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Sturdivant v. General Brass & Machine Corp.

Decided: June 18, 1971.

EVELYN STEPHANIE STURDIVANT, PETITIONER-RESPONDENT,
v.
GENERAL BRASS & MACHINE CORP., RESPONDENT-APPELLANT. BELLA STURDIVANT, PETITIONER-RESPONDENT, V. GENERAL BRASS & MACHINE CORP., RESPONDENT-APPELLANT



Kilkenny, Halpern and Lane. The opinion of the court was delivered by Halpern, J.A.D.

Halpern

This is a consolidated dependency action under the Workmen's Compensation Act, N.J.S.A. 34:15-7 et seq. , brought by the widow and mother of John Wesley Sturdivant who on February 20, 1967 suffered a fatal heart attack while working at respondent's plant.

The judge of compensation, and the County Court on appeal, determined that decedent's death resulted from a compensable accident which arose out of and during the course of his employment. On July 17, 1970 a judgment was entered

in favor of both petitioners awarding compensation benefits to them, the amounts of which are not in dispute.

Prior to the formal entry of judgment on July 17, 1970 respondent's counsel wrote to petitioner's counsel on June 16, 1970 as follows:

We are in receipt of Judge DiBuono's opinion affirming the judgment of the Division of Workmen's Compensation in the above captioned matter.

Please forward an Order for Judgment for our consent. Upon the signing and filing of same, you may forward us warrants to satisfy judgment and we will see that the same are paid.

In due course warrants for satisfaction of the July 17, 1970 judgment were mailed to respondent's counsel, who filed them with the Union County Clerk by July 27, 1970. Presumably, respondent's insurance carrier had mailed checks to respondent's counsel in full payment of the judgments for delivery to counsel for petitioners. However, before the checks were delivered to counsel for petitioners, a synopsis of the opinion in Walck v. Johns-Manville Products Corp. , 56 N.J. 533 (1970) appeared in the August 20, 1970 issue of the New Jersey Law Journal (93 N.J.L.J. 603). On August 25, 1970 respondent's counsel wrote petitioners' counsel that in their opinion Walck represented a change in the decisional law in heart cases, and they intended to appeal. A notice of appeal was filed the following day August 26, 1970.

On September 14, 1970 respondent moved before Judge DiBuono to get back the warrants for satisfaction of judgment previously filed. The basis of the motion was that the warrants were "'inadvertently filed." The motion was granted on September 25, 1970. While the record contains only a notice of cross-appeal by the decedent's widow of the September 25, 1970 order, we will proceed on the basis that both petitioners have cross-appealed.

We have recited the foregoing undisputed procedural history because we have determined that the County Court was without jurisdiction to make the September 25, 1970 order,

and that the judgments should be paid. In so doing, we do not reach the ...


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