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67 W. Va. 118

Kennedy v. Holt

West Virginia Supreme Court

Decided February 22, 1910

West Virginia Supreme Court · decided 1910-02-22

<p>1. Prohibition — Grounds■—Error of Law.</p> <p>A writ of prohibition, does not lie against an execution for costs awarded by a circuit court on a motion to quash an execution, the. circuit court haying lawful jurisdiction of such.motion.</p> <p>2. , Same — Ground—■Amount of Costs not Warranting Writ of Error.</p> <p>Where the proceeding is of such nature as to forbid a writ of prohibition when the amount is over $100, the fact that it is less in amount will not give prohibition in a proceeding of like ■ nature.</p> <p>(Robinson, Pbesident, Absent).</p>

Relies on Johnston v. Hunter · Farnsworth v. B. & O. R. R.

Good law ✅— No negative treatment on recordhow we know

Writ Refused · Decided 1910-02-22

How this case has been cited

Cited by 5 later decisions — most recently June 1951

5 state decisions

2019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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BRANNON, Judge:

¶1An 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.

¶2We 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 enter*119tain 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.

¶3Writ Befiised.

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