(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.