75 W. Va. 368 | W. Va. | 1914
Joseph. I. Doran makes original application’ to this court for the writ of mandamus to- compel W. W. Whyte, clerk of the county court of McDowell county,'to execute to him a tax deed for certain lands in said county, alleged to have been purchased by him at a sheriff’s delinquent tax sale made on the 9th day of December, 1912-, for non-payment of taxes assessed thereon in the year 1910, and not redeemed. An alternative writ was issued, which respondent moved to quash and to which he also demurred and made return. The demurrer, as well as the motion to-quash, raises the question of jurisdiction, in this particular case, to issue the writ. Is this a proper case for the writ? We think not. Sec. 22, Ch. 31, Code 1913, provides a speedy remedy whereby a tax-purchaser may compel the clerk to make him a deed when he has improperly refused to do so. He-may apply by petition to the circuit court, or the judge thereof in vacation, after ten days previous notice in writing to the clerk: and the statute says: “If upon the hearing of such application, the court or judge be of the opinion that the applicant is not entitled to such deed, the petition shall be dismissed at his iosts; but if the court or judge be of the opinion that he is entitled to such deed, an order shall be made by such court or judge directing the same to be made and acknowledged for record by such clerk, or a commissioner may be appointed for the purpose, as the court or judge shall determine. The order, if made in vacation, shall be filed with the clerk of the court and entered by him in the chancery order book thereof.” The remedy given by this statute is as complete, speedy and equally as efficacious as mandamus; and being so, it tabes the place of mandamus. The rule is that mandamus does not lie if the relator has another remedy which is just as efficacious. State ex rel. v. County Court, 33 W. Va. 589; Ex parte Goolsby, 2 Grat. 575; King William Justices v. Munday, 2 Leigh 165. The rule has "been recognized and approved in the following cases also: Lowther v. Davis, 33 W. Va. 134; Miller v. County Court, 34 W. Va. 289; and Eureka Pipe Line Co.
We, therefore, deny the writ without prejudice.
Writ refused.