In this prohibition proceeding, the respondents, Claude Spurlock, a justice of the peace, and Theodore Allen seek the reversal of an order of the Circuit Court of Cabell County awarding a peremptory writ of prohibition, prohibiting them from proceeding with the trial of a civil action pending before said justice of the peace, instituted by Allen against the petitioner, V. L. Harmon.
Code, 56-6-35, provides: "In the trial of a case at law in which a writ of error or supersedeas lies to the court of appeals, * * * any party may avail himself of any error appearing on the record, by which he is prejudiced, without obtaining a formal bill of exceptions, provided he objects or excepts, on the record to the action of the court complained of * * *." The order of the court awarding the peremptory writ, of course, is a part of the record. No objection was taken to it, and no exception is contained in any formal bill of exceptions, certificate in lieu of a formal bill, or in the order itself. In a law action or proceeding, the entry of an order to which no objection or exception has been taken will not ground a writ of error from this court. In Perry v. Horn Carroll, 22 W. Va. 381, Pt. 3, Syl., this Court said: "If a defendant does not on the record object or except to the judgment of the court in overruling a motion to set aside the judgment entered at the same term of court, the appellate court will not review such action of the circuit court." The above provision of the Code simply expresses in statutory form the holding of this Court in the Perry case, which was decided when the statute read: "A party may avail himself of any error appearing on the record, by which he is prejudiced without excepting thereto." Acts, West Virginia Legislature, 1872-73, 595. See Revisers' notes, Code 1931, 56-6-35. The many decisions of this *Page 635 Court on this point, decided since the Perry case and before the revision of the Code, need not be cited.
In this State there is a clear distinction between legal and equitable remedies, notwithstanding they are administered by the same court. The New York Court, prior to the adoption of its code governing practice and procedure, stated, we think, the correct rule: "* * * Notwithstanding all that has been said and attempted in respect to combining law and equity, the action and administration of the court is perfectly distinct in affording legal or equitable remedies, as much so as when they had to be sought in different courts." Onderdonk v. Mott, 34 Barb. N.Y. 106, 112. The distinction should not be discarded here.
Though, in some respects, a writ of prohibition resembles the remedy of injunction, it is classed among legal remedies.Lyons v. Steele, 113 W. Va. 652, 653, 169 S.E. 481; Davis v.Prunty, Judge, et al., 114 W. Va. 285, 287, 171 S.E. 644. An historical review of the writ indicates that it has been a common law remedy from an early time. Blackstone wrote that "* * * the encroachment of jurisdiction * * * is also a grievance for which the common law (italics supplied) has provided a remedy by the writ of prohibition. A prohibition is a writ issuing properly only out of the court of king's bench, being the king's prerogative writ * * *." II Cooley's Blackstone (4th Ed.), 936. And the court of king's bench, though originally it heard cases which concerned the king, or cases affecting great persons privileged to be tried only by the king himself, gradually became a common law court. 13 Encyclopedia Britannica (14th Ed), 390.
It follows the order of this Court awarding the instant writ of error should be vacated, and the writ discharged as having been improvidently awarded. An order will be entered accordingly.
Writ of error discharged as having been improvidentlyawarded. *Page 636