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Table of Contents Full Table of Contents

1. Court and clerks
2. Motion day
3. Books and records kept by the clerk and entries therein
4. Making transcript or statement of evidence part of the record; authentication thereof, etc.

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Courts and Clerks

Court and clerks

1. Courts always open. — The courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning mesne and final process, and of making and directing all motions, orders, and rules.
2. Trials and hearings; orders in chambers. — Unless otherwise provided by a statute, by these rules, or by other rules adopted by the Supreme Court of Appeals, all trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the circuit; but no hearing, other than one ex parte, shall be conducted outside the circuit if timely objection to doing so is made by any of the parties affected thereby.
3. Clerk’s office and orders by clerk. — The clerk’s office with the clerk or a deputy in attendance shall be open during business hours on all days except Sundays and legal holidays, as defined in Rule 6(a). All motions and applications in the clerk’s office for issuing mesne process, for issuing final process to enforce and execute judgments, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but the clerk’s action may be suspended or altered or rescinded by the court upon cause shown.
4. Notice of orders or judgments. — Immediately upon the entry of an order or judgment the clerk, except as to parties who appear of record to have had notice thereof, shall serve by mail a notice of the entry in the manner provided for in Rule 5 upon every party affected thereby who is not in default for failure to appear, and shall make a note of the mailing in the docket. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed.
5. Waiver of fees and costs for indigents. —
   1. Filing of affidavit of indigency. — A person seeking waiver of fees, costs, or security, pursuant to Chapter 59, Article 2, Section 1 [§ 59-2-1] of the Code of West Virginia, shall execute before the clerk or a deputy an affidavit prescribed by the chief justice of the Supreme of Court of Appeals, which shall be kept confidential in divorce and domestic violence proceedings. An additional affidavit of indigency shall be filed whenever the financial condition of the person no longer conforms to the financial guidelines established by the chief justice of the Supreme Court of Appeals for determining indigency or whenever an order has been entered directing the filing of a new affidavit.
   2. Review of affidavit of indigency. — If it appears from the affidavit that the person meets the financial guidelines, the clerk shall perform the service requested in conjunction with the affidavit. If it subsequently appears to the court that the person did not meet the financial guidelines, the person shall be ordered to pay the required fees, costs, or security, or the court may enter an appropriate remedial order. If it appears from the affidavit that the person does not meet the financial guidelines, the clerk shall inform the person that the service will not be performed without the payment of the appropriate fees, costs, or security, and that the person may request review of the clerk’s determination by the court. If the person requests review of the clerk’s determination, the clerk shall immediately forward a copy of the affidavit to the court. Upon receipt of the affidavit, the court shall, within 7 days, either approve the affidavit, disapprove the affidavit, instruct the person to provide additional information, or schedule an ex parte hearing to determine indigency.
   3. Effect of filing. — The filing of an affidavit of indigency shall be deemed to toll any applicable statue of limitations or other time requirement. This rule does not govern the appointment of counsel or the payment of attorney fees.

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Motion day

Unless local conditions make it impracticable, each court shall establish regular times and places, at intervals sufficiently frequent for the prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of; but the judge at any time or place and on such notice, if any, as the judge considers reasonable may make orders for the advancement, conduct, and hearing of actions. A duly elected special judge may serve on motion day the same as at other times.

To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.

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Books and records kept by the clerk and entries therein

1. Civil docket. — The clerk shall keep a book known as "civil docket" of such form and style as may be prescribed by the Supreme Court of Appeals, and shall enter therein each civil action to which these rules are made applicable. Actions shall be assigned consecutive file numbers. The file number of each action shall be noted on the folio of the docket whereon the first entry of the action is made. All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action and shall be marked with its file number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. When in an action trial by jury has been properly demanded or ordered the clerk shall note the word "jury" on the folio assigned to that action.
2. Civil judgments and orders. — The clerk shall keep, in such form and manner as the Supreme Court of Appeals may prescribe, a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the court may direct to be kept.
3. Indices; calendars. — Suitable indices of the civil docket and of every civil judgment and order shall be kept by the clerk under the direction of the court. There shall be prepared under the direction of the court calendars of all actions ready for trial, which shall distinguish "jury actions" from "court actions."
4. Other books and records of the clerk. — The clerk shall also keep such other books and records as may be required from time to time by the court or by the Supreme Court of Appeals.
5. Recording by Digital or Other Images. — The clerk may keep any and all records and documents, otherwise required by any provision of law to be recorded in a book as described above, in a microphotographic, digital, or other format which employs a process for image-storing of documents in a reduced size. The format must conform to the applicable policy approved by the Supreme Court Administrative Director.

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Making transcript or statement of evidence part of the record; authentication thereof, etc.

1. When transcript of stenographically reported proceedings part of record. — When the proceedings had and testimony taken at a hearing or trial before the court are stenographically or mechanically reported by the official court or other authorized reporter, a duly certified transcript thereof becomes a part of the record of the action when it is filed with the court during the pendency of the civil action or at any time afterward. When the proceedings had and testimony taken at a hearing before a commissioner are stenographically or mechanically reported by the official court or other authorized reporter, a duly certified transcript thereof becomes a part of the record of the action if it is filed with the court before the action is submitted to the court for disposition of the report of the commissioner.
2. How transcript certified. — A transcript of the proceedings had and testimony taken at a hearing or trial shall be certified by the official court or other authorized reporter to be an accurate transcript of the official’s or authorized reporter’s stenographically or mechanically recorded report of the proceedings had and testimony taken at the hearing or trial, and shall state whether the transcript includes all or a part only of the proceedings had and testimony taken at such a hearing or trial; no other or further authentication is necessary. A transcript so certified by the report shall be deemed prima facie a correct statement of the proceedings had and testimony taken at any hearing or trial.
3. Notice of filing transcript. — When a transcript of the proceedings had and testimony taken at a trial is filed with the court, the party causing it to be filed shall promptly give notice thereof to all other parties.
4. Correcting the transcript. — On motion served by any party and therein assigning error or omission in any part of any transcript of the proceedings had and testimony taken at a hearing or trial, the court shall settle all differences arising as to whether such transcript truly discloses what occurred at the hearing or trial and shall direct that the transcript be corrected and revised in the respects designated by the court, so as to make it conform to the whole truth.
5. Use of statement of evidence in lieu of transcript. — In the event a stenographic or mechanical report of the proceedings had and testimony taken at a hearing or trial before the court was not made or in the event a reporter’s stenographic or mechanical record thereof has become lost or a transcript thereof is not obtainable, any party to the action may prepare a statement of the proceedings from the best available means, including the party’s recollection, for use instead of a transcript thereof. The statement shall be served upon all other adverse parties within a reasonable time after the hearing or trial, and the adverse parties may serve objections or amendments thereto within 10 days after service of the statement upon them. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the court for settlement and approval and when and as settled and approved such statement becomes a part of the record when it is signed by the judge and filed with the court.
6. Bills and certificates of exception abolished. — Bills and certificates of exception are abolished.
7. Transcript as evidence. — Wherever the testimony of a witness at a hearing or trial which was stenographically or mechanically reported is admissible in evidence at a later hearing or trial or at a hearing or trial of another action, it may be proved by the transcript thereof duly certified by the official court reporter or other authorized person who reported the testimony.