(dissenting), said :
This is an application by the petitioners, George Richardson and others, to this court for a writ of mandamus to compel the judge of the county court- of Prince Edward to hear and decide a contested election case, under section 106 of the Code of Virginia. That section provides: “ Sec. 160. The returns of elections of county, corporation and district officers shall be subject to the inquiry, determination, and judgment of the court of the county or corporation wherein the election was held, upon the complaint of fifteen or more qualified voters of such county, corporation, or district, of an undue election or false return. If the objection be to the legality of the election, or the eligibility of the person receiving the certificate, the complaint shall so state, and the nature of the objection. If the objection be on the ground of votes-improperly- received or rejected, the complaint shall set forth a list of such as were improperly received, with the objections to each, and of-the votes improperly rejected. Two of the persons making the complaint shall take and subscribe an oath,” etc. -Provides that a notice shall be served within ten days on the person *771whose election is contested, otherwise the complaint shall not he valid; and that the court shall proceed to determine the contest without a jury, on the testimony taken, and upon any legal testimony adduced by either party. In judging of such election and return, the court shall proceed on the merits thereof, and decide the same according to the constitution and the laws. When the contest is decided, a certificate of election shall be granted to the successful party, unless he shall have already received one, etc. The answer of the judge sets forth that, as judge of the county court of Prince Edward county, at the July and August terms of said court for the year 1891, he heard and determined a complaint wherein petitioners were complainants, and W. II. Ewing, treasurer, T. II. Dickinson,' sheriff, and E. T. Clark, commissioner of the revenue for said county, ■ and sundry district officers were joint defendants. Each of said defendants appeared and filed a separate motion to quash and dismiss the said complaint, upon the ground stated in writing — the county officers upon the ground of misjoinder of parties having separate- and no community of interest, and the district officers upon this and the further ground that the requisite number of petitioning citizens required by the statute did not reside in any one district of said county, nor were they qualified voters therein. That the said respondent, as judge, was of opinion that these questions were properly determinable before-going further into specific matters complained of. That be considered these motions judicially, and determined them, as in duty bound, in favor of the defendants, and rendered judgment accordingly. That an appeal was taken by the complainants to the circuit court of said county, and there decided on the 3d day of October, 1891.. That said ease was there fully heard and duly determined under section-161 of the Oode of Virginia; and files with his answer the petition for writ of error to the circuit court, arid "the judgment of that court, which affirmed the judgment of the county court. Section 161 of the Code provides for the appeal to the circuit court in such ease, and that the judgment of the said *772circuit court shall be final in the premises. The said petition for a writ of error and supersedeas to the circuit court sets forth that-plaintiffs in error were aggrieved by certain rulings and orders and judgments of the county court. That their complaint having been filed, and the counter-complaint filed, and issue having been thus joined in the only way recognized by the statute, they took their depositions, etc. That the defendants appeared and filed motions to quash and to dismiss the complaint, to which the complainants objected. “ That at the August term the county court pronounced judgment, and sustained the motions; whereupon they prayed leave to amend by severing and filing nunc pro tune their several petitions, and 'this motion was denied them; and assigned errors: First. That the motion to quash was not proper. The defense should have been by demurrer, as is the'Virginia practice. Recomí. That the motion to quash was not made at the proper time. Third. It was error to sustain a motion to quash at any stage of the proceedings in this case for misjoinder. Fourth. That for misjoinder the court could act sua sponte, which had been held in certain cases in the Supreme Court of Appeals of Virginia, and that, even if misjoinder appeared, amendment should have been allowed.” And-finally: “That- complainants say the rulings, orders, and judgments- of the said county court complained of are wholly erroneous, contrary to the statute, contrary to the established rules of judicial procedure in this state, contrary to the text-writers on English rules of procedure, contrary to the decisions of our Supreme Court of Appeals, on this very statute, and tending in their effect to wholly defeat the intent of the statute, and to prevent citizens from undertaking contests in which they will be burdened with so many delays and difficulties.” The circuit court held that there was no error in the judgment appealed from, and affirmed the same.
The complainants were now at the end of their case, as no appeal or writ of error in such case is allowed from the judgment of the circuit court, which is made final by the statute. *773Section 161, Code Va. Having no right of appeal to this court, the said petitioners bring the case here by mandamus. This they cannot do, upon well-settled principles. Speaking of the remedy by mandamus, this court said in the case of Page v. Clopton, Judge, 80 Gratt. 418: “In relation to courts and judicial officers, it [the writ of mandamus] cannot be made to perform the functions of a writ of error or appeal or other legal proceeding to review or correct errors, or to anticipate and forestall judicial action. It may be appropriately used, and is often used to compel courts to act where they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide when they harm the jurisdiction, but not to predetermine the decision to be made ; to recpiire them to proceed to judgment; but not to fix and prescribe the judgment to be rendered; ” citing numerous decisions. Com. v. Justices of Fairfax County Court, 2 Va. Cas. 9; Dawson v. Thurston, 2 Hen. & M. 132; King William Justices v. Monday, 2 Leigh, 165; U. S. v. Lawrence, 3 Dall. 42; Ex-parte Crane, 5 Pet. 190; Ex-parte Roberts, 6 Pet. 216; Ex-parte Bradstreet, 7 Pet. 634; Ex-parte William Haney, 14 How. 24; Insurance Co. v. Wilson, 8 Pet. 291; Insurance Co. v. Adams, 9 Pet. 571; Ex-parte Hoyt, 13 Pet. 279; Ex-parte Cutting, 94 U. S. 14; Ex-parte Coster, 7 Cow. 523 ; People v. Judges, 1 Wend. 73.
In addition to the foregoing cases in the Supreme Court of the United States, I have examined every reported case decided in that court on the subject of mandamus, and there is no case in conflict with these rulings. In the case of Ex-parte Bradstreet supra, a case in Avhich the aatíí Avas aAvarded upon other grounds, the court said, the opinion being delivered by Chief Justice Marshall: “ This court is of opinion that it ought not to exercise any control over the proceedings of the district court in alloAAÜng or refusing to alloAv amendments to the pleadings.” And the Avrit issued to compel the judge of the *774lower court to allow proof of the amount involved, so as to determine, according to law, whether, without regard to the merits, the parties had a right to appeal, the amount being alleged to be over $2,000, the jurisdictional sum in that court. An interesting case in that court, reported in 14 Wall. 152, decided,in 1872, in the style of “Max Newman and others,” is very full upon the subject, Mr. Justice Clifford delivering the opinion of the court. He said, among other things : “ Applications for a mandamus to a subordinate court are warranted, by the principles and usages of law, in cases where the subordinate court, having jurisdiction of the case, refuses to hear and decide the controversy, or where such a court, having heard the cause, refuses to render judgment or enter a decree in the case; but the principles and usages of law do not warrant the use of the writ to re-examine a judgment or decree of a subordinate court in any case, nor will the writ be issued to direct what judgment or decree such a court shall render in any pending case, nor will the writ be issued in any case if the party aggrieved may have a remedy by writ of error or appeal, as the only office of the writ, when issued to a subordinate court., is to direct the performance of a ministerial act, or to command the court to act in a case where the court has jurisdiction and refuses to act; but the supervisory court will never prescribe what the decision of the subordinate court shall be, nor will the supervisory court interfere in any way to Control the judgment or discretion of the subordinate court in disposing of the question before the subordinate court; ” citing Insurance Co. v. Wilson, 8 Pet. 302; Ex-parte Bradstreet, supra, and other cases. “ Motions to quash in such cases,” says the learned justice in the same case, “ are addressed to the discretion of the court. Confessedly, the petitioners are without remedy by appeal or writ of error, as' the sum or value in controversy is less than the amount required to give .that right; and it is insisted that they ought,, on that account,-to have the remedy sought by their petition. . Mandamus will not lie, it is *775true, when the party may have an appeal or writ óf error; but it is equally true that it will not lie in many other cases where the party is without remedy by appeal or writ of error. The writ of man ticunas will not lie in any case to a subordinate court unless it appears that the court of which complaint is made refused, to act with respect to a matter -within the jurisdiction of the court, and where it is the duty of the court to act in the premises. Superior tribunals may, by mantlet mas, command an inferior court to perform a legal duty -when there is no oth'er remedy, and the rule applies to judicial as well as ministerial acts; but it does not apply at all to a judicial act to correct an error, as -when the act has been erroneously performed. If the duty is unperformed, and it be judicial in its character, the mandate will be to the judge, directing him to exercise his judicial discretion or judgment, -without any direction as to the manner in which it shall be done.”
It is observed that the learned justice says that motions to quash are addressed to the sound discretion of the court, which cannot be corrected by mantlet inns ; that Chief-Justice Marshall, in Ex-parte Bradstreet, supra, said: “ This court is of opinion that it ought not to exercise any control over the proceedings of the district court in allowing or refusing to allow amendments to the pleadings.” It will be remembered in this case that the motion was to quash, and that the decision of the court turned upon a motion to allow amendments to the pleadings, and the court exercised this discretion vested in it by law'-, and refused to ■ allow' the amendments after sustaining the motion to quash. I am of opinion that, an appeal having been taken, and the circuit court, as an appellate tribunal, decided that the county court did right, that no writ of mandamus will lie from this court to compel the county court to reverse its decision, and overrule the motion to quash or to allow-the denied amendments.
But it is insisted that we should compel the county court .to hear the petition on its merits, because the statute ■ authoi’izes *776it to hear and decide on the merits. But the law says the courts must do this in accordance with the laws of this state. The petition in this case, as has been judicially determined by the court vested with the jurisdiction to so decide and determine, is not in accordance with the laws of this state, and that court has quashed it. Before it can hear anything further in the case, it must reverse itself, and overrule the motion to quash, or allow new petitions to be filed nunc pro tunc, as the motion is where the law requires them to be filed within ten days after the election. The supervisory court, established by law in such case, has refused to compel this upon appeal. It cannot be done by this court by writ of error. Hone lies here. It is equally clear that it. ought not to be done by mandamus, which cannot be used to perform the functions of a writ of error. See Wise v. Bigger, Clerk, 79 Va. 269; Nelms v. Vaughan, 84 Va. 697; Grigg & Cross v. Dalsheimer, ante, p. 508; Moon’s Adm’r v. Wellford, 84 Va. 34; High, Extr. Rem. sec. 156; Rex v. Hewes, 3 Add. & E. 725; Reg. v. Recorder, 1 Eng. Law & Eq. 291; 14 Amer. & Eng. Enc. Law, pp. 127-130 — where this branch of this subject is ably and exhaustively treated, and the authorities cited.
Again, mandumus cannot issue to the county court in this case, because the case is not in that court, having been removed therefrom by appeal, and is now in the circuit court. State v. Livsey, (Neb.) 42 N. W. Rep. 762; State v. Lubke, 15 Mo. App. 152. Section 3487 of the Code of Virginia provides: “ If any judgment, decree, or order of a county court be reversed or affirmed, the cause shall not be remanded to said court for further proceedings, but shall be retained in the circuit court, and there proceeded in, unless, by consent of the parties, or for good cause shown, the appellate court directs otherwise.” In this ease no consent was given and no such order was made for good cause shown, and the case was retained in the circuit court.' It has been by law, and upon the petition of the jietitioners here, removed out. of the county court, and it *777would be impossible for that court to try the case again until the order of the circuit, court, removing it has been reversed, and this the county court cannot do. Mandamus should not issue to compel the county court to do an impossibility. In the case of State v. Livsey, J. P., supra, it was held if the relator has removed the case from the jurisdiction of the justice of the peace, and rendered it out of his power to make1 any order in it — which is admitted — mandamus will not issue to compel action. Xo order can be lawfully made in the ease by the defendant, while the case is depending in the district court. An order so made would probably be void. Xo order could be legally made in the cause. In the case at bar the petitioners have themselves removed the case, as they were authorized by law to do, by appeal, into another and higher court, where the statutes require it shall be retained, whether reversed or affirmed. If otherwise they were right, they are now too late. For the foregoing reasons I dissent from the opinion of the majority of the court.
Hixtox, J., concurred in the opinion of Lacy, J.
• Maxdamus issued.