Kump v. Mcdonald

• Decision Date: 08 June 1908
• Citation: 64 W.Va. 323,61 S.E. 909
• Court: West Virginia Supreme Court
• Parties: KUMP. v. McDONALD et al.

64 W.Va. 323

61 S.E. 909

KUMP.

v.McDONALD et al.

Supreme Court of Appeals of West Virginia.

June 8, 1908.

1. Prohibition—Pasties Defendant.

In prohibition, the rule to show cause against the issuance of the writ must go against both the tribunal to be prohibited from exercising jurisdiction of the case, and the person having adverse interest to be affected by the writ, and the writ must also be against both as parties to it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Prohibition, § 71.]

2. Same—Political Executive Committee-Recount of Ballots.

A writ of prohibition will not lie against the executive committee of a political party while engaged in canvassing returns of a primary election for nomination for office, to prohibit it from making a recount of ballots.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Prohibition, §§ 31, 32.]

3. Courts — Jurisdiction — Political Parties.

Courts do not exercise jurisdiction in matters purely political pertaining to the management and proceedings of a political party, except so far as authorized by statute.

(Syllabus by the Court.)

Petition of H. G. Kump for writ of prohibition against Floyd McDonald and others Writ denied.

C. H. Scott, S. T. Spears, and Talbott & Hoover, for petitioner.

Jared L. Wamsley and Taylor & Allen, for respondents.

BRANNON, J. The executive committee of the democratic party called a primary election held on April 25, 1908, in Randolph county, for nomination of candidates for county offices, at which election H. G. Kump and James Coberly were competitors for nomination for the office of prosecuting attorney. The precinct returns or certificates showed a majority for Kump. When the committee convened to pass on the returns Coberly demanded a recount of the ballots used in the election and returned to the committee, and Kump objected and denied right to a recount, and asked the committee to declare that he had been nominated, and to certify his nomination to the circuit court clerk; but the committee, the chairman and secretary being present, refused to make a declaration of the result until such recount should be had, and fixed a future day for such recount. Kump then obtained a rule in prohibition to prohibit the executive committee from making such recount, which rule was awarded by a judge of this court.

The rule required the chairman, secretary, and members of the committee to show cause against the prohibition, not requiring Coberly to appear and show cause against it, and for this defect we were moved to wholly dismiss the proceeding. Coberly being immediately interested in the case, we ruled that he must have notice of the proceeding by service of the rule and be allowed to make defense. There is some authority to show that the final writ need not go against the individual prosecuting the suit, and that he need not be a formal party to it, on the theory that if the tribunal is prohibited, the party need not be as he cannot control the tribunal to go on. So I was inclined to think. Notes in 16 Ency. Pl. & Pr. 1135. But it seems, according to common-law authority, that the writ goes to the judge and party, commanding the judge not to hold and the party not to follow the...