REVIEW OF COMMON PLEAS BY CERTIORARI. 231 REVIEW OF COMMON PLEAS BY CERTIORARI. OUTLINE OF PRACTICE. The remedy employed to obtain a review of the judgment of the Common Pleas in a workmen's compensation case is Writ of Certiorari. An exhaustive treatment of this important writ would be beyond the scope intended by this work. The comment on the practice as to certiorari will be confined to a brief outline. The application for the writ is made to the Justice of the Supreme Court who sits in the county where the judgment was rendered. As the rules of the Supreme Court forbid the issuance of the writ except on affidavit or other sufficient proof (Sup. Ct. Rule 168) the first step to be taken by the attorney for the aggrieved litigant is the preparation of an affidavit setting forth all the facts forming the basis upon which the writ of certiorari will be asked. By Certiorari Act, 1 Comp. Stat., page 403, sec. 4, the Justice instead of allowing a writ may if he desires allow a rule to show cause, when the writ is applied for. Accordingly such a rule should be drafted. (A form will be found on page 226). And of course a writ should be drafted. (Form on page 227). Strictly speaking these are all the papers necessary for the application. By Comp. Stat. 403, sec. 5 and Sup. Ct. Rule 165, "Reasons" for reversal must be filed within 10 days after the return of the writ unless the court allows further time. It is usual however to prepare these before the application for the writ to review a compensation proceeding as the Justice frequently desires to see the exact form of the reasons to be urged. A skeleton form for "Reasons" appears on page 228. Thus prepared with affidavit, draft of rule to show cause, draft of writ and reasons the application is made. No notice to the other side is necessary. If upon such application the writ is allowed the Justice will sign the allocatur (the endorsement: "The within writ is allowed. Let it be sealed.") The writ is then sent to the Clerk of the Supreme Court at Trenton for "testing" which means affixing the seal of the court and signing. Upon getting the writ back from the Clerk it is served upon the parties to whom di rected. Such service may be made by anybody in any manner which gives the parties addressed notice of the issuance of the writ and its requirements. If a rule to show cause is allowed it is served upon the opposing party, notice of taking depositions in accordance with the rules of the court is given (the affidavit proof filed at the time of application being inadmissible at the argument of the rule to show cause) the depositions are taken and upon the day specified by the rule (called return day) the argument takes place unless a continuance is granted. If the writ is allowed and the rule made absolute or the rule discharged and the writ not allowed the same course thereafter follows as if the writ had been allowed or refused in the first instance and without the intermediate steps attending rule to show cause. If the Justice upon the application refuses both writ and rule to show cause, or after having allowed rule to show cause refuses a writ, an application for a writ can be made to Part II of the Supreme Court (made up of 3 Justices). If allowed there the same subsequent procedure follows as if allowed by the single Justice to whom application had been made. If the three Justices refuse the writ the action of the Common Pleas should be abided by without further ado as the granting of the writ is discretionary. The return to the writ when allowed is made up by the parties addressed but as the plaintiff in certiorari or prosecutor as he is sometimes called must see that the return is brought up to the Supreme Court, he should see to it that the parties addressed Imake the return. The writ having been allowed, return made and reasons filed the argument of the writ may be brought on before a Justice at chambers on 5 days' notice of either party given within 15 days from the filing of reasons. If such notice be not given the case must be brought on at the next term of the Supreme Court in Part II unless further time is allowed (Sup. Ct. Rule 166). To bring the case on before Part II notice of argument for the first day of the term is given to the other party at least 10 days before the opening of the term and copy of such notice filed with the Clerk of the court at least 4 days before such opening. (Sup. Ct. Rule 150.) REVIEW OF COMMON PLEAS BY CERTIORARI. 233 On argument before the Supreme Court State of Caşe and Points must be prepared and served as per Rules 155 and 156 of Supreme Court, or the argument will not be heard. (Sup. Ct. Rule 154.) The argument is governed by Rules 157, 158 and 159 of Supreme Court. Upon the handing down of opinion the successful party prepares a rule of affirmance and remittitur or a rule of reversal and remittitur depending of course upon whether the Common Pleas is affirmed or reversed (for forms, see pages 229, 230). If either party is not satisfied with the decision of the Supreme Court appeal may be taken to the Court of Errors and Appeals in accordance with the usual practice governing appeals from Supreme Court. Index. REFERENCES ARE TO PAGES. ABATEMENT OF SUIT BY DEATH. ABOLITION OF DEFENSES.. ACCEPTANCE OF SECTION II. Effect of Presumed if no contrary notice given... ACCELERATION OF DISEASE..... ACCIDENT. (See Table of Contents notes under Paragraph 7 of Work- men's Compensation Act in every case.) Acceleration of disease is. Defined and explained.. Assaults Burden of proof.. Death by preferred to suicide claim.. ACCIDENT ARISING OUT OF AND IN THE COURSE (See Table of Contents notes under paragraph 7 of Work- ACTION. Whether workmen's compensation proceeding is.. Who included Partial Dependent is included. Presumption as to dependency. PAGE 94 42 43 10, 104 10 9 26 105 12 .68, 73 to 77 incl. 73, 74 68 19 ADDED RISK ADMINISTRATOR OR EXECUTOR. Workman's agreement for Section II. binding upon.. ADMIRALTY JURISDICTION OF FEDERAL COURTS. Effect on compensation matters... ADMISSION BY PAYMENT OF COMPENSATION........ 47 102 |