Opinion
No. 7192
Submitted May 3, 1932.
Decided May 17, 1932.
Error to Circuit Court, Kanawha County.
Proceedings by Nick Pollos for writ of prohibition to be directed to S.V. Morris and others. A demurrer to the petition was sustained, and petitioner brings error.
Affirmed.
Sherman H. Eary, for plaintiff in error.
This is a proceeding in prohibition brought in the circuit court. A demurrer to the petition was sustained and the petitioner secured a writ of error here.
The petition alleges in brief: That the petitioner is in the restaurant business at 715 State Street, in the city of Charleston; that on October 13, 1931, S. V. Morris, a justice, at the instance of Samuel Bowen issued a distress warrant for rent against the goods and chattels of Arthur Mitros at 713 State Street; that the warrant was directed to D. V. Howery, a special constable who executed the same on the property of Mitros and, as the petition charges, "unlawfully seized and distressed and locked the building at 715 State Street which was occupied by your petitioner, and has since the 22nd day of January, 1930." The petition prays that the justice be prohibited from "holding the matter aforesaid of and concerning the premises aforesaid further before him, and to prohibit the said D. V. Howery and Samuel Bowen from further proceeding in the premises."
Under State ex rel. Mitros v. Morris et al., (W.Va.) 161 S.E. 576, the justice had no authority to appoint a special constable to execute the distress warrant. But the warrant related only to property of Mitros at 713 State Street; and since the petition shows no privity whatever between the petitioner or the business at 715 State Street and Mitros, the petitioner has no right to prohibit the justice merely for proceeding illegally against Mitros. There is no allegation that the justice directed, approved, held, or had anything whatsoever to do with the seizure and detention of the property at 715 State Street. That conduct is chargeable to the constable alone. So there is no act of the justice to be prohibited in relation to 715 State Street, and prohibition does not lie to a mere executive officer, such as a constable. State ex rel. Noce v. Blankenship, 93 W. Va. 273, 116 S.E. 524.
The ruling of the circuit court is accordingly affirmed.
Affirmed.