Hutton v. Judge
| Citation | 44 S.E. 164,52 W.Va. 672 |
| Parties | HUTTON. v. HOLT, Judge, et al. |
| Decision Date | 20 December 1902 |
| Court | West Virginia Supreme Court |
MANDAMUS TO JUDGE.
1. Unless the petitioner shows a clear legal right to have the thing done of which he complains, mandamus will be denied.
2. The syllabus in the case of Phares v. Holt or Marstiller v. Ward (decided at this term) 43 S. E. 178, approved.
(Syllabus by the Court.)
Application by Alfred Hutton for writ of mandamus to John Homer Holt, judge, and others. Writ denied.
W. B. Maxwell, for petitioner.
C. W. Dailey, for respondents.
DENT, P. Alfred Hutton asks the court for a writ of mandamus to compel Hon. John H. Holt, judge of the circuit court of Randolph county, to enter up a judgment in petitioner's favor against Elihu Hutton in a certain action at law in such court pending, wherein petitioner was plaintiff and Elihu Hutton defendant. Petitioner brought suit against the defendant on the 22d day of August, 1901. Summons was served and office judgment entered at rules, and the case was placed on the trial docket for the October term, 1901. Petitioner filed with his declaration an affidavit as to the amount he was entitled to recover. No action was taken at that term, nor at the succeeding January term, but at the May term the petitioner moved the court to enter up judgment. The defendant resisted the motion, asked that the office judgment" be set aside, and he be permitted to plead. The court overruled petitioner's motion, set aside the office judgment, and permitted the defendant to file a plea. The petitioner then applied for this writ, claiming that the court was acting without authority in setting aside the office judgment, as it had become final. This is the same question presented in the case of Phares v. Holt, Judge, or Marstiller v. Ward (decided at this term) 43 S. E. 178. The law is fully settled in that case, and it is useless to repeat it here.
The affidavit filed by the petition to obtain judgment is fatally defective, in that it fails to conform with the statute in alleging that the debt is not only due, but is unpaid. The court was not bound, therefore, to enter up judgment until a proper affidavit was filed, nor is the petitioner entitled to a mandamus to compel him to do so. A clear legal right to have the thing done must be shown before a mandamus will be awarded to compel the doing thereof.
For this reason the mandamus is refused, and the petition dismissed.
To continue reading
Request your trial
-
State ex rel. Porter v. Bivens, 12659
...In the opinion in that case this Court said: 'We decided in Martin v. White, 74 W.Va. 628 (82 S.E. 505), and in Hutton v. Holt, Judge, 52 W.Va. 672 (44 S.E. 164), that mandamus does lie to admit one to an office, where a clear legal right thereto is shown. The question presented here, is ha......
- State Ex Rel. Jones v. Kuhn
-
State Ex Pel. Looney v. Carpenter
...as enunciated in Martin v. White, 74 W. Va. 628, 82 S. E. 505, and other cognate decisions of this court, such as Hutton v. Holt, 52 W. Va. 672, 44 S. E. 164; and Jones v. Kuhn, 94 W. Va. 415, 120 S. E. 888. On that point it is sufficient to say that the statute says in terms that upon fail......
-
State v. Carpenter
... ... White, 74 W.Va. 628, 82 S.E. 505, and other cognate ... decisions of this court, such as Hutton v. Holt, 52 ... W.Va. 672, 44 S.E. 164; and Jones v. Kuhn, 94 W.Va ... 415, 120 S.E. 888. On that point it is sufficient to say that ... the ... ...