90 W. Va. 19 | W. Va. | 1922
Petitioner asks for a writ of prohibition against the Judge of the Circuit Court of Taylor County, the sheriff of that county and Cora B. Welsh, to prevent the collection of an execution now in. the hands of the sheriff, issued on a judgment for costs in favor of Cora B. Welsh and against petitioner, rendered by said circuit court on the .... day of February, 1921. Neither of the respondents named have appeared, and no defense is made.
Petitioner alleges that he sought and obtained a writ of habeas corpus ad subjiciendum against Cora B. Welsh, his wife, from the Circuit Court of Taylor County in February, 1921, commanding her to bring into that court two of his children, who as he charged, were unlawfully detained by her from him; that upon a hearing had upon the produc
The question for decision raised by the petition is whether the court excéeded its authority and jurisdiction in pronouncing a judgment against him for more than $10.00 in addition to the costs in that proceeding.
The statute provides that there shall be included in the costs to the - party prevailing, “in an action at law, not less than two and one-half nor more than ten dollars, as the court may prescribe.” Sec. 13, chap. 138, Code, 1918. Costs are purely statutory; none were allowed at common law; and this court has uniformly held that prohibition will lie to judgments for costs not authorized by some statutory enactment. Ringer v. Morris, 82 W. Va. 492; Warren v. Herndon, 81 W. Va. 574; W. Va. Central Gas Co. v. Holt, Judge, 66 W. Va. 516; Bice v. Telephone Co., 62 W. Va. 521; Wilkinson v. Hoke, 39 W. Va. 403. Also see West v. Ferguson, 16 Gratt 270. The court exceeded its legitimate powers in rendering a judgment against petitioner for more than $10.00 in addition to the costs, and where a court exceeds its legitimate powers, although it has jurisdiction of the subject matter, a writ of prohibition will lie as a matter of right; determined not by the amount in controversy, but by the excess of power.
All of the judgment for costs having been paid except that portion thereof which the court had no power to pronounce, we award the writ, but without recovery of costs in this court against the respondents.
Writ awarded.