Staubach v. Cities Service Oil Co.

• Decision Date: 29 April 1943
• Citation: Staubach v. Cities Service Oil Co., 130 N.J.L. 157, 31 A.2d 804 (N.J. 1943)
• Docket Number: 25
• Court: New Jersey Supreme Court
• Parties: ANNA STAUBACH, APPELLANT, v. CITIES SERVICE OIL COMPANY, RESPONDENT

130 N.J.L. 157

31 A.2d 804

STAUBACH

v.CITIES SERVICE OIL CO.

No. 25.

Court of Errors and Appeals of New Jersey.

April 29, 1943.

Appeal from Supreme Court.

Proceeding under the Workmen's Compensation Act by Anna Staubach, claimant, opposed by the Cities Service Oil Company, employer of claimant's deceased husband. From a judgment of the Supreme Court, 127 N.J.L. 577, 24 A.2d 193, dismissing an order to show cause why a writ of certiorari should not issue to review a judgment dismissing her petition, claimant appeals.

Appeal dismissed.

HEHER, Justice, and RAFFERTY, Judge, dissenting.

1. A refusal by the Supreme Court to allow a writ of certiorari is not a subject for judicial review.

2. The Supreme Court has the inherent right to review by certiorari but its exercise thereof is purely discretionary and remains so even though an appeal, provided by statute, has not been taken.

Julius Kwalick and Joseph Butt, both of Elizabeth (Stanley W. Greenfield, of Elizabeth, of counsel), for appellant.

John W. Taylor, of Newark, for respondent.

THE CHANCELLOR.

This is a workman's compensation cause and the appeal is from a judgment of the Supreme Court dismissing an order to show cause why a writ of certiorari should not issue.

In passing upon the question before us, it is not necessary to detail the facts except as the procedure is disclosed by the record.

The cause was heard in the Bureau May 13, 1940, disposed of there May 24, 1940, by a determination dismissing the petition. Thereafter, on September 26, 1940, the petitioner, appellant here, instituted an action for negligence in the Court of Common Pleas of Union County. The complaint was struck out and upon appeal such action was affirmed by the Supreme Court, Staubach v. Cities Service Oil Co., 126 N.J.L. 479, 19 A.2d 882, the opinion of that Court being delivered May 13, 1941. On November, 1, 1941, an application for a writ of certiorari was made to and a rule to show cause why such writ should not issue was allowed by Mr. Justice Case. The rule to show cause was argued before the Supreme Court and that Court on February 3, 1942, 127 N.J.L. 577, 24 A.2d 193, decided that its writ should not issue and dismissed the rule to show cause; such judgment being entered March 11, 1942.

This appeal therefrom was then taken, the notice and grounds of appeal being filed December 29, 1942.

There was no appeal from the determination of the Bureau to the Common Pleas as provided by Statute, R.S. 34:15-66, N.J.S.A. 34:15-66, and the time within which to do so has long gone by and had when the writ was applied for.

The...