Swinburn v. Smith

Citation15 W.Va. 483
CourtSupreme Court of West Virginia
Decision Date25 October 1879
PartiesSwinburn v. Smith, Judge, &c., and Dryden and Swinburn v. Smith, Judge, &c, and Gillison.

(Absent, Moore, Judge.)

A writ of error and supersedeas does not lie to the judgment of a county court in an election contest, but only a certiorari

This Court having so decided and remanded such a case to the county court for trial, and the county court having decided the case, and a circuit judge having issued a writ of error and supersedeas to this judgment, Held:

This writ was issued by direction of the circuit court judge without jurisdiction or authority and is null and void; and this Court will prohibit all proceedings thereon.

The circuit court judge having in addition to this writ of error and supersedeas issued an injunction prohibiting the person, who had been declared elected to the office and who had duly qualified, from exercising the duties of the office or interfering with the person, who had formerly held this office, in the performance of its duties, Held:

This order of injunction was issued without jurisdiction or authority, and is null and void; and. this Court will prohibit all proceedings on it or in the case in which it was granted.

4. If a party is elected to a county office and receives a certificate of his election from the proper officers and duly and legally qualifies, he is entitled to hold the office pending a contest for the office by another party.

Petition by Thomas Swinburn for a writ of prohibition to prohibit the circuit court of the county of Kanawha from proceeding in two certain cases in said court then pending, in one of which Thomas Swinburn was plaintiff and Joseph Smith, Judge, and John Dryden were defendants, and in the other of which Thomas Swinburn was plaintiff and Joseph Smith, Judge, and W, E. G. Gillison were defendants.

Green, President, furnishes the following statement of the case:

On October 8, 1879, Thomas Swinburn, after due notice to the defendants, filed in this Court two petitions for writs of prohibition, one against Joseph Smith, judge of the circuit court of Kanawha, and John Dryden, and the other against said Smith, as such judge, and W. E. G. Gillison. These petitions set forth that Thomas Swinburn was elected clerk of the circuit court of Kanawha county on October 8, 1878, for the term of six years begining January 1, 1879, and obtained regularly his certificate of election; that John Dryden gave him notice that he would contest his election before the county court of Kanawha county, which they dismissed, on the ground that theyh ad no jurisdiction to try the same. Before any proceeding was taken to review this decision the said Swinburn qualified before said county court as clerk of said circuit court and executed his official bond. A writ of certiorari was afterwards awarded by the circuit court of Kanawha county in said contested election case, and the judgment of the county court was reversed, and ajudment entered up by the circuit court of Kanawha county, from and to which an appeal and supersedeas was granted to this Court, which reversed the judgment of the circuit court and remanded the cause to be tried de novo in said county court, and on the 12th day of September, 1879, said county court finally decided said case, entering the following order:

"This day came the plaintiff and contestant, John Dryden, by his attorneys, and the defendant and contestee, Thomas Swinburn, by his attorneys, and the court having heard the evidence and arguments of counsel doth consider and declare that at the election held on the 8th day of October, 1878, in Kanawha county, State of West Virginia, for the office of clerk of the circuit court of said county for the term of six years commencing on the 1st day of January, 1879, the contestee, Thomas Swinburn, received 2, 182 votes, the contestant, John Dryden, 2, 103 votes, and J. W. Parish 1, 116 votes; and the court doth further consider and declare that said Swinburn, at the time of said election and at the time he received a certificate of election as clerk of said court, was and still is a citizen of the United States of America and of the State of West Virginia and entitled to vote in said State and eligible to be elected to, and to hold, said office for said term. It is therefore considered and declared by the court that said Swinburn at said election was duly and legally elected to said office, and is legally entitled to enter into and perform the duties thereof for said term. It is further considered by the court that the costs in this case and proceedings incurred by said Swinburn be, and the same are hereby awarded to said Swinburn against said Dryden including ar: attorney's fee of $10.00 as allowed by law; and the court proceeding to ascertain the amount of said costs doth find the same to be $11-40, and doth consider and order that the president of this court do deliver a properly authenticated certificate thereof as required by law. And the contestant John Dryden having intimated a desire to present a petition to the judge of the circuit court of Kanawha county for a writ of error and supersedeas to the judgment of the court in this cause, it is ordered that the execution of the judgment of the court in this cause be suspended for the space of twenty days upon the contestant, John Dryden, giving bond before the clerk of this court in the penalty of $500.00 with security to be approved by said clerk, reciting such intention and providing for the payment of all such damages as any person may sustain by reason of such suspension, in case a supersedeas to such judgment should not be allowed and be effectual within the time specified, to which order suspending the execution of said judgment contestee, Swinburn, objected and excepted," and said court adjourned sine die on the 27th day of September, 1879.

These petitions further allege that William E. G. Gillison was clerk of the circuit court for the term next preceding January 1, 1879, and on that day was in the possession of said office, when the petitioner demanded of him the surrender of said office which he refused to give up, contending that he had a right to hold the same during said contest, and he did unlawfully and against the petitioner Swinburn's frequent protests hold the same till September 20, 1879, when this petitioner took possession of said office and has been since in the exclusive control thereof.

The petitions further alleged that on September 13, 1879, the petitioner Swinburn's counsel wrote to Joseph Smith, judge of the circuit court of Kanawha countv, calling his attention to the decision of the Supreme Court of Appeals of West Virginia in the case of Dryden v. Sivinburn, that a writ of error and supersedeas would not lie to a judgment of a county court in a contested election case; that notwithstanding these facts the said Joseph Smith, judge of the Kanawha county circuit court, unlawfully refused, and still refuses, to recognize said petitioner as the clerk of said court and considers and holds said Gillison as clerk. These facts are all stated in each of the petitions. v. And in the petition asking a writ of prohibition to issue against John Dryden the petitioner further states that he, John Dryden, presented his petition to the said Joseph Smith, judge of the circuit court of Kanawha county, asking a writ of error and supersedeas to the said judgment of said county court, which the said Judge awarded; and on this order the said Gillison, unlawfully pretending to act as such clerk of the circuit court of Kanawha county, on September 24, 1879, issued said writ and unlawfully placed it in the hands of the sheriff, the bond having been given, who served it on the petitioner, Swinburn, on that day while in the exercise of his duties as such clerk. No supersedeas bond has been executed before the petitioner as clerk, but one had been executed before said Gillison. And the said Joseph Smith, judge of the circuit court of Kanawha county, holds said writ of error and supersedeas effectual; and by usurpation and without jurisdiction he intends to, and does, hold said pleas and entertains said writ of error and supersedeas, and will proceed to enforce the same against your petitioner, and thus deprives your petitioner of the benefit of said judgment of the county court of September 12, 1879. The prayer of this petition is for a writ of prohibition to said Joseph Smith, judge as aforesaid, and the said John Dryden to prohibit him, the said Joseph Smith judge as aforesaid, from holding the pleas aforesaid, from entertaining said writ of error and supersedeas or proceeding upon the same further, and to prohibit the said John Dryden from proceeding in the premises.

In the other petition in which a writ of prohibition is asked against W. E. G. Gillison these further facts are stated, that Gillison presented fa J bill in chancery Joseph Smith, judge of the circuit court of Kanawha county praying an injunction which was awarded; i. e. that Thomas Swinburn, the petitioner, be inhibited and restrained and enjoined from entering; upon ortempting to enter upon the duties of clerk of the circuit court of Kanawha county, and from taking possession of the said office or of the books, papers, records or furniture therein or anything pertaining or belonging thereto, or taking possession of or keeping possession of the keys, or any of them, belonging to said office, or from interfering in any way with said Gillison's discharge of the duties of said office, or with the plaintiff's care, control and custody of said office and of all things belonging and pertaining thereto until the further order of the court. The order awarding this injunction required the giving of a bond. The injunction was issued September 24, 1879, by W. E. G. Gillison, who signed himself as clerk, and recited that the bond required had been given. This was done when he was not in the office and had no control...

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48 cases
  • State v. Clark
    • United States
    • Texas Court of Criminal Appeals
    • December 15, 1915
    ...the county attorney could institute criminal proceedings. In such a case, as said by the Supreme Court of West Virginia, in Swinburn v. Smith, Judge, 15 W. Va. 483: "The remedy by appeal and writ of error * * * is inadequate to meet the necessities of the case, and when this is the case, an......
  • Slater v. Varney, 10382
    • United States
    • West Virginia Supreme Court
    • February 18, 1952
    ...the instant case, no sustains the position that the instant proceeding is not premature. Dryden v. Swinburn, 15 W.Va. 234; Swinburn v. Smith and Dryden, 15 W.Va. 483, and Dryden v. Swinburne, 20 W.Va. 89, involve a contest before the County Court of Kanawha County of Swinburn's election as ......
  • State ex rel. Porter v. Bivens, 12659
    • United States
    • West Virginia Supreme Court
    • June 27, 1967
    ...to the office against the county auditor for refusal to issue a warrant for the funds of the township.' In the early case of Swinburn v. Smith, 15 W.Va. 483, a prohibition proceeding to prevent a circuit court from proceeding in two cases involving the right of a person holding a certificat......
  • State ex rel. Downey v. Sims
    • United States
    • West Virginia Supreme Court
    • May 18, 1943
    ... ... 516, 117 S.E ... 226; State ex rel. Qualls et al. v. Board of ... Education, 92 W.Va. 647, 115 S.E. 726; State ex rel ... Smith v. County Court, 78 W.Va. 168, 88 S.E. 662, 20 ... A.L.R. 1030. This showing, however, may be by a verified ... petition if its allegations are ... qualified therefor. Booten v. Pinson, 77 W.Va. 412, ... 89 S.E. 985, L.R.A.1917A, 1244; Swinburn v. Smith et ... al., 15 W.Va. 483. In showing his right to relief a ... relator in mandamus may challenge the constitutionality of a ... statute ... ...
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