Koonce v. Doolittle

• Citation: 48 W.Va. 592,37 S.E. 644
• Court: Supreme Court of West Virginia
• Decision Date: 21 December 1900
• Parties: KOONCE. v. DOOLITTLE, Judge.

48 W.Va. 592
37 S.E. 644

KOONCE.
v.
DOOLITTLE, Judge.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1900.

APPEAL—SYLLABUS—RES JUDICATA—MANDAMUS.

1. The adjudications of facts by this court are not required to be made points in the syllabus.

2. Questions of fact adjudicated in the opinions of the judges of this court, when necessary to the determination of the case, are res adjudicata, and not open for review and readjudica-tion by the circuit court during the further progress of the litigation, although such circuit court may deem such adjudication erroneous, and not final.

3. Mandamus is the proper remedy to compel the circuit judge or court to comply with the mandate of this court.

(Syllabus by the Court.)

[37 S.E. 645]

Application of Samuel C. Koonce for writ of mandamus to Judge E. S, Doolittle. Writ granted.

W. P. Hubbard, for petitioner.

Simms & Enslow, for respondent.

DENT, J. On application of Samuel C. Koonce for a writ of peremptory mandamus to compel Judge E. S. Doolittle, of the circuit court of Cabell county, to obey the mandate of this court in the case of Schmertz v. Hammond, the honorable judge answers that he has in no wise disobeyed the command of this court, but has in all respects strictly obeyed the same; that the matter complained of in the petition for mandamus was a matter left open to his discretion by the mandate, opinion, and syllabus of this court. This raises an issue that can alone be determined by an inspection of the opinion of the court. Turning to the opinion found in the cited case in 35 S. E. 953, we find the matter in controversy stated as follows, to wit: "It is contended by appellants that they are at least entitled to a decree for a lien on the lands for the amount of the purchase money paid by S. C. Koonce under the deed of trust, with Interest." The opinion then proceeds to consider this claim, and the law governing the same, and then adjudicates that "the sum of $3,254.19, the amount paid from his own funds by S. C. Koonce to Vinson for the purchase and assignment thereof, with interest from November 8, 1877, the date of the assignment, is the first lien upon the property, and in favor of the assignee of Vinson." The decree finally closes: "For the reasons herein stated, the decree will be reversed, and the cause remanded for further proceedings to be had herein, "—one of the reasons for reversal clearly being because the court had denied to Samuel C. Koonce his proper priority as to his debt before stated. This Is an...