dissenting:
I think the record in this proceeding justifies the issuance of a writ of prohibition, and therefore, I respectfully dissent.
It is admitted by the demurrer of the respondent Bryant, the justice and the Judge of the Circuit Court of Kanawha County, that the judgments obtained by Bryant were rendered on a cause of action which had been split and two actions brought before the justice.on a single debt. In such situation, the justice had no jurisdiction to render judgments in either of such actions and the judgments so rendered are void. State v. Casto, 136 W. Va. 797, 68 S. E. 2d 673, 677. The instant proceeding is distinguishable from Sperry v. Sanders, 50 W. Va. 70, 40 S. E. 327, where the validity of the judgment was in question.
The judgments rendered by the justice, which are the *215basis of the suit to sell the land of the Crawfords, being void, no execution could issue thereon. “ * * * a void judgment is in reality no judgment at all. It is a mere nullity”. Black on Judgments, Second Edition, Section 170.
As a prerequisite to the issuance of a valid execution, there must be a valid judgment. Farmers Bank v. Montgomery, 11 W. Va. 169; Louther v. Davis, 33 W. Va. 132, 10 S. E. 20. See Blair v. Henderson, 49 W. Va. 282, 38 S. E. 552; Maxwell, Adm’r. v. Leeson, 50 W. Va. 361, 40 S. E. 420; Shackelford v. Apperson, VI Gratt., 451; Evans, trustee v. Greenhow & als., XV, Gratt.
The general rule as stated in I Freeman on Executions, Third Edition, Page 282, et. seq. reads as follows: “An execution * * * upon a void judgment * * * would undoubtedly be void.” Another statement of the principle reads as follows: “The general rule is that an execution may not issue upon a void judgment; an execution so issued is itself absolutely void,.” 21 Am. Jur. Executions, §23.
Formerly there were two methods by which a judgment could be enforced against land: By the writ of elegit and a suit in equity. The writ of elegit has been abolished. Code, 1868, Chapter 140, §2; Code, 1931, 56-3-2. Maxwell, Adm’r. v. Leeson, supra, at page 368; Early v. Fogle & Co., 125 W. Va. 466, 24 S. E. 2d 899. All of the authorities in this jurisdiction indicate that since the abolition of the writ of elegit, there is only one way to subject land to the satisfaction of a judgment: By a lien creditor’s suit.
“In order to give a circuit court jurisdiction to entertain a judgment lien creditors’ suit to subject the real estate of the judgment debtor to the lien of the judgment, it must appear that an execution was first issued directed to the sheriff of the county wherein the judgment debtor resides, if a resident of this state, and that such execution was returned ‘no property found’.” [em*216phasis supplied]. Lewis v. Fisher, 114 W. Va. 151, 171 S. E. 106. The Fisher case has not been modified or overruled, and is followed in the cases of Robertson v. Campbell, 117 W. Va. 576, 580, 186 S. E. 310; Price v. Price, 122 W. Va. 122, 127, 7 S. E. 2d 510; Cooper V. Mullenax, 126 W. Va. 256, 258, 28 S. E. 2d 426. The law, as laid down in the case of Lewis V. Fisher, supra, is now in effect in this jurisdiction. Before a court can take jurisdiction of a suit in equity to enforce the lien of a judgment against land, it is a jurisdictional requirement that a valid execution must have been issued and returned “no property found”.
It clearly appears in this proceeding that two void judgments were rendered by the justice, and though it is not alleged or shown in the record that any executions have been issued on those two judgments, that omission is not material, since it matters not whether they have or have not been issued, any execution, if issued on those void judgments, would likewise be void. That state of facts prevents the jurisdiction of the Circuit Court of Kanawha County from attaching in the suit to sell the Crawfords’ land. If that court should entertain the judgment lien creditor’s suit in this instance, the court would be acting without jurisdiction, no valid execution on the judgments having been issued. Lewis v. Fisher, supra.
The Circuit Court of Kanawha County, being without jurisdiction to entertain, hear and determine the lien creditor’s suit, a writ of prohibition should issue, even though there is a remedy by appeal.
The genesis of the principle just stated will be found in Coal Corp. v. Herndon, 101 W. Va. 445, 449, 132 S. E. 879, where it is said, “The other points are to the effect that petitioner coal corporation has other adequate and complete remedies by way of appeal, or, not being a party, could obtain relief by bill of review. The answer to' this is that prohibition is a writ of right made so by the statute * * * and petitioner may elect to pursue it rather than to proceed by some other method. It is a *217quick, inexpensive and adequate method of stopping litigation where there is no jurisdiction. Why wait the tedious length of chancery litigation to ascertain if the very foundation of the case, jurisdiction, is wanting?”. To the same general effect are the holdings of this court in Wolfe v. Shaw, Judge, 133 W. Va. 735, 738, 169 S. E. 325; Morris v. Calhoun, 119 W. Va. 603, 195 S. E. 341; White Sulphur Springs v. Ripley, 124 W. Va. 486, 491, et. seq. 20 S. E. 2d 794; Barnes v. Warth, 124 W. Va. 773, 775, 22 S. E. 2d 547. See State v. Easley, 129 W. Va. 410, 414, 40 S. E. 2d 827; Cosner v. See, 129 W. Va. 722, 748, 42 S. E. 31; Staley v. Hereford, 131 W. Va. 84, 45 S. E. 2d 738; Fisher v. Bouchelle, 134 W. Va. 333, 337, 61 S. E. 2d 305.
Furthermore, it may be well to observe that the fact that the circuit court has jurisdiction of proper judgment lien suits, which is not the case in this proceeding, and that the lack of jurisdiction may be urged on an appeal does not prevent or preclude the award of a writ of prohibition.
It is also to be further observed that the case of Sperry V. Sanders was decided November 6, 1901, more than fifty years ago, while practically all of the cases cited, with reference to the question whether a writ should be denied because of the existence of a remedy by appeal or writ of error, have all been decided since that time, and stand for the proposition that the existence of a remedy by appeal or writ of error does not preclude the award of a writ of prohibition where the basis for such extraordinary remedy exists.
In conclusion, I think that the present lien creditor’s suit pending in the Circuit Court of Kanawha County may be likened to a house without foundation, as the following summary will disclose:
1. There is no method of enforcing a lien of a judgment against land, except by a lien creditor’s suit.
2. The issuance of a valid execution is necessary to *218confer jurisdiction on a Circuit Court of a suit to subject land to the satisfaction of a judgment, and in addition to the issuance of such execution, there must be a return thereof of “no property found”.
3. The executions, if any have been issued on the judgments pronounced by the justice, are void, lacking as they do, valid judgments to support them.
For the reasons set forth, I would award a writ of prohibition in this proceeding.
I am authorized to say that Judge Riley concurs in this dissent.