Noah Sheets seeks a writ prohibiting Bascum Ray, a justice of the peace of Cabell county, and L. B. Wiley, a constable, from collecting a certain judgment, in the sum of $100.00, rendered against him by said justice in favor of John D. McColum, on February 13, 1931.
An appeal was awarded petitioner on February 21, 1931, upon the filing of a bond in the penal sum of $200.00, and the transcript, together with said bond, transmitted to the clerk of the common pleas court of Cabell county, some time after June 10, 1931. On the last mentioned date, an act of the legislature (Acts 1931, chapter 35) became effective, by virtue of which the clerk of said court was directed to charge
and collect certain fees, in advance, from the parties for whom such services were to be rendered — the fee provided in appeals from justices being $5.00, and payable by the appellant. The petitioner has never advanced the fee. Some time prior to May 20, 1932, the clerk returned the papers to the justice. On the 20th of May, 1932, the justice, at the instance of the plaintiff, issued an execution on said judgment, and a second execution on November 10, 1932; hence this proceeding.
Upon the perfecting of the appeal (February 21, 1931) the judgment was vacated, and the justice divested of any further jurisdiction over the case. Gorrell v. Willis, 54 W. Va. 78,46 S.E. 139; Watson v. Hurry, 47 W. Va. 809, 35 S.E. 830; Evans v.Taylor, 28 W. Va. 184, L.R.A. 1917B, 423n. So, there being nothing before the justice upon which to predicate an execution, the writ prayed for will issue.
Whether the clerk of the common pleas court may require the petitioner herein to advance the docket fee provided for by chapter 35, Acts 1931, before docketing his appeal, or whether compliance with the aforesaid statute is now a necessary prerequisite to the perfection of an appeal from a justice's judgment, are questions which do not arise in this proceeding.
Writ awarded.