On appeal from the Supreme Court.
For the petitioner-respondent, Nathan Finkle.
For the respondent-appellant, Samuel D. Lenox.
The opinion of the court was delivered by
HAGUE, J. This is an appeal from a judgment of the Supreme Court in a compensation case. An original claim petition was filed on July 23d, 1932, and determined in the
bureau on January 6th, 1933, wherein an award was made to petitioner. In May, 1934, a second petition was filed claiming increased disability. The matter was not heard and determined until August 4th, 1937. Compensation for increased disability was awarded. The Common Pleas Court of Mercer county, on appeal, affirmed the determination of the bureau. A rule to show cause why certiorari should not be allowed was granted on June 16th, 1939. The rule was discharged by the Supreme Court. The facts need not here be set out or considered.
It is true that the parties stipulated in the return and argument of the rule to show cause "that argument should proceed as though a writ had been granted * * * to the end that the court may proceed to determine the matter on the merits of the case." The court did determine the matter on the merits and the holder of the rule to show cause for certiorari, not being successful in setting aside the judgment of the Pleas, appeals to this court.
The Supreme Court, in its opinion, stated that the rule should be discharged. The remittitur, notwithstanding that the rule was ordered discharged, affirmed the judgment of the Pleas. However that may be, this appeal does not lie. The action of the Supreme Court, in discharging the rule, amounted to a refusal of the writ or as was said in the case of Ford Motor Co. v. Fernandez, 114 N.J.L. 202, 203, "the vacation of a fictitious allocatur." In either case appeal does not lie. Frazier Co. v. Long Beach, 110 Id. 221; Post v. Anderson, 111 Id. 303.
For dismissal -- THE CHANCELLOR, CHIEF JUSTICE, CASE, HEHER, PORTER, DEAR, WELLS, WOLFSKEIL, ...