King v. Doolittle

• Citation: 41 S.E. 145,51 W.Va. 91
• Court: West Virginia Supreme Court
• Decision Date: 08 March 1902
• Parties: KING v. DOOLITTLE, Judge.

41 S.E. 145

51 W.Va. 91

KING

v.DOOLITTLE, Judge.

Supreme Court of Appeals of West Virginia.

March 8, 1902.

prohibition—remedy by appeal. Where an appellate court reverses the decree of a circuit court, and adjudicates the principles then involved in the case, and remands the ease, and in further proceedings it is claimed that the circuit court is disregarding the decree of the appellate court, and departing from its decision, and rehearing matters heard in the appellate court, no writ of prohibition lies, for the reason that an appeal is the proper remedy. (Syllabus by the Court.)

Petition of Henry C. King for a writ of prohibition to E. S. Doolittle, Judge. Writ denied.

M. F. Stiles, for petitioner.

W. P. Hubbard and Campbell, Holt & Duncan, for respondent.

BRANNON, P. As will appear from State v. King, 47 W. Va. 437, 35 S. E. 30, in the year 1894 the state of West Virginia brought a chancery suit against Henry C. King and others in the circuit court of Wyoming county, which was afterwards removed to the circuit court of Logan county, and still later to the circuit court of Cabell county, having for its object the sale of that part tying in this state of a tract of 500, 000 acres of land patented by the state of Virginia to Robert Morris, 23d of June, 1795, now claimed by King, on the ground of its forfeiture to the state for failure of its owners to assess it for taxes. King filed an answer in the case, contesting the forfeiture, but asking that, if it should be decided that the land had been forfeited, he might be allowed to redeem it It appeared that title to only about 10, 000 acres was unclaimed by others, and King concluded to redeem only this by payment of the sum proper to redeem that quantity. A decree was made in the case declaring that the land had become forfeited, and that King had right above all others to redeem; and he having paid a certain sum. which was computed as chargeable for 10, 000 acres, the decree accepted it as a proper sum to accomplish redemption, and declared that all the land of the tract lying in West Virginia had been redeemed from forfeiture. Upon appeal this court decreed a partial reversal of the decree, and held that the decree of the circuit court of Wyoming county, pronounced in this case on the 30th day of September, 1897, "in so far as it allows the appellee, Henry C. King, to redeem the land described in the decree by reason of the payment of the sum of $3,090.08, costs, taxes and interest fixed by the circuit court, and in so far as it ascertains and fixes such costs, taxes, and interest, be, and the same is hereby, set aside, reversed, and annulled, and in all other respects the decree is affirmed. And * * * this cause is remanded to the circuit court of Wyoming county, with direction to said court to permit the said appellee, Henry C. King, to amend his petition so as to carefully and accurately locate the portion of said land he desires to redeem." After the cause went back to the circuit court the state, as required by that court, filed a fifth amended bill, against King's objection, making about 400 new parties, and saying that they were claimants to parts of the land. These were persons whom King had named in his answer filed before said decree as persons claiming parts of the land, and who, as the answer suggested, should be made parties; but they were not made parties prior to the decree. When the proposition to file said fifth amended bill was up, King retracted that part of his answer suggesting that these persons should be made parties. Some of these new parties appeared and denied King's right to redeem. Those who were already parties were also made parties to the amended bill. Under direction of this court King filed a petition specifying what particular parts of the land he wished to redeem, disclaiming right to redeem other parts, and the tracts and persons owning them which he did not desire to redeem were dismissed from the case; but some of the parties to said fifth amended bill do claim land covered by that which King desired to redeem, and they contest his right to do so. The court referred the cause to a commissioner to report as to the title of the parties, including these new parties, and other matters, including some matters which had been reported upon in a report made under a for mer reference, when the new parties brought in by the fifth amended bill were not parties Thus far the case had proceeded when King applied to this court for a writ of prohibition against the circuit court to prohibit it from further proceeding on said fifth amended bill, or upon the answers to it, and from

receiving any further answers to it, and from prosecuting any examination or inquiry into any matters which had been adjudged by the decree of this court, except only as to the amount of taxes, interest, and costs chargeable on the lands specified in King's amended petition as the lands which he had...