King v. W. Electric Co.

• Decision Date: 29 March 1940
• Citation: 12 A.2d 151,18 N.J.Misc. 199
• Parties: KING v. WESTERN ELECTRIC CO. (two cases).
• Court: New Jersey Court of Common Pleas

12 A.2d 151

18 N.J.Misc. 199

KING

v. WESTERN ELECTRIC CO. (two cases).

Court of Common Pleas of New Jersey, Essex County.

March 29, 1940.

Separate applications by Robert E. King and by Anna Rose King against Western Electric Company for the allowance of counsel fees for proceedings taken before the Supreme Court and the Court of Errors and Appeals.

Orders in accordance with opinion.

Congleton & McLaughlin, of Newark (Richard J. Congleton, of Newark), for petitioner.

Edwin J. O'Brien, of Newark (Shelton Pitney, of Newark, of counsel), for respondent.

HARTSHORNE, Justice.

This is an application under the statute for the allowance of counsel fees in both the above cases, for proceedings taken therein before the Supreme Court and the Court of Errors and Appeals. R.S. II, 34:15-67, N.J.S.A. 34:15-67. "These unusual provisions for the lower court to allow counsel fees for work done in the upper courts, can apply only within the statutory limits. These limits are 'where the judgment of the Court of Common Pleas is reviewed'" in compensation cases on certiorari in the upper courts. [Fischman v. Joseph Fish Hat Co., Essex Common Pleas, May 16, 1939, unreported; affirmed New Jersey Supreme Court, February 23, 1940, unreported.]

Since, in the Anna King case, the Common Pleas was in no wise involved, the above statute is inapplicable and no counsel fees are allowable here, as counsel for the employee admits.

As to the Robert King case, the certiorari proceedings covered both the record in the Bureau and that at the Pleas. Before the Bureau, the points involved were whether the employee's petition was filed within time, whether a previous order made the matter res judicata, and whether a compromise agreement was finally dispositive. In the Pleas, on the other hand, the decision was simply that the Pleas lacked jurisdiction, since the appeal was from a preliminary order, not from a final decision on the merits.

That the certiorari proceedings were considered by all concerned to be a review of the action of the Bureau in passing upon the above grounds, and not a review of "the judgment of the Court of Common Pleas" that it had no jurisdiction, is evident. For the opinion of the Supreme Court, on certiorari, whose judgment was in the Court of Errors and Appeals "affirmed for the reasons expressed in the opinion delivered by Mr. Justice Heher in the Supreme Court," deals solely and entirely with the above grounds of the Bureau's action, and not at all with...