Sharff v. TostiSharff v. Tosti
The opinion of the court was delivered by
This is аn appeal from an order of the court of chancery allowing a counsel fee of $500 to complainants for services rendered in an appeal in this court in the above entitlеd cause.
The situation was this: The appeal was decided, and the opinion filed in this court on May 18th, 1931 (108 N. J. Eq. *398 270), affirming the decree of the court of chancery in favor of the complainants. No aрplication was made to this court, by the complainants for a counsel fee in this court. After remittitur to the court of chancery, аnd on June 16th, 1931,. the complainants applied to Vice-Chancеllor Church for a counsel fee for services rendered in this court in the appeal,, and on his advice an allowance of $500 was made, to be paid by the unsuccessful appellants in this court. The present appeal questions the legality of that order upon the ground' that “no application for counsel fee was made to the court of errors and appeals and nо' reason shown why it was not made.” We think that ground is well taken, and we havе' not considered the question whether the present ease is-within thе class in which a counsel fee can properly be' awаrded for services in this court, which question is not raised nor argued.
The rule respecting counsel fees in the court of errors and appeals, so far as concerns this situation, was laid down by this court in Weeks v. Lister, 62 N. J. Eq. 813, thus:
“Thе application for counsel fees should first be made in this court. If the court then passes on it the decision is final, but if the court doеs not pass on it, or if through mere' inadvertence the application is not made while the case is before this- court, then aftеr the remittitur, the court of chancery has jurisdiction to grant counsel fеes * * * in the court of errors and appeals upon a proper case being presented in these respects.”
Thereby it is seen that the application “should first be made in this court.” That was not done in the present case It is also seen that “if through mere inadvertence the application for counsel feеs is not made while the case is before this court, then after the remittitur, the court of chancery has jurisdiction.”
Nоw in the present case the petition does not aver that “thrоugh mere inadvertence” the application (for counsel fee) was not made while the case was before this court, nor was that otherwise made to appear to the court оf chancery.
In these circumstances, and under the rule stated, the *399 court of chancery was without jurisdiction or pоwer to make such order for counsel fee. The rule of the Weeks Gase was not modified by the case of Sobel v. Sobel, 100 N. J. Eq. 532, fоr in the latter case the application was first made to this сourt and no action was there taken thereon.
No doubt the rеason for requiring a showing that it was not by design that the applicatiоn was not made to this court was to reasonably enforce the rule that the application “should be first made in this court” which is desirable because of this court’s knowledge of the factors beаring upon the propriety of the allowance of a counsel fee in this court, and of the amount thereof, if one is allowеd, in the given ease.
The order awarding the counsel fee under review will be reversed.
For affirmance — None.
For reversal — The Chief-Justice, Tkenchabd, Paekek, Campbell, Lloyd, Case, Bodine, Van Buskiek, Kays, Hetfield, Deae, Wells, Keeney, JJ. 13.