Lyons. v. Et At.

• Decision Date: 16 May 1933
• Docket Number: (No. 7459)
• Citation: 113 W.Va. 652
• Court: West Virginia Supreme Court
• Parties: Perry Lyons et al. v. R. C. Steele et at.

113 W.Va. 652

Perry Lyons et al.

v.R. C. Steele et at.

(No. 7459)

Supreme Court of Appeals of West Virginia.

Submitted May 9, 1933.

Decided May 16, 1933.

Prohibition-

One with a technical right to a writ in prohibition may forfeit that right by his misconduct.

Litz, Judge, absent.

Error to Circuit Court, Kanawha County.

Proceedings in prohibition by Perry Lyons and others against R. C. Steele and others. To review an adverse judgment, R. C. Steele and others bring error.

Reversed and dismissed. C. E. Copen, for plaintiffs in error.

Hatcher, Judge:

R. C. Steele paid Perry Lyons and Lizzie Lyons, his wife, $200.00 for a tract of land and received a deed. Adam Cornell brought a suit in chancery against the Lyonses and Steele, claiming actual possession of the tract under a prior executory contract with the Lyonses to purchase the tract, and part payment of the purchase price. In that suit, the court found in favor of Cornell and cancelled the deed from the Lyonses to Steele on condition that within ten days from the adjournment of the court, Cornell should pay to the Lyonses the balance due on his purchase price. Cornell complied with the condition within the ten days by paying the balance to the clerk. Whereupon, Steele sued the Lyonses before a justice to recover the $200.00 he had paid them for the tract. Perry Lyons filed with the justice the statutory affidavit that the title to the real estate would come in question. Steele filed a counter affidavit, The justice heard the action and rendered judgment for Steele. The Lyonses secured a writ in the circuit court prohibiting the collection of Steele's judgment, A writ of error was granted Steele in the proceeding in prohibition.

The affidavit of Perry Lyons filed with the magistrate recounted the Cornell chancery suit, stated the conditional finding therein in favor of Cornell, and alleged that he had not complied with the condition. The counter affidavit of Steele said merely that the title to real estate would not properly come in controversy in the action. The opinion of Steele in the matter (which was all the affidavit contained) was not sufficient. Code 1931, 50-4-16, requires the counter affidavit of the plaintiff in such case to deny the truth of the facts alleged by the defendant. Failure of the counter affidavit to contain such denial deprives the justice of further juris- diction, provided the facts alleged in the defendant's affidavit show that the title to real estate will come into question.

The decree in the Cornell chancery suit requiring him to pay the balance due on his purchase price, etc., was entered on June 23. 1930. A subsequent decree, entered on October 28, 1930, found expressly that, within the ten days, Cornell had paid the balance due the Lyonses to the clerk of the court "in accordance with the terms of the above decree" (as the decree recites); that the Lyonses were notified by the clerk (1) of the payment, and (2) that disbursements would be allowed whenever a deed to Cornell was delivered; and that the Lyonses had disregarded entirely the notification. A special commissioner was then appointed to make the deed to Cornell. No appeal was taken.

This is not the ordinary case of usurpation or abuse of judicial authority. By virtue of the decree in the chancery suit, the controverted title was vested absolutely in Cornell and was not properly in question in the action before the justice, and the Lyonses knew so. Yet, Perry Lyons deliberately withheld from his affidavit (made in November, 1931) the facts contained in the chancery decree of October 28, 1930, and made the misleading statement that Cornell "did not pay or offer to pay the sum of money to the defendants within ten days from the date said decree was entered (June 23, 1930) or any part thereof." Steele was entitled to recover the purchase money he had paid the Lyonses. The magistrate did have jurisdiction in fact to entertain Steele's demand. That jurisdiction was challenged only by a misleading affidavit. If the affidavit had stated the whole truth, that jurisdiction would not have been disturbed. Under such circumstances the prohibition of Steele's recovery would frustrate justice, and reward duplicity.

Since 1882, the writ of prohibition has lain as a matter of right, in West Virginia, See Acts 1882, chapter 153, section 1; Code 1931, 53-1-1. In 1931, however, it was further enacted: "The writ peremptory shall be awarded or denied according to the law and facts of the case." See 53-1-8. Construing the two statutes together, it would seem that while prohibition still lies as a demandable right despite legal remedy by appeal or otherwise, the writ does not issue as a matter of course, but depends on the circumstances of each particular case. Where the circumstances disclose that injustice would result from imposing the writ (as herein) the supreme court of California would deny it. "The writ of prohibition is classed among legal remedies but there are points of similarity between the remedy thus afforded, and the remedy by injunction against proceedings at law. Being an extraordinary remedy, the writ should not be made the instrument of injustice." Bank v. Sup. Co., 12 Cal. App. 335, 107 P. 322. 327. No authority is cited in the opinion and no textwriter on prohibition specifically upholds the California decision or says that prohibition is subject to equitable principles. Most of the texts record that the court should proceed in prohibition "with great caution and forbearance" and seek a solution in "the furtherance of justice". See generally High Extr. Leg. Rem. (3d Ed.), sec. 765; 50 C. J., on Prohibition, see. 11; 22 R,...