West v. Rawson
| Decision Date | 06 April 1895 |
| Citation | 21 S.E. 1019,40 W.Va. 480 |
| Parties | WEST et al. v. RAWSON, Justice of the Peace, et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. The five dollars' forfeit prescribed by law (section 37, c 44, Code) to be paid by the proprietor of a gristmill to his customer for taking more toll than allowed by the statute may be recovered in a civil proceeding before a justice of the peace.
2. Where such justice has jurisdiction of the subject-matter in controversy, and does not exceed his legitimate powers, a writ of prohibition should not be granted.
Error to circuit court, Wirt county.
Writ of prohibition by O. West and others against W. J. Rawson justice of the peace, and John Lockhart. From an order dismissing the writ, plaintiffs bring error. Affirmed.
T. A Brown, for plaintiffs in error.
Casto & Lockhart, for defendants in error.
HOLT P.
Upon a writ of error to the judgment of the circuit court of Wirt county rendered on the 21st day of June, 1894, refusing to award plaintiffs in error (defendants below) a writ of prohibition. The plaintiffs in error, O. West and others, are the owners of a gristmill in the county of Wirt. John Lockhart, one of the defendants, took grain to the mill, to be ground for the consumption of himself and family. He complined that the proprietors of the mill took for toll more than the statute allows, and accordingly brought suit before W. J. Rawson, a justice of the peace, against West and others, to recover five dollars, the sum which the statute declares the proprietor of the mill shall forfeit to the party injured for such violation. Such proceedings were had before the justice that the cause was ready and about to be tried when defendant West applied for and obtained from the circuit judge, in vacation, a rule against W. J. Rawson, the justice, and John Lockhart, the plaintiff, to appear at a time and place designated after being served with a copy of the order, and show cause, if any they could, why a writ of prohibition should not be awarded commanding Rawson, the justice, and Lockhart, the plaintiff, from further proceeding in said action then pending before the justice. On the 27th day of March, 1894, the plaintiffs, O. West and others, appeared in court; and on their motion, the rule having been served, their motion for writ of prohibition was docketed. On the 6th day of April, defendant Lockhart tendered his answer to the rule, and the same was ordered to be filed. On the 21st day of June, West and others moved the court to strike out the answer, but the court overruled the motion; and the cause then coming on to be heard upon the pleadings and evidence, including the transcript of the record of the proceedings pending before the justice and argument of counsel, the court was of opinion that plaintiffs, West and others, did not show themselves entitled to the writ, and gave judgment that the same should not issue, dismissing the rule, with costs.
The only question of importance turns upon the meaning and application, with reference to the jurisdiction of a justice, of section 37 of chapter 44 of the Code (Ed. 1891, p. 358), which reads as follows:
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