Wolfe v. Shaw

• Decision Date: 21 March 1933
• Docket Number: (No. 7593)
• Citation: 113 W.Va. 735
• Court: West Virginia Supreme Court
• Parties: William Opha Wolfe v. Hon. Harry Shaw, Judge, etc., et at.

113 W.Va. 735

William Opha Wolfe

v.Hon. Harry Shaw, Judge, etc., et at.

(No. 7593)

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1933.

Decided March 21, 1933.

(Rehearing denied June 3, 1933)

Prohibition

Prohibition may be invoked, though writ of error to a final judgment would be available, where it clearly appears upon the evidence submitted in support of a plea in abatement that the trial court is without jurisdiction.

Original proceeding by William Opha Wolfe for a writ of prohibition prayed to be directed to the Honorable Harry Shaw, Judge, etc., and others.

Writ awarded.

B. W. Craddock and Deem & Moist for petitioner. R. L. Ramsay and M. E. Morgan for respondents.

Woods, Judge:

Wolfe seeks a writ prohibiting the circuit court of Marion County from proceeding further in the personal injury case of Clara Miller against himself and one Wallace Pfeffer. The injury declared on was sustained in an automobile accident in Marion County, the cars involved being driven by Wolfe and Pfeffer, respectively. The former is a substantial citizen of Gilmer County, and the latter a young man under twentyone years of age, of Brooke County.

The circuit court's jurisdiction was challenged by plea in abatement, which alleged in effect that Pfeffer had been joined as a party defendant and served with process in Marion County as a part of a fraudulent scheme to acquire jurisdiction over Wolfe in said county. The plea was held good on demurrer. Evidence was submitted on behalf of petitioner in support of the plea. The trial court sustained a demurrer to the evidence on the ground that it failed to sustain the charges of the plea. And to this ruling, the petitioner herein duly excepted.

Where there are several parties defendant, all of whom are residents of counties other than the one in which the cause of action arose, if service is had on one of their number within the county in which the cause of action arose, process may be directed to the respective counties in which the remaining defendants reside. Code 1931, 56-1-2. Had Wolfe been the only defendant, venue under the foregoing section would be dependent upon personal service in Marion County. But the pleading sets up a case against Pfeffer as well as Wolfe. And service of process was had on Pfeffer in Marion County. So prima facie, the circuit court of Marion County had jurisdiction of the subject matter.

It appears from the evidence adduced in support of the plea that Clara Miller, a Miss Tyree, William Pfeffer and Lillie Pfeffer (the latter two being father and mother, respectively, of Wallace Pfeffer), were in the car driven by Wallace Pfeffer; that the car belonged to Clara Miller; that the five were on their way to a ball game in Lewis County when the accident occurred; that sometime thereafter Wallace Pfeffer was induced to come to Fairmont, Marion County, by Clara Miller's attorneys, and while there presumably in reference to his case against Wolfe, which had been brought in Gilmer County, was served with process in separate actions instituted by the same attorneys on behalf of Clara Miller, William Pfeffer and Lillian Pfeffer against him and Wolfe; that these several plaintiffs testified in Wallace Pfeffer's action against Wolfe in plaintiff's favor; that plaintiff Clara Miller in the action now sought to be prohibited testified before the court that she had no claim against Pfeffer and that she held him blameless of any of the alleged damages resulting to her by reason of the accident. Without further comment on the evidence it suffices to say that the Court is of opinion that it was sufficient to sustain the charges in the plea; hence the demurrer to the evidence should have been overruled and the action abated.

But is prohibition the proper remedy, or must petitioner herein await a possible adverse judgment, and attack the court's ruling on his plea in abatement by writ of error?

The law is well settled in this state that a writ of prohibition may not be used to usurp or perform the functions of an appeal, writ of error or certiorari. In other words, the office of the writ is to prevent an unlawful assumption of jurisdiction, not to correct mere errors and irregularities in matters over which the inferior court has cognizance. King v. Doolittle, 51 W. Va. 91. 41 S. E. 145; Johnston v. Hunter, 50 W. Va. 52. 40 S. E. 448; Sperry v. Sanders, 50 W. Va. 70, 40 S. E. 327; N. c(; W. Ry. Co. v. Coal Co....