Kennedy v. Holt

67 S.E. 379, 67 W. Va. 118, 1910 W. Va. LEXIS 11

• Court: West Virginia Supreme Court
• Decided: February 22, 1910
• Status: Published

Opinion

BRANNON, Judge:

An execution was issued by the clerk of the circuit court of Taylor county in favor of Lewis Ritter and Carrie Ritter against William Mallonee, Abraham W. Burdett, Estella Mallonee, James P. Maxwell and James Kennedy for twenty-five dollars and twenty-four cents costs in a certain chancery suit. Kennedy- and Burdett instituted a motion to quash said execution, and the court refused to quash it, and dismissed the motion, and awarded costs against Kennedy and Burdett, and then Kennedy and Burdett applied to this Supreme Court for a writ of prohibition to prohibit the circuit court and Ritters from proceeding to enforce the judgment for costs awarded upon said motion to quash said execution.

We will refuse the prohibition for the reason that it is well settled that a writ of prohibition is purely jurisdictional and will not lie to correct mere error of law, and thus usurp the functions of a writ of error or appeal. Johnston v. Hunter, 50 W. Va. 52. The circuit court plainly had jurisdiction to entertain tbe motion to quash the execution, and if it was wrong it is mere error of law, and prohibition' does not lie. If the amount were over one hundred dollars everybody would say that the only remedy would be writ of error. The fact that a writ of error does not lie. because the. amount of costs does not warrant it, does not give a writ of prohibition. Farnsworth v. B. & O. R. R. Co., 28 W. Va. 815.

Writ Befiised.