Ford Motor Co. v. Fernandez

• Decision Date: 10 January 1935
• Docket Number: No. 122.,122.
• Citation: 176 A. 152
• Parties: FORD MOTOR CO. v. FERNANDEZ et al.
• Court: New Jersey Supreme Court

176 A. 152

FORD MOTOR CO.

v. FERNANDEZ et al.

No. 122.

Court of Errors and Appeals of New Jersey.

Jan. 10, 1935.

Syllabus by the Court.

1. The Supreme Court, on return of a rule to show cause why certiorari should not issue, heard the whole matter, by agreement with counsel, as though a writ had issued, and decided accordingly. Appeal was taken without formal issue and return of a writ, based on the papers submitted under the rule to show cause. Held, that the appeal must be dismissed for want of a proper record.

2. Where the judgment of the Supreme Court in certiorari is supported by a substantial basis of testimony, the Court of Errors and Appeals will not review the facts.

3. Standard Water Systems Co. v. Ort, 110 N. J. Law, 586, 166 A. 335, explained.

Appeal from Supreme Court.

Proceedings under the Workmen's Compensation Act by Hilario Fernandez, employee, opposed by the Ford Motor Company, employer. On appeal from an order of the Workmen's Compensation Bureau denying employee's petition for additional compensation for permanent disability, the Court of Common Pleas granted award for total permanent disability. The Supreme Court, on rule to show cause why certiorari should not issue, affirmed the award (174 A. 223, 12 N. J. Misc. 653), and the employer appeals.

Appeal dismissed.

Herbert R. Baer, of Newark, for appellant.

David Roskein, of Newark, for respondents.

PARKER, Justice.

At the outset we are confronted by an anomaly in procedure. The case was argued before us as though a writ of certiorari had been allowed by the Supreme Court, issued and returned, argument regularly had thereon, and judgment entered. The printed book shows a different state of things. There was a rule to show cause why such a writ should not issue, such rule returnable before the court in banc, and argued at the May term, 1934. As may be read in the opinion of the Supreme Court, counsel agreed at the argument, and with the consent of the court, that the controversy be considered and decided as if a writ had issued in due course, and the matter "proceed to judgment accordingly." The court thereupon decided the whole controversy on the merits, and concluded by saying: "In accordance with the agreement of counsel, a writ of certiorari will be considered as issued, and the judgment of this court is that the judgment brought up by the writ of certiorari will be affirmed, with costs." The rule entered on this opinion reads in the deciding part: "It is ordered, that the writ of certiorari will be considered as issued and dismissed with costs, and that the judgment brought up by the said writ will be affirmed in favor of the petitioner-respondent, and the record be remanded to the court below to be proceeded with according to law and the practice of said court." Apparently, this rule was entered on the opinion by the attorney for the prevailing party, as no signature of a justice of the court appears thereon, and none was needed under the circumstances.

We have before us, therefore, for review, a rule as for "judgment" based on a non-existent writ of certiorari. So far as relates to the hearing and determination of the whole merit of the controversy, by the Supreme Court, no criticism is here intended, as the practice has much to commend it in saving lost motion and in speed of final decision. But when that decision has been rendered, and an unsuccessful party seeks a review, it is his duty to see that the reviewing court has a record, in certiorari, as in any other case, on which to proceed. Strictly speaking, the situation here presented amounts to little, if anything, more than a discharge of the rule to show cause after hearing the merits...