The opinion
It is my view that the motion for rehearing should be granted and the cause remanded. There is no evidence that a claim for compensation was ever filed with the Industrial Accident Board, unless the recitals in the award are sufficient evidence of that fact. It seems to me that, if the recitals in the award are sufficient to prove that prerequisite, they could be made sufficient to prove all other jurisdictional prerequisites, such as notice of injury, etc. The appeal is a direct attack, and challenges, among other things, the trial court's jurisdiction. Since the decision in Mingus v. Wadley, 115 Tex. 551 , 285 S.W. 1084 , 1087 , it has been the settled law in this state that one of the jurisdictional facts necessary to be proved in the trial court in an appeal from an award of the Industrial Accident Board is, "That proper application for compensation on account of the injury alleged to have been received was made to the Industrial Accident Board." I cannot agree that this requirement was met by the mere recitals in the award.
In Head v. Texas State Bank, 16 S.W.2d 298 , we held that in an appeal from a judgment by default in the district court a recital in the judgment that the defendant was "duly cited" was not a showing of the jurisdiction of that court to render a judgment against him. This holding was required by an unbroken line of decisions, some of which were cited in our opinion. There is less reason, it seems to me, for permitting recitals in an award by the Industrial Accident Board to supply jurisdictional facts than there is for permitting recitals in a judgment of the district court to do so.
I therefore respectfully enter my dissent.