State ex rel. Smoleski v. County Court of Hancock County

166 S.E.2d 783, 153 W. Va. 33, 1969 W. Va. LEXIS 156

• Court: West Virginia Supreme Court
• Decided: March 28, 1969
• Docket: No. 12817
• Status: Published

Opinion

Browning, Judge:

On application of the relator this Court issued a rule to show cause why a writ of prohibition should not be awarded against the respondents prohibiting them from further action with regard to a certain prohibition proceeding pending in the Circuit Court of Hancock County. The petition alleges that on March 13, 1969, this Court issued a rule in mandamus in the companion case of State ex rel. Smoleski v. County Court, etc., 153 W. Va. 21 166 S. E.2d 777; that such rule was served on all of the respondents except the respondent Judge Kalph E. Pryor; that on the morning of March 14 with full knowledge of the rule issued by this Court, counsel for the respondent Patrick appeared before the respondent Pryor and obtained a show cause order in a prohibition proceeding involving the same issue pending before this Court in the mandamus proceeding; and concludes with the prayer that a writ of prohibition be issued prohibiting all of the respondents from enforcing the show cause order of the Circuit Court of Hancock County of March 14, 1969. This Court issued a rule to show cause why the writ should not issue as prayed for, returnable before this Court on March 18, 1969, and suspended further proceedings in the Hancock County Circuit Court. In response to the rule the respondent Patrick appeared and filed his plea in abatement, demurrer, answer and motion to dismiss the rule on the ground that it was improvidently awarded. No appearance was made by the other respondents and counsel for Smoleski moved to dismiss Patrick as a party respondent which motion was subsequently withdrawn and the case was heard upon oral argument and briefs of counsel for both Smoleski and Patrick.

The issuance of a rule in prohibition by the Circuit Court of Hancock County did not deprive this Court of jurisdiction in the original proceeding in mandamus at that time pending in this Court. The issue in this case being identical to that in the mandamus proceeding and the decision herein being controlled by our decision in that case, the writ of prohibition as prayed for is awarded.

Writ awarded.