Vineyard v. O'Brien

• Citation: 130 S.E. 111,100 W.Va. 163
• Decision Date: 20 October 1925
• Docket Number: 5517.
• Parties: VINEYARD v. O'BRIEN, JUDGE, ET AL.
• Court: Supreme Court of West Virginia

130 S.E. 111

100 W.Va. 163

VINEYARD v. O'BRIEN, JUDGE, ET AL.

No. 5517.

Supreme Court of Appeals of West Virginia.

October 20, 1925

Submitted September 2, 1925.

Syllabus by the Court.

The writ of prohibition will issue only in clear cases, where the inferior tribunal is proceeding without, or in excess of jurisdiction.

Petition by T. E. Vineyard, for prohibition to be directed to W. H O'Brien, Judge, and others. Writ denied.

S. P Bell and Grover F. Hedges, both of Spencer, for petitioner.

Harper & Baker, of Spencer, for respondents.

LITZ J.

A writ of prohibition is sought by petitioner, T. E. Vineyard, prohibiting the respondent Amos B. Kenney, commissioner in chancery of the circuit court of Roane county, from executing an order of reference in a certain suit in chancery pending in said court, wherein the respondent E. E. Adams is plaintiff and petitioner is defendant, by making search and examination of books, documents, and papers of the petitioner, and further prohibiting respondent W. H. O'Brien, judge of said court, from compelling petitioner to exhibit to said commissioner all of his books, documents, and papers for such examination.

The bill filed in the chancery cause at November rules, 1924, alleges, among other matters, that E. E. Adams had borrowed from the petitioner numerous sums of money at unlawful rates of interest, and prays that the petitioner be required under oath to make full, true, and comprehensive discovery and disclosure of the several financial transactions between the parties subsequent to the year 1912, and that a decree be entered against the petitioner in favor of the said respondent for the amount so found to be due the latter by the former on account of such usurious interest.

June 25, 1925, after the filing of an answer by petitioner in said cause, the decree of reference complained of was entered, referring the cause to the said commissioner in chancery, with direction to take, state, and report an account between the parties, "showing all the financial transactions between them within the period of ten years prior to the institution of the suit, in so far as the same show or tend to show the rate of interest plaintiff has paid to defendant for the use of, or for the forbearance in the collection of, money loaned by the defendant to the plaintiff, or for cash, or discount of claims due to plaintiff, or for other financial matters between them, what sums shall have been paid for such purposes, on what amounts, and for what length of time," and providing that, for the purpose of enabling the commissioner to fully and completely execute the order, " he may have access to any and all books, papers, and documents of either of the parties which show or tend to show any of the matters to be reported."

The petition charges that the commissioner in chancery has given notice that he will at a specified time and place proceed to execute the order of reference, and in doing so is threatening "to search...