Butch v. State Compensation Commissioner , 112 W. Va. 493 ( 1932 )

On petition for rebearing:

While the petition for mandamus avers that the objection to the commissioner’s order was made on the 28th day of April, 1932 (within ten days from its entry), the record brought in to support the petition shows that the objection (the long letter referred to in the opinion) was filed with the commissioner on May 3, 1932, more than ten days from the entry of the order. Which would control. In mandamus, the petitioner must show a clear legal right to have performance of the act sought. The petition for rehearing now states the fact to be that the letter containing the protest was actually filed with the commissioner on April 28th. We cannot now consider a different state of facts from what was shown on the submission of the case. That the protest was actually filed on April 28tb, may or may not be controverted. If and when the record is corrected to show the fact now alleged to be true, the relator may have further remedy.