County Court v. Holt , 61 W. Va. 154 ( 1906 )

POFFENBARGER, JUDGE:

A mandamus nisi was awarded by this Court, upon the petition of the county court of Taylor county, directed to John Homer Holt, judge of the circuit court of said county, and J. H. Johnson and M. H. Watson, the latter two of whom are partners,, trading as Johnson and Watson, commanding the. said judge either to dismiss the action, pending-in his court, wherein the said Johnson and Watson are plaintiffs and the said county court is defendant, for want of security for costs therein, or to try and dispose of the appeal in said action, taken to his court by the said county court, or that the defendants to said writ appear before this Court and show cause, if any they can,- why a peremptory writ of mandamus shall not be awarded, to compel the said judge to dismiss said action or hear and determine the same as aforesaid.

Johnson and Watson had brought an action, against said county court, before a justice of the peace of said county, for the recovery of an account, amounting to $33.25, for stationery furnished, by .them to said county court. After some preliminary proceedings, amendment of the return of the summons, the overruling of a motion to quash, and the requirement of .security for costs, the case was heard by the justice, and the defendant, upon the hearing, set up, as a defense to the action, an order which it had spread upon its records, relating to the púrchase of stationery, in violation of which, it was alleged, the contract for these supplies had been made by the .clerk of the circuit court of said county. After judgment had been rendered by the justice, an appeal was taken to the circuit court by A. Armstrong, a member of the county court. In the circuit court, a motion to dismiss the appeal was made on the ground that it had not been taken by the county court, and no appeal bond had been given. At the same time, the defendants suggested the non-residence of the plaintiffs and demanded security for costs. Later, the parties again appeared and a copy of an order made by the county court was filed, dated several months after the appeal had been taken, approving the. action of Armstrong, claiming the benefit of the appeal and asking the circuit court to entertain and try the action. On the same day the motion to dismiss the appeal was renewed and the court sustained it and dismissed the appeal as having been improvidently awarded.

The case was submitted to this Court upon a demurrer to the alternative writ of mcmdamus and a motion to quash thé same. No ground is perceived upon which the proceeding-can be sustained. It is against the judge of a court of general jurisdiction, clothed with full judicial power,’ and its object is to undo, or correct, a fully completed act, performed by him in term as judge of said court. In a legal sense, it was not his act as judge, but the act of the court. The dismissal of the appeal was the exercise ' of judicial, not ministerial, power. In determining whether or not the court would sustain the motion and dismiss it, it was necessary to consider ■and conclude whether or not a county court, a corporation ■capable of suing and being sued, could maintain an appeal without having given bond, and, whether it could ratify, and take the benefit of, an appeal which it had not ordered. The determination of these questions clearly involves the performance of a judicial function. The defendant was entitled to an appeal as a matter of right, upon compliance with the statutory conditions precedent. That the circuit court did not deny. Nor did it deny its own jurisdiction to hear and determine the action. It did not refuse to act in the premises. Had it done so, mandamus would have been granted upon application therefor to compel it to do so. Wheeling &c Co. v. Paul, 39 W. Va. 148; Cowan v. Doddridge, 22 Grat. 458; Page v. Clopton, 30 Grat. 415. But whether these conditions had been complied with was a matter ’ calling for judicial inquiry and determination, and upon that the court acted. By its decision the case went out' of court, but the nature of the act done is not determined by its result or consequence. The motion to dismiss presented questions for consideration and judgment, similar to those arising on pleas in abatement and motions to quash process and returns thereon endorsed. Though such pleas and motions relate to the jurisdiction of the court, erroneous decisions made on them are never regarded as refusals on the part of the court to take cognizance of the actions in which they are rendered, even though the consequence is dismissal. To award a mandamus to reinstate a case so dismissed would make it virtually a writ of error to that extent. It can never be so employed, nor is it ever awarded to control or direct how discretionary or judicial power shall be exercised. Its sole office, as regards tribunals or officers exercising such powers, is to compel them to act, when they refuse to do so, not to prer' scribe in what manner they shall act, or remedy errors they have committed. Miller v. County Court, 34 W. Va. 285; State v, County Court, 33 W. Va. 589; State v. Herrald, 36 W. Va. 721; Marcum v. Commissioners, 42 W. Va. 263.

Application of these principles to the case in hand, renders it necessary to quash the alternative writ and adjudge ■costs against the plaintiff therein.

Writ Refused.