbis court construing section 13391, O. S. 1931, dealing with tbe continuing jurisdiction of tbe Commission.
In tbe cases of Sun Coal Co. v. State Industrial Commission, 84 Okla. 164 , 203 P. 1042 , and United States Fidelity & Casualty Co. v. Harrison, 125 Okla. 90 , 256 P. 752 , this court held that where an award is made for one injury, a further award can be made for an independent injury arising out of the same accident without a change in conditions. Tbe same authority exists where tbe Commission makes an award for temporary disability and later determines permanent disability. Thompson v. State Industrial Commission, 138 Okla. 166 , 280 P. 597 ; Geis Price Grain Co. v. Bailey, 155 Okla. 302 , 9 P. (2d) 424 . In Southern Drilling Co. v. Daley, 166 Okla. 33 , 25 P. (2d) 1082 , we showed that physical condition
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is finally adjudicated only so far as it is tlien subject to adjudication.
From these cases it is apparent that the State Industrial Commission is invested with jurisdiction of a cause before it continuing so long as an issue relevant thereto remains to be adjudicated, but when an issue is adjudicated, that particular matter, and that only, together with all matters necessarily adjudicated thereby, becomes final following the 30-day period provided in the act, and thereafter the Commission is without jurisdiction to change its holding on that issue.
The foregoing cases, however, deal with causes within the jurisdiction of the Commission and action unquestionably authorized. In Tulsa Terminal, Storage & Transfer Co. v. Thomas, 162 Okla. 5 , 18 P. (2d) 891 , and Rorabaugh-Brown Dry Goods Co. v. Matthews, 162 Okla. 283 , 20 P. (2d) 141 , the court passed upon the question where the Commission was without authority to make its first award. It was held that certain jurisdictional facts, to wit, those required by the act to bring the cause thereunder, •must be asserted and not denied or proved and found, and such must appear, before the Commission, a body of limited jurisdiction, acquires the power to act finally; that, in the absence of a specific adjudication of these jurisdictional facts, the Commission is not authorized to enter a final award. It was further held that this issue of jurisdiction could be raised before the Commission at any time unless such issue had been previously adjudicated. Thus, we are of the opinion that the Commission may, by virtue of its continuing jurisdiction, at any time entertain a proceeding attacking its jurisdiction. If the jurisdictional question was subject to be and was adjudicated formerly, then the Commission upon determining those issues must dismiss the proceeding; if it was not formerly adjudicated, the Commission must pass upon it. Some matters of law or fact may be so clearly beyond the jurisdiction of the Commission that it has not even the power to adjudicate the question, or certain action may be so clearly unauthorized that any step in that direction is without legal sanction. In such a case as this, if the Commission has taken such action, we think it is authorized to entertain a proceeding to set aside and vacate the same, on the ground that it was without power to adjudicate the issue over which it asserted authority, and that therefore its adjudication cannot become final. No proceeding to review need be commenced within 30 days, the lack of jurisdiction may be asserted at any time, and the order made thereon is subject to review in this court.
In the case at bar we observe that the order entered by the Commission may be void upon several grounds, but do not feel it necessary to go beyond the ground specified in the original opinion. The order was without authority and void, the Commission was authorized to entertain a proceeding to vacate it at any time, and its determination thereon is reviewable in this court. We, therefore, hold that the original opinion, as supplemented hereby, is correct, and the petition for rehearing should be and is denied.
RILEY, C. X, OULLISON, V. C. X, and ANDREWS, McNEILL, OSBORN, and BUSBY, JX, concur. BAYLESS and WELCH, JJ., absent.