
    *French v. Noel.
    June Term, 1872,
    Wytheville.
    Absent, Staples, J.
    
    1. Certificate for License to Retail Ardent Spirits—Discretion of County Courts.—A county court ñas a discretion to grant or refuse a certificate for obtaining a license to retail ardent spirits, to a person who has obtained a license to keep an eating house; and the action of the county court is final and conclusive on the question.
    2. Same—Circuit Court No Jurisdiction.—In such case if the judge of the Circuit court allows an appeal from the order of the County court granting the certificate, and reverses and annuls the order, with costs, the said action of the judge and the court, is coram non judice, and of no effect.
    3. Same—Same—Writ of Prohibition—Court of Ap peals.—After the judgment of the Circuit court has been rendered, as well as before, the person injured bjr the judgment may apply to the Court of Appeals for a writ of prohibition, to restrain the appellant and the judge from proceeding to enforce said j udgment.
    This is a case of prohibition. In October 1870, William B- Trench applied to the County court of Montgomery for a certificate for obtaining a license to retail ardent spirits at an eating house, then kept by him, in Christiansburg, in said county. The application was resisted in said court by Jesse A. Noel, whose only interest in the matter was, that he was then the keeper of a hotel in said town. The County court granted a certificate accordingly. The said Noel then applied to A. Mahood, judge of the Circuit court of said county, for a writ of supersedeas to the said order of the County court; which writ was awarded on .the 8th day of October 1870: and at the May term, 1871, of. the said Circuit court a judgment was rendered, that the said order of the County *court be reversed and annulled, and that the said French pay to the said Noel his costs expended in prosecuting said writ. And an execution having been issued upon said judgment, and being in the hands of the sheriff of said county, the said French on the 1st day of July 1871, presented his petition to this court, then in session at Wytheville, praying for a writ of prohibition to be issued to the said judge and the said Noel, to restrain and prevent the said proceedings by and before the said judge and the said Circuit court, as unlawful usurpations of power and jurisdiction. Accordingly, on the same day, a rule was entered, that the said judge and said Noel should be summoned to appear before this court on the 8th day of the same month, and show cause why a writ of prohibition should not be issued according to the prayer of the petition. The rule was duly served on both defendants, and on the return day the defendant Noel appeared in court and filed his answer, in which he insisted that the said County court had erred in granting the certificate aforesaid; and that the Circuit court had jurisdiction to correct the error and reverse the order of the County court. He further insisted, that if no such jurisdiction existed, this application for a Writ of prohibition came too late; being after the proceedings sought t<? be prohibited had been consummated, and when nothing ’ remained to be prohibited. He also said, that after the service of the rule upon him, he had released the costs recovered by him against said French in the Circuit court; and he filed the release with his petition. The case was then continued until the next term of the 'court at Wytheville. At the next term of the court, to wit: on the - day of July 1872, the case was argued by counsel, Mr. Phlegar appearing for the plaintiff, and Mr. Wade for the defendant.
    
      
      He had been counsel in the case.
    
    
      
      Discretion of County Courts.—See Ailstock v. Page, 77 Va. 390, 391: Ex parte Lester, 77 Va. 671. In Welch v. County Court, 29 W. Va. 63, 1 S. E. Rep. 342, the court, citing the principal case and others, said: “But when the subject, upon which the inferior court has acted, is one within its absolute or pure discretion, its action cannot be reviewed.”
    
    
      
      Writ of Prohibition—Court of Appeals.—m Hogan v. Guigon, 29 Gratt. 713, a note is appended by the j udge citing the list of cases of prohibition. See also, foot-note to Hogan v. Guigon, 29 Gratt. 713, as to-when writ of prohibition lies. In Ensign Manuf’g Co. v. McGinnis, 30 W. Va. 532, 4 S. E. Rep. 790, the court said: “In French v. Noel, 22 Gratt. 454. it was held by the court of appeals of Virginia that after the judgment of the circuit court has been rendered, as well as before, the person injured by the judgment may apply to the court of appeals for a writ of prohibition to restrain the appellant and the judge from proceeding to enforce the judgment. And this court, in Hein v. Smith. 13 W. Va. 358, announced the same doctrine.” The court then proceeded to apply this doctrine to the facts of the case at bar.
    
   MONCURR, P.

delivered the opinion of the court:

The court is of opinion that under the act of the General * Assembly, approved June 29, 1870, Session 1869-’70, chap. 174, sections 3 and 27, pp. 229 and 239, the County court of Montgomery county, on the 3d day of October 1870, on the motion of the plaintiff William R. French, had a discretion to grant or refuse to him a certificate for obtaining a license | to retail ardent spirits at his eating house, in Christiansburg, in the said county, in addition to his license to keep an eating house; and the said court having accordingly, on that day, on his motion, granted him such a certificate, the judgment of the said court in that respect was final and conclusive.

The court is further of opinion that the order of the defendant, A. Mahood, judge of the Circuit court for said county, dated the 8th day of October 1870, awarding, on the petition of the defendant, Jesse A. Noel, a supersedeas to the said judgment of the said county court, and all the proceedings which were afterwards had upon the said supersedeas, and especially the judgment rendered upon the same by a Circuit court held for said county on the 9th day of May 1871, pronouncing the said judgment of the said County court to be erroneous, and considering that the same be reversed and annulled, and that the said Noel recover against the said French his costs by him expended in prosecuting the said supersedeas ; and especially also the execution issued upon the said judgment of the said Circuit court, were all' coram non judice, and null and void; the said judge having-no authority to award the said supersedeas, and the said Circuit court having no authority to entertain jurisdiction of the same.

The court is further of opinion, that prohibition is the proper remedy for the-plaintiff in such a case as this, to prevent and arrest the said unauthorized proceedings, and to have them declared null and void; and that the said remedy still continues to exist, notwithstanding the said judgment of the said Circuit court was rendered before the rule was awarded in this case, and notwithstanding *it appears that since the said rule was executed, and pending the proceedings thereon in this court, the said Noel has released the said French from the costs recovered against him by the said judgment of the said Circuit court.

Therefore it is adjudged and ordered that the motion to discharge the said rule be overruled, and that a writ of prohibition be awarded, according to the prayer of the said petition, directed to the said defendants, commanding them to proceed no further upon the said supersedeas awarded by the said A. Mahood, judge as aforesaid, nor upon the said judgment of the said Circuit court; and superseding the said supersedeas, and all proceedings which have been had under the same, and especially the said judgment of the said Circuit court; so that the said judgment of the said County court will continue and remain in full force and effect, as if no such supersedeas had ever been awarded, and as if no such judgment of the Circuit court had ever been rendered, as aforesaid. And it is further adjudged and ordered, that the service of an office copy of this order upon the said defendants shall have the same force and effect as the execution upon them of a writ of prohibition issued in pursuance hereof. And it is further adjudged and ordered, that the plaintiff, William E. French, recover against the defendant, Jesse A. FToel, his costs by him expended in the prosecution of this proceeding. Which is ordered to be certified to the said Circuit court of Montgomery county.

Prohibition awarded.  