State Ex Rel. Thos. T. Bos Well. Relator v. Haymond

Citation84 W.Va. 687
CourtSupreme Court of West Virginia
Decision Date07 October 1919
PartiesState ex rel. Thos. T. Bos well. Relator, v. Hon. Wm. S.Haymond, Judge, etc.

Mandamus Supreme Court of Appeals Will Construe and Correct Mistake of 'Lower Court in Construing Mandate. It is proper for this court, on application for a writ of mandamus, to construe its own mandate in connection with its opinion; and if it finds that the circuit court has erred, or acted beyond its province, in construing the mandate and opinion, to correct the mistake now and here, and to do so by writ of mandamus.

Mandamus by the State, on the relation of Thomas T, Boswell, against Hon. Wm. S. Haymond, Judge, etc.

Peremptory writ awarded.

Martin & Seibert, and 8perry & 8perry, for relator. John J. Conijf, H. 8. Lively and Austin V. Wood, for respondent.

Lynch, Judge:

In the chancery cause of Howard A. Oberman, trustee, against Red Rock Fuel Company and others, brought to this court by Thomas T. Boswell, a defendant therein, upon appeal from a decree of the circuit court of Marion County, decided here March 4, 1919, (83 W. Va. 473, 99 S. E. 66), there was involved the inquiry whether Boswell was entitled to demand and have executed to him by Red Rock Fuel Company a coal mining lease upon certain parcels of its coal properties, possession of which he took with the acquiescence, knowledge and consent of the company, but which subsequently was taken from him by an interlocutory order entered in the cause and delivered to George De Bolt, receiver, about January 22, 1916, where such possession remained at the date of the decision rendered by this court upon the appeal.

This right to demand the execution of a coal mining lease Boswell introduced into the cause for the first time by his answer to the bill filed by Oberman, trustee, in the nature of a cross-bill setting up new matter and predicating his right to a lease thereon. The right so asserted by him grew out of negotiations conducted between himself and the officers and agents of the Red Eock Fuel Company in the city of Baltimore on or about the first day of October, 1915, and as a result of which negotiations, as he contends, a provisional agreement was arrived at by the parties then so assembled, whereby the company granted him the right to enter upon the land at once and begin operations thereon, and bound itself to execute to him upon certain terms and conditions a coal mining lease upon that portion of the company's properties which was the subject matter of the agreement, one of the terms of which was that the contract was to be effective as of the date last mentioned, and he was to pay for the coal mined and removed therefrom at the rate of 11.2 cents per ton during the life of the contract, with the usual provision concerning payment of an annual minimum royalty.

Upon the hearing of the cause this court found for Boswell, and by its order required Red Rock Fuel Company, through its officers and agents, to execute such a contract, to become effective as of the date aforesaid, and required De Bolt, the receiver, to account to Boswell for the coal mined during the receivership upon the royalty basis of 11.2 cents per gross ton, but without liability on the...

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6 cases
  • State ex rel. Emery v. Rodgers, 10565
    • United States
    • West Virginia Supreme Court
    • 7 d2 Julho d2 1953
    ...in construing the mandate and opinion, to correct the mistake now and here, and to do so by writ of mandamus.' Syllabus, Boswell v. Haymond, Judge, 84 W.Va. 687, Martin & Seibert and Clarence E. Martin, Jr., Martinsburg, for relators. L. I. Rice, Martinsburg, for defendant. LOVINS, Judge. T......
  • State ex rel. Smoleski v. County Court of Hancock County
    • United States
    • West Virginia Supreme Court
    • 1 d2 Julho d2 1969
    ...a proceeding in a trial court may be compelled and that mandamus is the proper remedy to require such compliance. State ex rel. Boswell v. Haymond, 84 W.Va. 687, 100 S.E. 493; State ex rel. King v. Mason, 60 W.Va. 607, 56 S.E. 377; Butler v. Thompson, 52 W.Va. 311, 43 S.E. 174; Koonce v. Do......
  • State ex rel. McCartney v. Nuzum
    • United States
    • West Virginia Supreme Court
    • 26 d4 Outubro d4 1978
    ...the mandate and opinion, to correct the mistake now and here, and to do so by writ of mandamus.' [State ex rel.] Boswell v. Haymond, Judge, 84 W.Va. 687, 100 S.E. 493. A decision of this Court on appeal may not be limited or restricted in any manner whatsoever by a trial court and this Cour......
  • Baler v. Alexander
    • United States
    • West Virginia Supreme Court
    • 15 d2 Março d2 1938
    ...but that interpretation may, by mandamus, be controlled by this court in a proper case. King V. Mason, supra; Boswell v. Haymond, 84 W. Va. 687, 100 S. E. 493. It is clear from the record that the claims of the materialmen sought to be asserted in the West Virginia Brick Company case, which......
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