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Cole v. Brunswick Leather Goods Corp.

New Jersey Superior Court, Appellate Division


Decided: January 26, 1949.

FLORA SHEPHARD COLE, PETITIONER-APPELLANT,
v.
BRUNSWICK LEATHER GOODS CORPORATION, RESPONDENT-DEFENDANT

On application for writ of certiorari.

McGeehan, Donges and Colie. The opinion of the court was delivered by Colie, J.A.D.

Colie

[1 NJSuper Page 191] This matter is before the court by the service upon attorneys of respondent on June 29, 1948 of a notice "that on Tuesday, the 5th day of October, 1948 * * * we shall apply to the Supreme Court of New Jersey, Part Two, * * * for a Writ of Certiorari to review the Order of Affirmance filed in the above entitled cause on the 12th day of March, 1947, by the Common Pleas Court of Middlesex County, in the appeal from the Determination of Facts and

[1 NJSuper Page 192]

Rule for Judgment of the Workmen's Compensation Bureau of New Jersey, made on the 7th day of March, 1946."

We note the fact that the notice is returnable on a date subsequent to September 15, 1948 before Part Two of the former Supreme Court which ceased to exist on the date last mentioned. We also note the fact that there is no power in an Appellate Division of the Superior Court to allow a writ of certiorari or to initiate any procedure in lieu of prerogative writs. Cf. Rule 3:81-1 et seq.

The judgment sought to be reviewed was entered on March 12, 1947. No application for a writ of certiorari was made either to a single Justice of the former Supreme Court or to the Court en banc. We take judicial notice of the fact that a single Justice was available up to September 15, 1948 and that the Supreme Court en banc was available at the May Term 1948 and three terms prior thereto for that purpose.

R.S. 2:81-2 provides that "No writ of certiorari shall be allowed to review any judgment, order or proceeding entered or obtained in any court of record unless it is issued within eighteen months after the entering or obtaining the same or within such other time as is specifically provided by law." Under this statute, the right to review depends upon the issuance of a writ of certiorari within eighteen months after the entering of the judgment below, which, in this case, would be on or before September 12, 1948. The right to review was lost when no writ of certiorari issued within the said period. The change in the court system as of September 15, 1948 gave no new life to any right of review that had expired before that date.

Application denied with costs.

19490126


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