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Skislak v. Continental Mining and Smelting Corp.

Decided: December 6, 1948.

MARY SKISLAK, PROSECUTOR-APPELLANT,
v.
THE CONTINENTAL MINING AND SMELTING CORPORATION, DEFENDANT-RESPONDENT



On appeal from the former Supreme Court, whose opinion is reported in 137 N.J.L. 157.

For reversal: Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling, and Ackerson. For affirmance: None. The opinion of the court was delivered by Oliphant, J.

Oliphant

[1 NJ Page 168] This is a Workmen's Compensation case wherein the dispositive question presented is, did the notice of motion

for a dismissal of the claim petition sufficiently comply with the statutory requirements of R.S. 34:15-54? We think it did not.

Prosecutor-appellant filed a petition with the Workmen's Compensation Bureau on October 21, 1943 seeking recovery of compensation for the death of her husband as a result of an alleged accident while employed by defendant-respondent. An answer was filed and the cause first listed for hearing on December 9, 1943. It was adjourned on four occasions and on February 24, 1944 was marked "No appearance, not moved". It was then carried without any further action until August 23, 1945 when it was marked "Not moved".

The attorney for the defendant then caused to be served, by registered mail, on the then attorney for appellant, a notice of motion to dismiss the petition for lack of prosecution in the following language: "You are hereby notified in accordance with revised statutes of 1937 title 34:15-54, that unless this cause be moved for hearing within one month from the date of this notice, that on November 14, 1946 at 10:00 A.M. * * * I shall apply * * * for an order that your claim be considered abandoned and that the petition be dismissed for lack of prosecution". This notice was dated September 27, 1946 and it was delivered at and receipted for by the office of appellant's attorney on October 2, 1946.

In pursuance to the notice the motion was heard on November 14, 1946. There was no appearance on behalf of appellant. The Referee of the Compensation Bureau ordered a judgment of nolle pros, dismissed the claim petition and entered an order of dismissal.

On application to the Workmen's Compensation Bureau an order was made by a Deputy Commissioner on February 28, 1947 vacating the order dismissing the claim petition, re-entering it for hearing and restoring it to the active list for trial on the merits.

On appeal to the Hudson Pleas this order was vacated and the claim petition again dismissed for lack of prosecution. From this order appellant appealed to the former Supreme

Court by writ of certiorari, which affirmed the judgment of the Hudson Pleas and dismissed the writ.

R.S. 34:15-54 provides

"No petition shall be dismissed for want of prosecution * * * until after notice shall be served by the respondent on the petitioner or his attorney, that unless the cause is moved for hearing within one month from the date of the service thereof, ...


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