The opinion
RAY, Justice,
concurring.
I concur that appellant, The Standard Fire Insurance Company, failed to timely file its petition with the district clerk of Dallas County. However, I dissent relative to that portion of the opinion which states that appellee was not entitled to the statutory twelve percent (12%) penalty and reasonable attorney’s fees. The facts in the instant case are analogous to those in Texas Employers’ Ins. Ass’n v. Nunamaker, 278 S.W. 889 (Tex.Civ.App. Dallas 1925, no writ). There, the insurer filed its suit in the Dallas County Court at Law to set aside the final ruling and decision of the Industrial Accident Board. The Dallas County Court at Law sustained a plea to its jurisdiction urged by Nunamaker and dismissed the suit. The insurer appealed and the trial court’s ruling was affirmed by the court of civil appeals. The Supreme Court subsequently denied an application for writ of error. Pending the appeal of the jurisdictional question, Nunamaker instituted suit for the amount of the award plus interest and penalties for the failure of the insurer to comply with the final order of the Board. The trial court granted Nunamaker a judgment for the compensation awarded him by the final order of the Industrial Accident Board, together with a twelve percent (12%) penalty and reasonable attorney’s fees. The Court of Civil Appeals at Dallas affirmed.
In the instant case, the insurer filed his petition to set aside the award of the Industrial Accident Board one day too late. Thus, the district court never acquired jurisdiction of the insurer’s cause of action. In Nunamaker, supra, the County Court at Law did not have the power or authority to rule on appeals from the Industrial Accident Board, and thus, never acquired jurisdiction of the cause of action. In the present case, while the district court has the power and authority to hear and decide appeals from awards of the Industrial Accident Board, it nevertheless never acquired jurisdiction of the appeal because it was filed too late. Thus, the District Court of Dallas County was without power or authority to decide the appeal and could only decide that it did not have jurisdiction to hear the appeal. In both Nunamaker and the present case, the insurer failed to comply with the final order of the Industrial Accident Board. In both cases the workers filed suit to recover the award, plus interest, penalties and attorney’s fees. In Nuna-maker, the court stated:
“Appellant contends that the judgment for 12 per cent, damages and attorney’s fee is erroneous. The proposition urged is that this suit could not lie upon the order of the Industrial Accident Board for the recovery of the award with penalties and attorney’s fee, unless the appel *806 lant had failed and refused to obey and comply with this order, or failed to bring suit to set same aside. Appellant insists that it complied with the statute, in that it filed a suit in the county court at law of Dallas county to set aside the final ruling and decision of the board, and, although this court was without jurisdiction, that the final adjudication of that fact was not reached until the Supreme Court overruled its motion for rehearing on March 18, 1925, after which time appellant claims that it tendered to appel-lees the amount of the award.
“In this connection appellant makes the further contention that this suit, instituted on January 10, 1925, was prematurely brought and should have been abated on the motion urged by it for that purpose, for the reason that it was brought pending the appeal of the suit instituted to set aside the award of the board, and that, until the Supreme Court finally acted on its motion for rehearing, the decision of the board was in suspense and was deprived of that finality of character necessary to support this action.”
The Dallas Court of Civil Appeals did not adopt the view of the insurer and held that it was the duty of the insurer to either pay to the workman the amount of compensation awarded by the final decision of the Board, or bring suit in a court of competent jurisdiction to set the same aside and that since the insurer did neither, it was not entitled to be shielded from the imposition of penalties for its failure to obey the final decision of the Industrial Accident Board. In the instant case, I am of the opinion that Appellee LaCoke was entitled to receive the twelve percent (12%) penalty and attorney’s fees as provided by Article 8307, Sec. 5a, Tex.Rev.Civ.Stat.Ann., when the insurer failed to comply with the award of the Board and failed to timely bring suit to set aside the award of the Board.