On September 26, 1942, relators filed their petition and motion praying that the opinion of the Court handed down on September 24, 1942, and the order entered on said date in conformity therewith, be molded and enlarged to require the respondents, members of the Kanawha County Democratic Executive Committee and its officers, to call and cause to be held a meeting of the members of the Democratic party in mass convention for Charleston Magisterial District to select delegates and alternates to attend the Kanawha County Democratic Judicial Convention for the purposes of nominating a candidate for the office of Judge of the Intermediate Court of Kanawha County, and that they be required to call and hold such county convention at a date not later than a specific date to be fixed by this Court.
Relators in their petition and motion state that because of their reliance upon the proposition that the delegates certified by Brown and Lyon, purporting to act as chairman and secretary, respectively, of the Charleston Magisterial District Convention, were entitled to be seated at the county convention, they did not in their original petition in mandamus pray in the alternative that a mass convention be held for the purpose of selecting delegates to a county convention thereafter to be called at such time as this Court might fix. Relators' prayer in the instant petition and motion respecting a mass convention, is for relief not specifically prayed for in their original petition; but in this particular relators rely upon the prayer for general relief contained in their petition.
Relators' counsel say that they are simply asking this Court to "mold the writ". We are well aware of the liberality which this Court has taken in years gone by to mold alternative writs in mandamus cases. In State ex rel. Mount Hope Coal Co. v.White Oak R. Co., 65 W. Va. 15, *Page 685 64 S.E. 630, 28 L.R.A. (N.S.) 1013; and Densmore et al. v.Mercer County Court, 106 W. Va. 317, 145 S.E. 641, this Court, following the early case of Fisher v. The Mayor, Recorder,etc., of the City of Charleston, 17 W. Va. 628, molded the alternative writ to conform with the peremptory writ. In theDensmore case, this Court said in point 2 of the syllabus: "The peremptory writ in mandamus ordinarily follows the command of the alternative writ. Where the exigencies of a case require, however, the peremptory writ, provided it does not enlarge upon the alternative writ, may vary from it. In such case the latter will be amended to correspond with the former." However, the alternative writ has been abolished in this jurisdiction under the provisions of Code 1931, 53-1.
Relators here seek more than the molding of an alternative writ. There is no alternative writ to mold. They are asking this Court, after a case has been regularly heard and decided upon issues made up and the argument of counsel, an opinion rendered therein and an order entered in conformity with that opinion, to permit relators to reopen the case, not upon a petition for rehearing, but for the purpose of amending an original pleading and a final order. Such procedure, if allowed, would permit parties litigant to try their cases in this Court piecemeal, in which event the judgments of this Court, at least in cases in mandamus, would lack finality. The sole question arising upon relators' petition and motion is one of procedure, and lends itself to only one solution, the dismissal of the said petition and motion.
Judges Kenna, Rose and Lovins concur in this memorandum.