61 W. Va. 154 | W. Va. | 1906
A mandamus nisi was awarded by this Court, upon the petition of the county court of Taylor county, directed to John Homer Holt, judge of the circuit court of said county, and J. H. Johnson and M. H. Watson, the latter two of whom are partners,, trading as Johnson and Watson, commanding the. said judge either to dismiss the action, pending-in his court, wherein the said Johnson and Watson are plaintiffs and the said county court is defendant, for want of security for costs therein, or to try and dispose of the appeal in said action, taken to his court by the said county court, or that the defendants to said writ appear before this Court and show cause, if any they can,- why a peremp
Johnson and Watson had brought an action, against said county court, before a justice of the peace of said county, for the recovery of an account, amounting to $33.25, for stationery furnished, by .them to said county court. After some preliminary proceedings, amendment of the return of the summons, the overruling of a motion to quash, and the requirement of .security for costs, the case was heard by the justice, and the defendant, upon the hearing, set up, as a defense to the action, an order which it had spread upon its records, relating to the púrchase of stationery, in violation of which, it was alleged, the contract for these supplies had been made by the .clerk of the circuit court of said county. After judgment had been rendered by the justice, an appeal was taken to the circuit court by A. Armstrong, a member of the county court. In the circuit court, a motion to dismiss the appeal was made on the ground that it had not been taken by the county court, and no appeal bond had been given. At the same time, the defendants suggested the non-residence of the plaintiffs and demanded security for costs. Later, the parties again appeared and a copy of an order made by the county court was filed, dated several months after the appeal had been taken, approving the. action of Armstrong, claiming the benefit of the appeal and asking the circuit court to entertain and try the action. On the same day the motion to dismiss the appeal was renewed and the court sustained it and dismissed the appeal as having been improvidently awarded.
The case was submitted to this Court upon a demurrer to the alternative writ of mcmdamus and a motion to quash thé same. No ground is perceived upon which the proceeding-can be sustained. It is against the judge of a court of general jurisdiction, clothed with full judicial power,’ and its object is to undo, or correct, a fully completed act, performed by him in term as judge of said court. In a legal sense, it was not his act as judge, but the act of the court. The dismissal of the appeal was the exercise ' of judicial, not ministerial, power. In determining whether or not the court would sustain the motion and dismiss it, it was necessary to consider
Application of these principles to the case in hand, renders it necessary to quash the alternative writ and adjudge ■costs against the plaintiff therein.
Writ Refused.