Fleshman v. McWhorter

• Citation: 46 S.E. 116,54 W.Va. 161
• Parties: FLESHMAN v. McWHORTER, Judge, et al.
• Decision Date: 21 November 1903
• Court: West Virginia Supreme Court

46 S.E. 116

54 W.Va. 161

FLESHMAN v. McWHORTER, Judge, et al.

Supreme Court of Appeals of West Virginia.

November 21, 1903

Submitted September 2, 1903.

Syllabus by the Court.

1. In awarding or refusing costs under section 6 of chapter 138 of the Code of 1899, the judge of a circuit court acts judicially, and the writ of mandamus does not lie to control his discretion.

2. Failure of the law to give a right of appeal, where a party feels that he has been injured by a decision, affords no ground for an application for the writ of mandamus.

3. There is no absolute right in a suitor to have a decision against him reviewed, which must be respected in making laws and. in the absence of a constitutional inhibition, it is within the power of the Legislature to prescribe the cases and the courts in which parties shall be entitled to appellate remedies.

4. One trial, without review, fulfills the maxim that there is a remedy for every wrong. Allowing appeals and writs of error in some cases only permits the remedy to be further pursued in them than in those as to which such provisions are not made.

Petition of B. M. Fleshman for writ of mandamus to J. M. McWhorter judge of the circuit court of Greenbrier county, and others. Writ refused.

Williams & Dice, for petitioner. Preston & Wallace, for respondents.

POFFENBARGER J.

D. M Fleshman asks that a peremptory writ of mandamus issue against Hon. J. M. McWhorter, judge of the circuit court of Greenbrier county, requiring him to enter a judgment for costs in favor of petitioner in an action of trespass on the case in which he was plaintiff and D. F. Hedrick was defendant, and in which the plaintiff recovered a judgment for $1. The action was for breaking, entering, and trespassing upon the plaintiff's close. No other cause of action is set out in the declaration, and the plea was "Not guilty." But it is claimed by the petitioner that the action was brought for the purpose of determining in this indirect way a controversy between the plaintiff and defendant concerning a right of way over the plaintiff's land. They own adjoining tracts of land, the titles to which were derived from a common source--David Hedrick--who conveyed the land now owned by the plaintiff to S. A. Hedrick in 1875, who in 1896 conveyed to the plaintiff. David Hedrick conveyed to the defendant his land in 1901. An old pathway led across the lands of both parties, and the defendant claimed a right of way through the plaintiff's land along said pathway by prescription or long user thereof; claiming that it had been so used for 60 years or more. Plaintiff had forbidden the defendant to use the pathway, and obstructed it by increasing the height of the fence and in other ways; but afterwards the defendant had entered and torn away the obstructions, and continued to use it against the will of the plaintiff. These facts appear from an agreed statement of facts incorporated in a bill of exceptions, and exhibited with the petition, together with the pleadings and orders in the case. Upon the trial there was a verdict for the plaintiff, with damages assessed at $1, for which sum the court entered a judgment, but refused to give judgment for plaintiff's costs, amounting to $64.30, and also to certify that the object of the action was to try a right other than the mere right to damages for the trespass complained of.

The trial judge and the attorneys for the defendant were of the opinion that judgment for costs in the action is forbidden by section 6 of chapter 138 of the Code of 1899, reading as follows: "In any personal action not on contract, which might be brought and prosecuted to judgment in a justice's court, if a verdict be found for the plaintiff, on an issue or otherwise, for less damages than fifty dollars, he shall not recover, in respect to such verdict, any costs, unless the court enter of record that the object of the action was to try a right besides the mere right to recover damages for the trespass or grievance in respect of which the action was brought, or that the said trespass or grievance was willful or malicious." The attorneys for the plaintiff insist that the action was one which could not have been brought and prosecuted to judgment in a justice's court, as it involved the title to real estate; that there was a plain duty resting upon the judge to enter the certificate, even if the case did fall within that statute; and that the plaintiff has no remedy for his costs, unless it be by mandamus.

The rendition of a judgment of any kind is the exercise of a judicial function and power. Mandamus will not lie to control the exercise of the discretion of any court, board, or officer when the act complained of is either judicial or quasi judicial in its nature. State v. County Court, 33 W.Va. 589, 11 S.E. 72. An inferior tribunal may be compelled to act in such cases, if it neglects or refuses to do so, but mandamus is not a remedy by which it can be compelled to enter any particular judgment or to act in any particular manner. By this writ the inferior court, board, or officer can only be compelled to move, but not to move in any particular way. Its discretion cannot be controlled. Miller v. County Court, 34 W.Va. 285, 12 S.E. 702; State v. Herrald, 36 W.Va. 721, 15 S.E. 974; Marcum v. Commissioners, 42 W.Va. 263, 26 S.E. 281 36 L. R. A. 296. These authorities, as well as many others, further hold that if such court, board, or officer is acting in respect to the matter which is the subject of complaint, or has acted upon it, mandamus does not lie at all. If the court is proceeding to act, and commits an error, or has completed its function, and erred in doing so, the remedy, if any, is by some form of appellate procedure. Though these general principles are decisive of the case, the following authorities more directly in point are cited. In Jansen v. Davison, 2 Johns. Cas. 72, there was a recovery of a sum less than $25, and the court refused a judgment for costs. Thereupon a mandamus was asked for, and the superior court refused it, saying: "The court below have exercised their judgment on the question of costs. If they were wrong, it was...