CHARLESTON.

#### Yates *et al. v.*Taylor County Court.

Submitted November 1, 1899

Decided January 24, 1900.

1. *County*— Criminal *Claims*— Actions.

As a condition pi ecedent to the institution and maintenance of a suit against the county court for any demand for a speci- ’ fled sum of money, founded on contract, except an order on the county treasury, such demand must have been presented to the county court, and have been disallowed by it in whole or in part, unless the court refuses to act on such demand by the close of the first session after that at which it is so presented, or of the second session after it is filed with the clerk, pursuant to section 40, chapter 39, of the Code, for presentation. (page 378.)

2. JURISDICTION— *Consent.*

Consent of parties cannot confer upon a court jurisdiction which the law does not confer, or confers upon some other court, although the parties may by consent submit themselves to the jurisdiction of the court. In other words, consent can not confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person. (p. 379.)

8. *Courts*— Jurisdiction. *Limited*— Record.

In courts of limited and inferior jurisdiction, the record must show jurisdictional facts, (p. 379.)

4. Judgment— *Liability*— Process.

In order that a valid judgment may be rendered by a justice of the peace, the suit must be brought against a defendant upon whom is the liability, and service of process upon another and different party will not confer jurisdiction of the 1 subject-matter.' ( 379,)

5. *Judgment*— Donation *Void.*

The judgment of a court ordering or confirming a donation made out of the county treasury without lawful authority is void and will be prohibited, (in 388).

Application by the Taylor County Court for a writ of prohibition against John H. Holt and Thomas G. Yates.

*Writ Granted.*

*377G-. H. A. Ki’NST, for petitioner.

W. K. D. Dent, for respondents.

English. Judge:

Thomas G. Yates was assigned as counsel bv the circuit court of Taylor County to defend one Frank Powell, who was charged with felony; and on the 25th of April 1899, an order was entered bv said court by which he was allowed an attorney’s fee of twenty-five dollars, and the same was ordered to be- certified to the county court for payment. On the 17th of May, 1899, said Yates brought an action before a justice of said county against the county court to recover said claim, in which he alleged he would demand judgment for twenty-five dollars, with interest and costs. The plaintiff, in his complaint, stated that said claim was presented to the county court for payment at its May term, 1899, but does not say that payment thereof was refused. The defendant, in its plea, claimed that the order of the circuit court allowing plaintiff twenty-five dollars for defending Powell was never presented to defendant by its clerk, and that it did nut neglect or refuse to act on the order and certificate, and never disallowed plaintiff’s claim, in whole or in part, and that the certificate of the circuit court did not bind or authorize it to levy on the taxpayers for the payment of the same. The defendant made no further defense, the plaintiff proved his claim, and judgment was rendered in his favor for thé amount claimed, interest and costs. An appeal was taken to the circuit court. On the 23d of September the defendant moved the circuit court to quash the summons, which motion was overruled. The defendant also filed a plea in writing, to which the plaintiff replied generally, and defendant moved the court to reject the plaintiff’s account, indorsed, “Lodged in the clerk’s office 21st day ot September 1899,” which motion the court overruled. The case was submitted to a jury, which found a verdict in favor of the plaintiff for twenty-five dollars, and judgment was rendered thereon against the defendant, which thereupon presented a petition to a judge of this Court, praying that a writ of prohibition be awarded it, to prevent said circuit court from further proceeding in said action; and a rule was awarded, réturnable to the first day of this term. The respondent *378Yates demurred to the petition of the county court, and moved to quash the rule and dismiss the petition.

The question presented for consideration by this record is whether the justice or the circuit court had jurisdiction of the action brought by Yates. Section 41 of chapter 39 of the Code provides that “no suits shall be brought against a county court for any demand for. a specified sum of money founded on contract, except an order on the county treasury, until such demand has been presented to such court and has been disallowed by them .in whole or in part.” See *Chapman*v. *Wayne County*Court, 27 W. Va. 496. In 16 Enc. Pl. & Prac. p. 1132, the law is stated thus: “When the jurisdiction of an inferior court is derived from a statute prescribing the manner of procedure in an action, it may be prevented by the writ of prohibition from departing from the manner prescribed.” See *Wilkinson v.*Hoke, 39 W. Va. 403, (19 S. E. 520); *West*v. Ferguson, 16 Gratt. 270. In *Ex parte Ellyson,*Gratt. 10, it is held: “The writ of prohibition is onty a proper proceeding to restrain a judge from exceeding his jurisdiction, and not to correct an erroneous judgment in a case in which he has jurisdiction.” See *Buskirk v. Judge of Circuit Court,*7 W. Va. 91. High, in his work on Extraordinary Legal Remedies (section 762), in speaking of the writ of prohibition, says: “The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it has by law been intrusted.” And in section 764 the author says: “The appropriate function of the remedy is to restrain the exercise of unauthorized judicial or *quasi*judicial power, which is regarded as a contempt of the State or sovereign, and which may result in injury to the State or its citizens.” The respondent J. H. Holt, denies that he is proceeding without jurisdiction or authority of l_w, but, on the contrary, avers, as is shown by the record filed with the petition, that .said circuit court took cognizance of said cause at the special instance of the petitioner, who now denies the *379jurisdiction of said court, after appealing- to it, simply because the decision was adverse. In 12 Enc. PI. & Prac. p. 126, it is said: “It is accordingly a well-settled and universally applied principle that consent of parties cannot confer upon a court jurisdiction which the law does not confer, or confer upon some other court, although the parties may by consent submit themselves to the jurisdiction of the court. In other words, consent cannot confer jurisdiction of the subject-matter, but it may confer jurisdiction of the person,” — citing numerous authorities. It says also (Id. p. 201): “Every presumption is in favor of the regularity of the proceedings of courts of general jurisdiction, even though the record is silent. The foregoing rules generally apply to courts of limited and inferior jurisdiction, the only difference between courts of general and courts of special jurisdiction being that the record of the latter must show jurisdictional facts.” See, also, *Galpin*v. *Page,*18 Wall. 350, (Syl., point 2, latter clause), 21 L. Ed. 959. The defendant, in its plea filed before the justice, denied that the order of the circuit court allowing plaintiff twenty-five dollars for defending Powell was ever presented by its clerk, or that it neglected'or refused to act on the order, and claims that it never disallowed said claim, in whole or in part; and nothing appears in the record to contradict the allegation. The presentation of the claim to the. county court, and its refusal to allow the same in whole or in part, having been made a condition precedent to the institution of a suit for the same against said court, and it not appearing affirmatively from the record that there had been such action on the part of the county court, we must hold that neither the justice nor the circuit court had jurisdiction to hear and determine this case.

In order that a valid judgment may be rendered by a court, whether of limited or general jurisdiction, the suit must be brought against the party upon whom the liability rests.- In other words, where A. owes a debt, a suit brought against B., and process served upon him, will not authorize the rendition of a judgment against B. for the debt of A. Now, unless this twenty-five dollars was a debt of the county of Taylor, suit brought against said county, and process served on it, would not give the court *380jurisdiction to render judgment on the claim. Was the county in any manner liable? We find no statute fixing the liability for its payment upon the county, and, when we look to the statutes providing for the wants of persons charged with felony, it appears from section 3 of chapter 161 that medical attendance and clothing for persons in jail, charged with felony, shall be paid out of the State treasury.. The service of a stenographer in taking down the testimony on his trial is also thus paid. And section 1 of chapter 159 of the Code provides that the accused shall be allowed counsel, if he so desires, to assist in his defense, a copy of the indictment, and a list of the jurors selected or summoned for-his trial, without fee; and, while this may be interpreted, without expense to the accused, yet, if it is to be paid by the county, why is the statute silent on this point? If the manner of payment is to be governed by the statute controlling the payment of his other necessary expenses, it would be paid by the State, and not by the count}'. There is no statute that even by the most remote analogy makes this twenty-five dollars a charge against the county. If it is claimed that the judgment fixes the liability on the county, and for that reason prohibition will not lie, I answer that it would create a deplorable state of affairs if every claim, however illegal or unfounded, would be made legal and valid by suing before a justice and obtaining a judgment against the county; but, fortunately, such is not the law of this State, and it has been so held in several cases. Prohibitions will lie to prevent the enforcement of judgments, even after executions have been placed in the officer’s hands. In *French*v. Noel, 22 Gratt. 544, (Syl., point 3), it was held 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 said judgement.” See, also, *Hein v.*Smith, 13 W. Va. 358, (Syl., point 3); *Wilkinson*v. Hoke, 39 W. Va. 403, (19 S. E. 520). I am aware that this Court, in the case of *Wells*v. *Town of Mason,*23 W. Va. 456 (a *mandamus*case to compel said town to pay a judgment in favor of Wells for medical services rendered to a pauper, in which town it was not the duty of *381the common council to support the poor residing therein), held, that the judgment in said case conclusively determined that the town was chargeable with the sum for which judgment was rendered, and that the payment of such judgment against a town, however erroneous, if no writ of error has been taken, should be provided for by taxation, and if it be not done, and it cannot be collected by execution, its payment should be enforced by *mandamus.*But this judgment was obtained before the Mason. County court on the 4th of June, 1877, the court at that time being a court of general jurisdiction, and no question was raised as to the jurisdiction. In *Galpin*v. Page, 18 Wall. 350, 21 L. Ed. 959, it was held that: “A court of general jurisdiction, proceeding within the general scope of its powers, is presumed to have jurisdiction to give the judgment it renders, until the contrary appears; and this presumption embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment is given, but of the parties, also. The rule is different with respect to courts of special or limited authority. Their jurisdiction must affirmatively appear by sufficient evidence or proper averment-in'the record, or their judgments will be deemed void on their face.” So, also, in *Pulaski Co.*v. Stuart, 28 Graft. 872, we find that, “where a court of general jurisdiction acts within the scope of its general powers, its judgment will be presumed to be in accordance with its jurisdiction, and cannot be collaterally impeached.” As we have seen, it is different where the suit is brought before a justice. In *Mayer v.*Adams, 27 W. Va. 245. it was held that “the jurisdictional facts necessary to give a court of special and limited jurisdiction a right to act must appear in the record of its proceedings, or such proceedings will be regarded as bad, without any jurisdiction, and therefore absolute nullities.” As to courts of inferior jurisdiction, it is said in 12 Enc. PI. & Prac. 176, that “no presumption is indulged in favor of the jurisdiction of inferior courts exercising special statutory powers not according to the course of the common law, but their records must affirmatively show the facts which confer jurisdiction.”

It may be suggested in this case that the facts proven were not certified, and for that reason it cannot be deter*382mined whether the justice had jurisdiction or not. To this suggestion I reply that no proof could possibly be furnished which would make the debt upon which this suit was predicated the legal debt of the county, and service of process upon the president of the county court could not confer jurisdiction. The'character of the plaintiff’s claim is set forth in his complaint, and while he avers that it was presented to the count};- court for payment at its May term, 1899, he'does not allege that payment thereof was refused, which the statute makes a condition precedent to a suit upon any claim against the county founded on contract. In this case no writ of error could have been obtained irom the judgment of the circuit court, because the amount involved was insufficient, and prohibition was the only remedy. Upon the question as to whether the judgment of the court was conclusive of the fact that the county of Taylor was chargeable with said claim, in the case of *Bodley*v. *Archibald,*33 W. Va. 229, (10 S. E. 392). Snyder, P., delivering the opinion of the Court, held, that “prohibition will lie to prohibit justices, and other petty tribunals which are limited by law to the decision of controversies where the amount falls within a specified sum, from exercising a jurisdiction wholly beyond their authority, even after judgment, but before the judgment has been fully carried into effect, and in such cases the want of jurisdiction may be made to appear by matters *dehors*the record of the proceedings before such inferior tribunals.” See, also, High, Extr. Rem. § 774, and *Manufacturing Co.*v. Carroll, 30 W. Va. 352, (4 S. E. 782), in which the circuit court was prohibited from enforcing a decree after it was rendered.

The character of the claim sued on before the justice in this case is shown by the transcript of the justice’s proceedings, and no new pleadings were filed in the circuit court .on appeal: and this Court will take cognizance of the fact that there is no statute authorizing the payment of such a claim by the county court, or creating- any liability upon the county for thepaj'mentof attorneys appointed by the circuit court to perform such services. Now, while no formal plea to the jurisdiction was filed before the justice, yet facts were stated in the plea which showed that *383no suit could be brought on the claim against the county —First, because the claim had not been presented to the county court and disallowed; and, secondly, because the claim presented was not of sucn character as to bind or authorize the defendant to levy upon the taxpaj^ers for its payment. The statute provides that such pleadings are not required to be in any particular form, but must be such as to enable a person of common intelligence to know what was intended. On the question of jurisdiction of the subject-matter, we find on pages 188, 189,12 Enc. PI. & Prac., the law thus stated: “When the court has no lawful power to act by reason of the fact that such power is not conferred, or is expressly withheld, with regard to the subject-matter of the suit, the parties thereto cannot be said to have waived their objection to the want of power because it is not made at the proper time. Such objection cannot be waived, and is fatal at any stage of the proceedings,” — citing *Beckley*v. *Palmer.*11 Gratt. 625. The recovery of the claim sued on in this case from Taylor County is not authorized by the common law, because the service rendered in defense of said criminal, although it might entitle the plaintiff to compensation, created no liability upon the county to pay the same, and no statute authorizes its payment by the county. In the case of *Norfolk and W. R. Co.*v. *Pinnacle Coal Co.,*44 W. Va. 574, (30 S. E. 196), 41 L. R. A. 414, this Court held that, “although a justice of the peace has jurisdiction of civil actions of debt, he exceeds his legitimate powers whenever he extends such jurisdiction to include matters of controversy or causes of action unknown to the common law, and unauthorized by legislative enactment.” It is manifest that a claim unauthorized by law- is sought to be legalized by service of process on the president of the county court of Taylor County, aud obtaining- a judgment for the amount thereof before a justice, when the justice had no jurisdiction, either of the defendant or the subject-matter. In my opinion, a wi'it of prohibition should be awarded, to prevent the circuit court of Taylor County from further proceeding to enforce the judgment rendered by it upon appeal from said justice’s judgment against the county court of Taylor County.

*384Dent, Judge,

(concurring).

The only question presented in this case is whether the judgment of the circuit court sustaining- an allowance to one of its attorneys, to be paid out of the county treasury, for defending a person charged with felony, by its appointment, is void. If.it is, the writ should go; and, if not, it should be refused, it matters not how erroneous the judgment may be. The legislature has not authorized the allowance of such fees out of the county treasury. Section 1, chapter 138, Code, provides, “A poor person may be allowed by a court to sue or defend a suit therein without paying fees or costs, wherupon he shall have from any counsel which the court may assign him and from all officers all needful services and process, and also the attendance of witnesses without any fees to them therefor, except what may be included in the costs recoverable from the opposite party.” This plainly refers to civil cases alone, and not to criminal. It is provided in section 14, Article III, of the Constitution, that persons charged with crime “shall have the assistance of counsel.” And section 1, chapter 159, Code, provides, “The accused shall be allowed counsel, if he desires it, to assist him in his defence.” Section 7, chapter 161, Code, providing for costs in criminal cases, is in these words: “A sheriff or other officer for travelling out of his county to execute process in a case of felony and doing any act in the service thereof for which no other compensation is provided, shall receive therefor out of the treasury such compensation as the court from which the process issued certify to be reasonable. When in such case an officer renders any service for which no specific compensation is provided, the court in which the case may be may allow therefor what it deems reasonable, and such allowance shall be paid out of the treasury.” This section applies to felony cases only. An attorney is an officer of the court, especially when acting by its appointment in the defense of a person charged with a felony. The services of all other officers of the court are specifically provided for in this or other sections of the law. and it is impossible to conceive of any service xo which this provision is more applicable than that of the appomted attorney for the defense. To appoint an unpaid torney, inex*385perienced or unlearned, to go through the mere form of making a defense undoubtedly falls short'of a compliance with the constitutional provision that the accused shall have the assistance of counsel. It is to keep the letter, but not the spirit, of the constitution. To serve an indigent person charged with felony is to lulfill the constitutional guaranty for the benefit of the people who made the Constitution. To compel an attorney to do so without pay is tyrannous. And ordinarily a defense made by a feeless advocate is a farce, while a proper defense inures to the benefit, integrity, and good name of the State. It is better even that a guilty man should escape, than that the State should be put to the expense and ignominy of confining, feeding, clothing, and guarding an innocent man by reason of a legal abortion. It seems very plain, then, that this provision was intended to authorize the court to allow a reasonable compensation to an attorney, as one of its officers, for services rendered in defense of a charge of felony. Whether it does or not, there is no provision authorizing such allowance to be made out of the county treasury. The common law on this subject is stated to be that: “It is a part of the general duty of members of the bar to act as counsel for persons accused of crime, and destitute of means, upon appointment by the court, when such service is not inconsistent with their duty to others; and in such cases they must look alone to the possible future ability of the accused to pay for their compensation where no provision for compensation is made by statute. No implied liability arises on the part of the county or State to pay for such services.” 3 Am. & Eng. Enc. Law, (2d Ed.) 417,. 418; Where the State deprives a person of his liberty or his life, his possible future ability is most too remote to look to alone for compensation for legal services. “An attorney is an officer of the court, and he takes his office with’ all its burdens as well as all its rights and privileges; and1 among the burdens thus assumed is that of being obliged, when requested by the court, to conduct without compensation the defense of-those who are destitute of means, and are accused of crime.” Cooley, Const; Lim. (4th Ed.) 412.. And in the case of *Presby*v. *Klickitat Co.*(Wash.) 31 Pac. 876., it is said: “In some instances, no doubt, it is a hard*386ship upon an attorney'' to be obliged to defend poor persons without compensation; but, when called upon, it is a duty he owes to the profession, to the court engaged in the trial, and to the cause of humanity and justice, not to withhold his assistance, nor spare his best exertions, in the defense of one who has the double misfortune to be stricken by poverty and accused of crime.” Thus, individually, in the cause of humanity, he must take upon himself, through Christian charity, the obligation that belongs to, and has been assumed by, society. If one is poor and needy, although he be just as poor and needy himself, he must generously give his time and labor free of charge, that the public, which is rich inlands and .resources, may escape the burden. Such, however, is the law of this State, unless, as heretofore shown, it is changed by statute. A different rule entirely prevails in Indiana and Wisconsin, and in some other states the statutes have made proper provision for such cases. In the case of *Webb*v. Baird, 6 Ind. 17, it is forcibty said: “That any class should be paid for their particular services in empty honors is an obsolete idea, belonging to another age, and to a state of society hostile to liberty and equal rights. The leg-al profession having been thus stripped of all its odious distinctions and peculiar emoluments,-the public can no longer justly demand of that class of citizens any gratuitous services which would not be demandable of every other class. To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant or mechanic. The law which requires gratuitous services from a particular class in effect imposes a tax, to that extent, upon such class, clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation on all citizens. * * * But even charity itself almost ceases to be a virtue when they whose duty it is to provide for the poor make private charity a pretext forjpublic neglect. If the State has not made provision for the defense of poor prisoners, it has presumed and trespassed unjustly upon the rights and generous feelings of the bar; levying upon that class a discriminating and un*387constitutional tax. *Blythe*v. State, 4 Ind. 525. It is therefore not their duty, and, under the circumstances, if no constitutional provision is made by law, no very great virtue, to encourage public neglect by gratuitous service.” In *Dane Co.*v. Smith, 13 Wis. 585, it was held that it was the duty of the state courts to appoint counsel to defend indigent persons charged with crime, and that the statute requiring them to render such services gratuitously was unconstitutional and void.

The legislature of this State having, to its honor, provided for such compensation out of the State treasury, precludes the idea that in any event such compensation could be made a charge against the county treasury, and any allowance made out of the same is a pure donation or g-ra-tuity to the State. Whether a poor person, a ward of the county, charged with a'misdemeanor, should not be defended by the count)’, is left for future consideration. It is probably better for counties to support their poor out of jail, where they can assist in their own support, than it is to support them in jail. Hence they have a pecuniary interest in keeping the indigent poor from being confined in jail at public expense. In this light, reasonable compensation paid to attorneys out of the county treasury might not be ill placed, — a drawing at the spigot to stop a leak at the bung. Of course, if the counties can get as good an article gratuitously, it is usually considered public economy to accept it, although thereby the bread be donated from the table of poverty to preserve untouched the ple-thoric coffers of the opulent. A free donation by any court out of the public treasury is void. In section 120, chapter 1, Frem. Judgm., it is said: “If a court g-rants relief which under no circumstances it has any authority to g-rant, its judgment, to that extent, is void; as where it orders a donation out of the public treasury.” And in *Bridges*v. Supervisors, 57 Miss. 255 (a case cited to sustain the text), it is said: “The circuit court was equally powerless to make such an appropriation, and its judgment ordering it, if the nature of the claim appeared by the record, w’ould have been a nullity. Certainly no additional validity would have been given to it by submitting the claim to a jury. Fortunately there is no provision in our laws *388by which any court is authorized to determine that a donation shall be made out of the public treasury. Courts may enforce the legal or equitable rights of parties, but they are without jurisdiction to adjudicate and enforce claims which rest solely on motives of generosity.” In such cases of donation, ordinances and statutes are held to be void. Judgments are no more sacred. *Ohio Valley Iron Works*v. *Town of Moundsville,*11 W. Va. 1; *Citizens' Savings and Loan Ass'n*v. *City of Topeka,*20 Wall. 655, 22 L. Ed. 455; *Parkersburg v. Brown,*106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238. Courts may hear and determine, but cannot legislate. Rendering judgments without law is legislation. *Norfolk and W R. Co.*v. *Pinnacle Coal Co.,*44 W. Va. 574, (30 S. E. 196), 41 L. R. A. 414. The donation being void as a usurpation of power, a judgment founded upon it is void for the same reason. This would seem to militate against the decision of this Court in the case of *Wells*v. *Town of Mason,*23 W. Va. 456. On page 465 Judge GreeN says: “Rut the Court did not, in this or in *deny*other case that I have seen, undertake, when asked to issue a *mandamus*to compel a town to pay a judgment, to inquire-into the legality of the judgment, or whether the debt for which the judgment was rendered was legallv a just debt against the town.” The same maybe said in this case, but where the judgment shows on the face of the record its *void*character, the court will not only refuse to enforce it by *mandamus*but will prohibit its enforcement by prohibition. In that case there was nothing on the face of the record to show that the judgment was void. It was rendered for services of a physician to an indigent sick person living in the town. The town claimed that the county should pay it, as in this case the claim is that the State should pay. In that case the litigation was before the county court, which gave judgment against the town. In this case the litigation is before the circuit court. In that case it was impossible to say the town was in no event liable for the payment of the claim sued on; for it was liable in certain contingencies which might have been made to appear on the trial, as since decided by this Court in the case of *Thomas*v. *Town of Mason,*39 W. Va. 526, (20 S. E. 580), 26 L. R. A. 727. But in this case, as shown on the *389face of the record, the county was in no event liable to pay the claim sued on; it being a donation out of the county treasury bv the circuit court, without legal authority to make such allowances. It was a mere gift, from want of legal consideration to support it. Physicians have never been required to give their services gratuitously to poor persons. It is otherwise with lawyers, and they are still under such disability, unless relieved by statute. In felony cases the county treasury is still closed to them. The State treasury is unlocked, though carefully guarded, and a reasonable compensation should not be denied them for the faithful discharge of the duties imposed on them as officers of the court. Though reluctantly, the prohibition must be awarded as prayed. I concur in the syllabus and conclusions, but not in the opinion of English, J., in its entirety.

Bkannon, Judge,

(concurring.)

Had the justice jurisdiction of this case? Was his judgment against the county court for a lawyer’s fee allowed by the circuit court for defending one accused of felony utterly void, so as to warrant prohibition, or was it merely erroneous, because of error of judgment in granting recovery upon a claim constituting no basis of action? All the members of this Court are of the opinion that a circuit court cannot allow an attorney for such service, payable out of the county treasury. The county court cannot make an allowance, to be paid by taxes on the people, without' statutory authority; and no statute authorizes it to make an allowance for such a demand. But that does not settle the question. The justice has jurisdiction of a suit for money due on contract. The particular demand may not warrant recovery in law, but that does not show he has no jurisdiction of the case; and merely because he holds that a demand, not in law warranting the recovery, does justify recovery, does not render his judgment void. It is only, erroneous, and the fact that it is for too small an amount to warrant an appeal does not alter the case. “In the case of an inferior court, if its record does show that facts necessary to give it jurisdiction existed, its jurisdiction will not be open to attack, nor can proof of *390such facts be demanded, or disproof thereof admitted in collateral proceedings.” *Cecil*v. *Clark,*44 W. Va. 659 (30 S. E. 216) (Syl-, point 12). This case was appealed to the circuit court, and it is the judgment of that court that is sought to be prohibited. If it were a judgment of that court in an original action in it, not on appeal from a justice, it would seem that *Wells*v. *Town of Mason,*23 W. Va. 456, would forbid prohibition, as it holds that a judgment against a town will be enforced by *mandamus,*though rendered for medical attendance on a pauper not chargeable to the town, because the judgment is not void, bur simply erroneous; but I think we must regard the judgment in this case as if rendered by the justice, since, if he had no jurisdiction, neither had the circuit court on appeal. My own individual view is that the justice had jurisdiction. The test of jurisdiction is, has the court power to begin to determine? Has the couri power to take up and examine the merits, and determine whether it can or cannot give judgment on the merits? If so, it has jurisdiction, and its-judgment, though grossly erroneous, is not void. In this case the justice had a right to consider the evidence, and determine whether he ought to render judgment. The only question in my mind is from the fact that the plaintiff filed in the justice’s record the order of the circuit court allowing him the fee, and thus showed 0 by that record a ground of action which the law branded as no ground of action. Still, for myself I think that rendered the judgment merely erroneous, not void. Mjr views are stated in full in the dissent in the case of *Norfolk & W. R. Co.*v. *Pinnacle, Coal Co.,*44 W. Va. 580 (30 S. E. 196), 41 *L. R.*A. 414. I think the decision of the Court in that-case would justify a prohibition in this case, and, following it, not my own personal views, I agree to the award of a prohibition in this case. That case is binding law.

*Writ Granted.*