#### *Jones v. The Justices of Stafford.

June, 1829.

Mandamus — Right of Circuit to Compel County Court to Open Road.* — A county court rejects an application for opening a new road, on a regular hearing. Held, that an appeal lies from such a judgment; but the circuit court cannot awai d a mandamus to the justices of the county court to compel them to open the road.

Thomas Jones made an application to the county court of Stafford, for a road to be opened in that county. The county court appointed viewers, who duly made their report; whereupon summonses, in the usual form, were directed to the owners of the land through which it was proposed that the road should pass, who appeared, and prayed writs of ad quod damnum; which were awarded, and inquisitions regularly taken thereon, and returned to court. The case being regularly matured for hearing, according to the provisions of the statute, the court decided that the proposed road ought not to be opened. Erom this judgment an appeal was taken to the circuit court of Stafford; which dismissed the appeal, on the ground, that it ought not to have been granted. And, thereupon, Jones moved for a mandamus to be directed to the justices of the county court commanding them to open and establish the road. An alternative mandamus was accordingly issued, commanding the justices to open the road, or shew cause to the contrary. This process was duly served on the justices; but they made no return to it, and shewed no cause against the issuing of a peremptory mandamus; and thereupon, such peremptory mandamus being moved for, the court adjourned to this court, the following questions, 1. Is the mandamus the proper remedy in this case? 2. What judgment should be rendered in the premises?

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Mandamus to Compel Court to Open Road. — The county court cannot be enforced by mandamus to open a road. Doolittle v. County Court. 28 W. Va. 177, citing *.Jones*v. *Justices of Stafford,*1 *Leigh 584.*To the same effect the principal case is cited in State v. County Court, 88 W. Va. 594, 11 S. E. Rep. 74.

UPSHUR, J.

The judgment of the county court in this case, was strictly within the scope of their jurisdiction and powers. They were the proper judges in the first instance, whether the proposed road ought to be opened or not. They «have decided that the public convenience did not require it, and that, all circumstances being weighed, it ought not to be opened. This judgment is conclusive upon the subject, and binding upon all the parties to the record, so long as it remains unreversed. Any party who considered himself aggrieved by that judgment, mig'ht have appealed from it; and if the appeal had been regularly taken and prosecuted, full justice in the premises might have been attained in that mode.

It is unnecessary to decide, whether the appeal that was taken in this case, was properly dismissed or not: for, if not, there was still an ulteriour tribunal, to which the party might have resorted by appeal. Not having done so, the dismissal left the judgment of the county court in full force. The effect of a mandamus, in such a case, would be, to compel the county court to reverse its own decision, and to enter another judgment, contrary to its views of the law and the right of the case. This is strictly the province of an appellate court, but it does not upon any principle, present a proper case for a mandamus.

A mandamus is the proper remedy in certain cases, to compel an inferiour court to proceed to judgment; but we consider it very clear, that an erroneous judgment already pronounced cannot be corrected by that process, in any case where the party may have a different remedy.

The court is of opinion, and doth decide, that the mandamus is not the proper remedy in this case; and, of course, that a peremptory mandamus ought to be refused.