A counsel fee may not be awarded in the Court of Common Pleas under R.S. 34:15-67 to counsel who prevails in opposition to the allowance of certiorari to review a judgment in a workmen's compensation case.
The opinion of the court was delivered by BODINE, J.
This is a workmen's compensation case. Frank Von Volkum recovered compensation in the Bureau. The award was affirmed in the Court of Common Pleas. The employer then applied to a single justice for certiorari. This was denied. The application renewed before the court was likewise denied. The employee's counsel then sought and received a counsel fee in the Common Pleas Court for resisting the application for certiorari in the Supreme Court.
The pertinent statute is R.S. 34:15-67 as follows: "In cases where the judgment of the court of common pleas is reviewed by the supreme court by certiorari, the court of common pleas may allow a reasonable attorney fee to the party prevailing on the certiorari for his services on the certiorari, which fee shall be taxed in the costs and become a part of the final judgment in the cause, and may be recovered against the unsuccessful party." The italics ours. The fees are to counsel prevailing on certiorari and not to counsel who succeeds in opposing the issuance of the writ.
Before the writ issues there can be no review. The refusal of allocatur is a denial of review. Since there is no review no one can prevail in the review. Changes in statutes, however desirable, must be made by the legislature and not by the courts.
The judgment of the Court of Common Pleas is reversed, with costs.