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Prohibition, Mandamus, Certiorari, Injunctions

CHAPTER 53. EXTRAORDINARY REMEDIES.

ARTICLE 1. PROHIBITION AND MANDAMUS.

§53-1-1. When writ of prohibition lies as matter of right.

The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.

§53-1-2. Jurisdiction of writs of mandamus and prohibition; by whom rule to show cause or peremptory writ issued.

Jurisdiction of writs of mandamus and prohibition (except cases whereof cognizance has been taken by the supreme court of appeals or a judge thereof in vacation), shall be in the circuit court of the county in which the record or proceeding is to which the writ relates. A rule to show cause as hereinafter provided for may be issued by a judge of a circuit court or of the supreme court of appeals in vacation. A writ peremptory may be awarded by a circuit court or a judge thereof in vacation, or by the supreme court of appeals in term.

§53-1-3. Application for mandamus or prohibition.

Application for a writ of mandamus or a writ of prohibition shall be on verified petition.

§53-1-4. Contents of petition.

The petition shall state plainly and concisely the grounds of the application, concluding with a prayer for the writ.

§53-1-5. When rule to show cause issued; copy of petition to accompany service of rule; when rule returnable.

The court or judge to whom the petition in mandamus or prohibition is presented shall, if the petition makes a prima facie case, issue a rule against the defendant to show cause why the writ prayed for should not be awarded. A copy of the petition shall accompany service of the rule. Such rule shall be returnable at a time to be fixed by the court or judge.

§53-1-6. How defense made; reply; amendments.

If the defendant appear and make defense, such defense may be by demurrer, or answer on oath, to the petition, or both, such answer to be subject to demurrer by the petitioner or relator. Reply may be made when proper. The court or judge may permit amendments as in other cases.

§53-1-7. Adjournment.

When the case is before the judge of a circuit court in vacation, he may adjourn it from day to day, or from time to time, until finally disposed of.

§53-1-8. Award or denial of writ; costs.

The writ peremptory shall be awarded or denied according to the law and facts of the case, and with or without costs, as the court or judge may determine.

§53-1-9. Suspension of proceedings where prohibition applied for.

On petition for a writ of prohibition, the circuit court, or judge in vacation, or the supreme court of appeals, or a judge thereof in vacation, may, at any time before or after the application for the writ is made, if deemed proper, make an order, a copy of which shall be served on the defendant, suspending the proceedings sought to be prohibited until the final decision of the cause.

§53-1-10. Certification of proceedings in vacation; entry in order book.

When the proceedings on the petition are had before the judge of the circuit court in vacation, he shall certify the same, and any judgment or order made by him in the case, to the clerk of the court, and they shall be entered by the clerk in the order book on the law side of the court, and have the same force and effect as if had or made and entered in term.

§53-1-11. Service of writ; how obedience to writ enforced.

Service of a copy of the order awarding the writ shall be equivalent to service of the writ, and obedience to the writ or order may be enforced by process of contempt in vacation in like manner as in term.

§53-1-12. Distribution of levy under mandamus to satisfy judgment against a political subdivision.

Wherever a writ of mandamus, issued to enforce the laying of a levy to satisfy a judgment against a political subdivision of the state, would produce a disturbance in the administration of the financial affairs of the political subdivision not necessary to the protection and enforcement of the right of the creditor, the court may order that the levy be distributed equally over a period of years not to exceed ten, and shall allow the creditor interest, not in excess of the legal rate, upon the installments.

ARTICLE 3. CERTIORARI.

§53-3-1. Jurisdiction.

Jurisdiction of writs of certiorari (except such as may be issued from the supreme court of appeals, or a judge thereof in vacation) shall be in the circuit court of the county in which the record or proceeding is, to which the writ relates. Any such writ may be awarded either by the circuit court or by the judge thereof in vacation.

§53-3-2. When certiorari lies.

In every case, matter or proceeding, in which a certiorari might be issued as the law heretofore has been, and in every case, matter or proceeding before a county court, council of a city, town or village, justice or other inferior tribunal, the record or proceeding may, after a judgment or final order therein, or after any judgment or order therein abridging the freedom of a person, be removed by a writ of certiorari to the circuit court of the county in which such judgment was rendered, or order made; except in cases where authority is or may be given by law to the circuit court, or the judge thereof in vacation, to review such judgment or order on motion, or on appeal, writ of error or supersedeas, or in some manner other than upon certiorari; but no certiorari shall be issued in civil cases before justices where the amount in controversy, exclusive of interest and costs, does not exceed fifteen dollars.

§53-3-3. Contents of record; removal of record to circuit court; review.

In every case, matter or proceeding before a county court, council, justice or inferior tribunal, in which a writ of certiorari would lie according to the provisions of the preceding section, the majority of the commissioners composing a court, or the justice or the officer or officers presiding over such council or other inferior tribunal, shall, upon request of either party in a civil case, matter or proceeding, or the defendant in a criminal case, matter or proceeding, certify the evidence, if any, which may have been heard, and sign bills of exceptions, or certificates as provided in section thirty-six, article six, chapter fifty-six of this code, setting forth any rulings or orders which may not otherwise appear of record. Such certificate of evidence and bills of exceptions or certificates shall be part of the record and as such be removed and returned to the circuit court. The clerk upon receiving such record shall file the same and docket the case, in the same manner that other cases are docketed. Upon the hearing, such circuit court shall, in addition to determining such questions as might have been determined upon a certiorari as the law heretofore was, review such judgment, order or proceeding, of the county court, council, justice or other inferior tribunal upon the merits, determine all questions arising on the law and evidence, and render such judgment or make such order upon the whole matter as law and justice may require. But all such cases removed as aforesaid from before a justice to the circuit court, wherein the amount in controversy is more than fifteen dollars, and in which the judgment of the justice is set aside, shall be retained in such court and disposed of as if originally brought therein.

§53-3-4. Award of certiorari in vacation; habeas corpus in aid thereof.

Such writs may be awarded by the judge of such circuit court in vacation; and, in case of an order abridging the freedom of a person, may be returned and heard and determined by the judge of such circuit court in vacation, if reasonable notice of such hearing shall have been given the other party; and such court or judge may grant a writ of habeas corpus in aid of such certiorari.

§53-3-5. Stay of proceedings on judgment or order removed by certiorari -- Bond.

A writ of certiorari shall not operate to suspend the judgment or order removed thereby, or proceedings on such judgment or order, except in a criminal case, until the party applying therefor, or someone for him, shall file in the office of the clerk of the circuit court a bond payable to the state of West Virginia, with security approved by such clerk, in a penalty to be prescribed by the court or judge awarding the writ, conditioned to perform and satisfy such judgment or order as may be rendered or made by the circuit court, and to pay all such damages and costs as may be awarded to any party by such court or judge, and with any further condition which such court or judge may prescribe.

§53-3-6. Same -- Duration.

When such bond as is mentioned in the next preceding section is filed, the writ of certiorari shall operate to stay all proceedings upon the judgment or order removed by the writ, and all further proceedings before the county court, justice or other inferior tribunal in the case, matter or proceeding in which it was awarded, until the final determination of the matter by the circuit court, except as to any order or sentence abridging the freedom of a person; but the court or judge may let such party to bail, as in other cases.

ARTICLE 5. INJUNCTIONS.

§53-5-1. Injunction for protection of property.

An injunction may be awarded to enjoin the sale of property set apart as exempt in the case of a husband or parent, under articles eight and nine, chapter thirty-eight of this code, or to protect any plaintiff in a suit for specific property, pending either at law or in equity, against injury from the sale, removal, or concealment of such property.

§53-5-2. Forthcoming bond may be required where removal of property from state enjoined.

A court or judge awarding an injunction to restrain the removal of property out of the state may require bond to be given before such officer and in such penalty as it may direct, conditioned to have the property forthcoming to abide the future order or decree of the court, and, unless such bond be given, may order the officer serving its process to take possession of the property and keep it until the bond be given, or until the further order of the court.

§53-5-3. In what courts bill brought.

Jurisdiction of a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specially provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended, and the same may be granted to a judgment of a justice in like manner and with like effect as to other judgments.

§53-5-4. General jurisdiction of judge to award injunction.

Every judge of a circuit court shall have general jurisdiction in awarding injunctions, whether the judgment or proceeding enjoined be in or out of his circuit, or the party against whose proceeding the injunction be asked reside in or out of the same.

§53-5-5. Injunction by judge of supreme court of appeals.

When a circuit court, or a judge thereof, shall refuse to award an injunction, a copy of the orders entered in the proceedings in court, and the original papers presented to the court or to the judge in vacation with his order of refusal, may be presented to the supreme court of appeals, or a judge thereof in vacation, who may thereupon award the injunction.

§53-5-6. Injunction by circuit court or judge where award thereof refused by court of limited jurisdiction.

When a court of limited jurisdiction authorized to grant injunctions, or a judge thereof, shall refuse to award an injunction, a copy of the orders entered in the proceedings in court, and the original papers presented to the court or to the judge in vacation, with his order of refusal, may be presented to the circuit court of the county in which such court of limited jurisdiction is, or to the judge of such circuit court in vacation, who may thereupon award the injunction.

§53-5-7. To what clerk order for injunction directed.

Every order awarding an injunction by a court or judge other than the court or judge in which or before whom it is to be heard shall be directed to the clerk of the court in which it is to be heard.

§53-5-8. Equity of plaintiff to be shown by affidavit or otherwise; notice to adverse party; hearing after injunction awarded or denied; certification of questions; appeals.

No injunction shall be awarded in vacation nor in court, in a case not ready for hearing, unless the court or judge be satisfied by affidavit or otherwise of the plaintiff's equity; and any court or judge may require that reasonable notice shall be given to the adverse party, or his attorney at law, or in fact, of the time and place of moving for it, before the injunction is awarded, if in the opinion of the court or judge it be proper that such notice should be given.

After an injunction is awarded or denied in any such case, at any time prior to final adjudication, any party to the proceedings, after reasonable notice to all other parties of record, which notice shall not in any case exceed five days, may move for a hearing on any particular issues or phases of the case which may properly be heard interlocutorily. Such hearing may, in the discretion of the court or judge, be had at the time the motion is made but shall be commenced within the ten days next thereafter, unless by consent of all parties appearing the hearing is continued until a later date. At any such hearing, in term time or in vacation, any party to the proceedings may be present in person or by counsel and may present such witnesses, cross-examine witnesses and offer such testimony and evidence as may be pertinent to the issues then before the court or judge, as the case may be. The court or judge, upon such hearing and the record in the case, shall render a decision without delay, and may continue or dismiss the injunction or may enlarge or modify the same, as may be warranted.

Questions may be certified and appeals may be taken in injunction proceedings as in any other cases in equity.

§53-5-9. Injunction bond.

An injunction (except in the case of any personal representative, or other person from whom, in the opinion of the court or judge awarding the same, it may be improper to require bond) shall not take effect until bond be given in such penalty as the court or judge awarding it may direct, with condition to pay the judgment or decree (proceedings on which are enjoined) and all such costs as may be awarded against the party obtaining the injunction, and also such damages as shall be incurred or sustained by the person enjoined, in case the injunction be dissolved, and with a further condition, if a forthcoming bond has been given under such judgment or decree, to indemnify and save harmless the sureties in such forthcoming bond and their representatives against all loss or damages in consequence of such suretyship; or, if the injunction be not to proceedings on a judgment or decree, with such condition as such court or judge may prescribe. The bond shall be given before the clerk of the court in which such judgment or decree is, and in other cases before the clerk of the court in which the suit is wherein the injunction is awarded. If the bond be not given before the summons is issued, the clerk shall indorse thereon that the injunction is not to take effect until the bond is given, and the clerk who afterwards takes the bond shall indorse on the summons that it is given.

§53-5-10. How surety in forthcoming bond may obtain additional security.

Any surety in such forthcoming bond, or his personal representative, may move for and obtain an order for other or additional security, in like manner as a defendant in the injunction may do.

§53-5-11. Dissolution of injunction in vacation.

The judge of any court in which a case is pending wherein an injunction is awarded may, in vacation, dissolve such injunction, after reasonable notice to the adverse party. His order for dissolution shall be directed to the clerk of such court, who shall record the same in the order book.

§53-5-12. Damages on dissolution; liability of sureties on forthcoming bond.

When an injunction to stay proceedings on a judgment or decree for money is dissolved, wholly or in part, there shall be decreed to the party having such judgment or decree damages, in lieu of interest, at the rate of ten percent per annum, from the time the injunction took effect until such dissolution thereof, on the amount of principal, interest, and costs due on the judgment or decree, proceedings on which are enjoined, and, if a forthcoming bond has been taken in the case, the amount on which such damages shall be paid shall be the sum due on such bond. And in all cases the court or judge dissolving the injunction shall ascertain and enter in the decree of dissolution the amount of principal, interest, damages and costs, including officer's fees and commissions due on the judgment or decree, at the date of the dissolution of the injunction, and shall award execution therefor against the defendant in the judgment or decree, proceedings on which were enjoined, or their personal representatives, with interest thereon from that day till paid, and the costs incurred by the defendant in the injunction in defending the same. And if a forthcoming bond has been given in the case, and the same has been or shall be forfeited, the sureties therein shall be liable for the costs incurred by the defendant in the injunction, as aforesaid, and, to the extent of their liability on such forthcoming bond, for whatever sum remains unpaid on the execution so awarded.

§53-5-13. Dismissal of bill for injunction.

Where an injunction is wholly dissolved, the bill shall be dismissed with costs, unless sufficient cause be shown against such dismission.