51 W. Va. 91 | W. Va. | 1902
As will appear from State v. King, 47 W. Va. 437, in the year 1894 the State of West Virginia brought a chancery suit against Henry C. King and others in the circuit court of Wyoming County, which was afterwards removed to the circuit court of Logan County, and still later to the circuit court of Cabell County, having for its object the sale of that part lying in this State of a tract of five hundred thousand acres of land patented
At the threshhold the question comes up, Does a writ of prohibition lie now, or must King wait until he is aggrieved by ac'tual decree, and then have recourse to the ordinary appeal? King’s theory to maintain prohibition is that this Court by its decree held, as a finality, that he had right to redeem such parts of the land as he should specify superior to any others before the court; that though he had named in his answer long ago those new parties, and suggested that they should be parties, the court proceeded without making them parties, and that though it was assigned as-error on the appeal that they had not been made parties, this Court did not adjudge that they were necessary parties, but by silence as to them impliedly decreed that they need not be parties; that the circuit court could not make them parties, or entertain or pass upon their rights, or do anything further in the case as to King than to ascertain and receive the amount of money proper for the redemption of the lands which he wished to redeem; in a word, could only execute the decree of this Court. On the contrary the State contends that it is proper and necessary under chapter 105 of the Code of 1899 that these new parties should be before the court, and that their
Another reason against granting the writ is that King heretofore, upon a petition setting up substantially the same case as now, except that he had not then made his selection of lands for redemption, was, on full consideration by this Court, denied the writ; but I do not deem it necessary to enlarge upon this feature, as it involves no legal principles necessary to be stated, as indeed this present case does not for like reason really call for an opinion. Therefore we refuse the writ of prohibition.
Writ Denied.