MAGISTRATE COURT PRACTICE
By Dan Fowler
RULES OF CIVIL PROCEDURE FOR MAGISTRATE COURTS
Pursuant to the authority granted it by WV Code 50-1-16, the Supreme Court of Appeals has adopted
Rules of Civil Procedure for Magistrate Courts. The rules apply to all civil cases in magistrate
court and supplement, and in designated instances, supersede the statutory procedures set forth in
Chapter 50 of the WV Code. (Rule I RCPMC). When the magistrate rules are silent on a procedural
matter, the Rules of Civil Procedure for Circuit Courts must be applied. When the rules conflict
with a statute, the rules, rather than the statute control.
JURISDICTION AND VENUE
A. Territorial Jurisdiction
Article VIII, Section 10 of the West Virginia Constitution provides that “the jurisdiction of
magistrate court shall extend throughout the county for which it is established. “This language
necessarily limits a magistrates jurisdiction to the county of election. At times, however, an
individual magistrate may be ordered to temporarily serve outside his/her home county. A circuit
judge may order a magistrate to serve “in any other county within the judicial circuit”, WV Code
50-l-13, and the Chief J usticc may order the magistrate to serve in any county, whether within or
without; the Judicial circuit. When ordered to serve outside ofthe home county, a magistrate’s
authority is “equal to the jurisdiction and authority of a magistrate elected in the county to
which the magistrate is ordered to serve”. WV Code 50-1-13.
Under the provisions of WV Code 50-l-6a, the West Virginia Supreme Court of Appeals is authorized
and empowered to create a panel of senior magistrates to consist of, and to utilize the talent
and experience of retired magistrates. At the time of this writing, rules to implement this
statute have not been promulgated. B. Civil Jurisdiction
1. West Virginia Code 50-2-1 provides that except as limited in that particular section of the
Code, and in addition to jurisdiction granted elsewhere, magistrate court jurisdiction in civil
actions extend as follows:
a. Where the value or amount in controversy or the value ofthe property sought, exclusive of
interest and costs, is not more than $5,000.00.
b. Matters involving unlawful entry or detainer of real estate so long as the title to real estate
is not in dispute and “regardless of the amount in controversy.” State ex rei. Strickland v.
Daniels 318 S.E.2d 627 (1984).
c. Actions on bonds given pursuant to the provisions ofWV Code 50-1-1, et seq.
d. Entertainment of actions in regard to the postjudgement process issued from magistrate
2. Magistrate court jurisdiction is expressly prohibited in the following instances:
a. Actions in equity.
b. Matters in eminent domain.
c. Matters in which title to real estate is in issue.
d. Proceedings seeking satisfactions of liens through the sale of real estate. e. Actions for
f. Actions for malicious prosecution. g. Actions for libel or slander.
h. Extraordinary remedies such as mandamus, habeas corpus and prohibition. i. Class actions.
3. Magistrates, as well as magistrate court clerks and magistrate assistants, are given
specific authority to administer any oath or affirmation as well as to take any affidavit or
deposition, unless otherwise expressly prohibited by law, and may also take, under such
regulations prescribed by law, acknowledgment of deeds and other writings WV Code 50-2-1.
Article VIII, section 10 of the West Virginia Constitution provides that venue for magistrate
court shall be “as prescribed by law.” Pursuant to that authority, the legislature specifically
granted me magistrate court the same venue as applies to circuit courts. WV Code 56-1-1, et seq.
COMMENCEMENT OF ACTIONS
A civil action is commenced by filing, in person or by mail, a complaint with a magistrate or
magistrate court clerk. The complaint should be on the form provided by the court for the
particular type of action sought to be initiated. The filing fee is dependant upon the amount
of damages sought to be recovered in the complaint. Fees are waived if the plaintiff files a
“financial affidavit alleging that he or she is financially unable to pay the same. WV Code 50-3-1
Through WV Code 50-4-1 states that there is only “one form of civil action in magistrate court” in fact,
the section creates two types complaints: That filed by a commercial creditor, and that filed by
all other plaintiffs.
The latter complaint need only be a “short and plain statement of the claim showing that the
plaintiff is entitled to relief.” There must be “a demand for judgment for the relief
that plaintiff seeks.” Rule 2, RCPMC.
A commercial creditor, on the other hand, must include in its complaint “the amount of the
original obligations, the portion thereof which constitutes principle, the portion thereof
which represents interest, and date and amount of payments thereon, the amount, if any,
credited for the sale of repossessed collateral and the amount alleged to be due.” WV Code
Additionally, the Supreme Court of Appeals has held that it is improper for a commercial creditor to recover on
several separate and distinct accounts by consolidating them into one claim. Each original
obligation must be set forth in the detailed manner required by the statute. A complaint for a
commercial debt that fails to set forth the information required by the statute as to each original
debt may be found to have violated the defendant’s right to due process, rendering void all
subsequent proceedings before the magistrate court. State ex rel. Frieson v. Isner,
285 S.E.2d 641 (W. Va, 1981). For purposes of the statute oflimitations, an action is considered
commenced when the complaint is filed and the fee paid or financial affidavit filed in lieu of such payment.
West Virginia Code 50-4-13 allows the institution of a civil action in “any county.” The magistrate
court in which the action is filed, if not having jurisdiction or venue itself, simply forwards the
papers and fees to the court of the “appropriate county.”
NOTE: A financial affidavit filed in lieu of payment of costs is subject to inquiry by the
magistrate court clerk and/or magistrate; however, neither a magistrate nor any other court
personnel may question the truth of such affidavit and the action shall be instituted irregardless.
SERVICE OF PROCESS
West Virginia Code 50-4-4 mandates that service of process in magistrate court civil matters be
made in the same manner as provided for by Rule 4 RCP for trial courts of record. Service of
process; may be made by the sheriff, his deputy, the sheriffs civil process servers or by any
“credible person” over eighteen years of age who is not a party, except that “an attorney for a
party shall not serve original process.”
NOTE: West Virginia Code 55-3A-1 permits service of process for wrongful occupation or residential
rental property by certified mail, return receipt requested.
RETURN; TRIAL DATE; ANSWER; SERVICE OF ANSWER; BOND
West Virginia Code 50-4-5 requires that each summons issued notify the defendant that he
must appear or otherwise notify the magistrate court of his desire to contest the action within 20
days from the date of service. (Rule 4, RCPMC). The answer period is extended to 30 days where
service is made; upon an agent or attorney in fact. If the matter is contested, the magistrate,
upon receipt of the answer sets a trial date.
The answer under Rule 4 RCPMC must deny the plaintiff’s complaint, or else admit the
plaintiff’s claim but give a clear and simple statement as to why the plaintiff is not entitled to
the relief requested in the complaint. The defendant may also assert such affirmative defenses as
accord and satisfaction, arbitration and award, res judicata, etc. Failure of the defendant to
state an affirmative defense in the answer does not preclude the defendant from raising an
affirmative defense at trial. Rule 4(d) RCPMC.
Service of an answer, which is the responsibility of the defendant, may be done by sending the same
by first class mail to the plaintiff or if the plaintiff is represented, to his attorney, or by
delivering a copy to the party or attorney personally, leaving the copy at his office or leaving
it at his usual place of abode with some member of his family above the age of 16 years. Rule 8
RCPMC. In those instances where the plaintiff is a nonresident and a bond is properly requested by
the defendant, the magistrate is obligated to require a bond in a just and reasonable amount to
cover the defendant’s court costs in the event that the plaintiff does not prevail. The magistrate
may dismiss a case against the defendant if the plaintiff fails to post the required bond
before trial, WV Code 50-3-5 and 50-4-12.
NOTE: In matters involving unlawful entry or detainer or wrongful occupation of residential
rental property, an answer or appearance must be filed or made within five days after service.
WV Code 50-4-5 and 55-3 A-1. The latter also requires that the tenant’s defenses be submitted in
writing to the party initiating the complaint.
OTHER CLAIMS AND PARTIES
West Virginia Code 50-4-9, as well as Rule 5 RCPMC, authorizes the defendant in a civil action, at
any time within 20 days after service of process on him, to file a counterclaim, to be stated
together with his answer without additional cost.
All counterclaims in magistrate court have been held to be permissive, so a defendant who fails to
assert a counterclaim is not precluded from later instituting an action on such claim. WV Code
50-4-9 and Rule 5(b) RCPMC. See also Lines v. Ball, 391 S.E.2d 632 (WV 1990).
Though the statute is silent on the matter. Rule 5(c) RCPMC allows for the filing of cross claims
in those instances where two or more defendants are named and one defendant alleges another
defendant it is responsible for plaintiffs damages.
A cross claim may be filed by and against either party defendant and stated together with defendant’s answer without additional cost.
Rule 6, RCPMC provides for what is known under the circuit court rules of civil procedure as
“third-party” practice. The requirement is simply that if the defendant alleges that another person
who is not named as a defendant in the case is wholly or partially responsible to him for
plaintiff’s damages, the defendant may file a complaint against that person. The third-party
claim is initiated as if an original complaint; however, no filing fee is required.
NOTE: Counterclaims filed in response to a wrongful occupation complaint must be asserted within
ten days after service of the complaint. Strickland. supra.
TRANSFER TO ANOTHER MAGISTRATE
West Virginia Code 50-4-7 and Rule 12(a)(2) RCPMC provide for the transfer of a case from, one
magistrate to another when the magistrate before whom the case is pending has interest, prejudice
or bias against a party, or in favor of any opposing party or the magistrate has counseled with the
opposing party regarding the merits of the proceeding. Although 50-4-7 provides for the filing of
an affidavit. Rule 12(a)(2) RCPMC allows such transfer to be requested by pretrial motion and an
affidavit at least 10 days prior to the first date scheduled for trial.
The magistrate disqualified or removed by motion must transfer all matters relating to the case to
the magistrate court clerk for assignment to another magistrate in the county on a rotating basis.
The newly assigned magistrate must set a trial date and notify all parties thereof. If the party
who previously filed the affidavit or motion believes that the new magistrate is also biased or
prejudiced, he may move for the second magistrate to recuse himself/herself and demand a hearing to
show good cause in support of such motion. If the magistrate refuses to recuse, the party may
proceed with a hearing on the merits and appeal the judgment, if adverse, to the circuit court or,
in the alternative, may bring a writ of prehibition against the magistrate. In the latter course of
action, the party must show actual prejudice on the part of the magistrate. See Pritchard v.
Grouser. 332 S.E.2d 611 (WV
REMOVAL TO CffiCUIT COURT
West Virginia code 50-4-8 allows a civil action initiated in magistrate court to be removed to
circuit court.If the action involves less than $300.00, it may be removed only upon the concurrence
of all parties. If $300.00 or more is involved, any party may remove the action. In both
instances, the removal must be done “before trial” is commenced and may be accomplished by motion
pursuant to Rule 12 RCPMC and upon payment of the circuit court filing fee, unless the moving
party has filed a financial affidavit. In determining whether a case involves $300.00 or
more, the courts should “look to the concrete monetary value ofthe matters at stake,” including
the present value of future benefits. Strick]and supra. In StrickJand, the court considered in its
calculation of the amount involved the defendant’s interest in the continued rental ofher apartment
and the obvious expenses incurred in
moving if she was evicted.
SERVICE OF PLEADINGS OTHER THAN SUMMONS AND COMPLAINT
Although WV CodeS0-4-4 authorizes service of process in the same manner as in trial courts, Rule 9
RCPMC specifically provides that every pleading subsequentto the original complaint submitted by a
party must be served by a certificate of service in accordance with Rule 8 RCPMC. This rule
essentially provides that whenever service is required to be made upon a party represented by an
attorney, service shall be made upon the attorney, and in any event, service upon the attorney or
upon the party himself may be made by delivering a. copy to him in person or by mailing a copy via
first class mail to a last known address. The Rule also allows for a copy to be delivered to the
person’s office or at his usual place of abode. Additionally, service by mail is complete upon
The magistrate court is required to send a copy of every notice of hearing or trial and every
ruling or court order to each party or attorney, as the case may be. Service of process for papers
is not required when the defendant does not answer the complaint within 20 days; when the defendant
does not notify the court of his intent to contest the case within the time set within an order of
publication; and when the defendant fails to appear in court when required to do so. See: Rule 8(c)
Rule 9(b) RCPMC requires that all papers subsequent to the complaint carry an endorsement or
appendage by the attorney or by the party certifying that the paper was served as prescribed by
Rule 8 RCPMC or the serving party may file a certificate of acceptance of service signed by the attorney
or party upon whom the paper was served. In both events, the certificate must show the date and
method of service or the date of acceptance of service.
AMENDED OR SUPPLEMENTAL PLEADINGS
Similar to procedures under Rule 15 of the West Virginia Rules of Civil Procedure for circuit
courts, Rule 7 RCPMC allows amended and supplemental pleadings, with leave to be freely granted by
the court. Not only is the filing of an amended pleading or amendment of the pleading by
interlineation freely permitted, it is permitted at any stage of the proceeding. Similar
considerations apply to supplemental pleadings. Additionally, Rule 7 RCPMC provides for
continuances, to meet new matters asserted by way of amended or supplemental pleading in order
to avoid surprise or prejudice.
JUDGMENT BEFORE TRIAL
A. Default Judgment
West Virginia Code 50-4-10 and Rule 10 RCPMC authorize a default judgment procedure if a defendant
in a civil action fails to answer the complaint or otherwise notify the court within 20 days of
service of process of his intention to contest the action, or within five days of service in
matters involving unlawful entry and detainer or wrongful occupation. Before the magistrate may
enter a default judgment, the plaintiff must submit either an affidavit or sworn testimony stating
that the defendant failed to answer, appear or contest the claim; the facts of the case and the
nature of the claim; and what relief the plaintiff requests, including whether it is for a sum
certain or for a sum which by computation can be made certain.
In those instances where the claim is not for a sum certain or for a sum which by computation can
be made certain, the statute and Rule 1O(b) RCPMC mandate that the magistrate require such further
proof, by affidavit or sworn testimony, as is necessary to determine the propriety of the relief
The provisions of Rule 10 RCPMC apply whether the party entitled to the default judgment is a
plaintiff, a third-party plaintiff, or a party who has pleaded a cross claim or counterclaim. Rule
10(c) RCPMC. As in the Rules of Civil Procedure for trial courts, a default judgment may not be
entered where the defendant is an infant, an incompetent, or an incarcerated convict, unless a
guardian or committee is appointed. Rule 10(d) RCPMC.
Relief from entry of default judgment is available if the party against whom it has been imposed
makes a motion to do so within 20 days after entry of judgment and shows good cause. Such a motion
may not be granted ex parte. Upon the filing of the motion, the magistrate is required to set a
date for hearing and to so notify all parties. Rule 17 RCPMC. A default judgment may be set aside
at any time if the court did not have proper jurisdiction. WV Code 50-4-11.
B. Confession of Judgment
West Virginia Code 50-4-10 provides for a procedure whereby the defendant may admit to the truth of
the plaintiff’s claim and agree to pay all or part thereof. The magistrate is required at this
point to take a written statement from the defendant. This is referred to as a confession of
judgment and there upon the magistrate enters judgment for plaintiff plus costs. In the event that
the defendant offers to pay less than the amount sought by the plaintiff, the plaintiff may refuse
to accept the offer and request a trial. If, at trial, the amount of the plaintiffs award is less
than the defendant agreed to pay, Court costs shall be assessed against the plaintiff.
Apart from the statutory provision to confess judgment, the defendant may upon filing an answer,
admit to the complaint and thereby confess judgment by marking the appropriate response on the
answer form. A magistrate does not have the authority to enter a confession in part against the
defendant without notice to and the consent of the plaintiff.
CONTESTED CASES; DISCOVERY; WITNESSES
A. Contested Cases
In those cases where the plaintiff’s claim is contested, and the contest is raised in the
defendant’s answer by the setting forth of such defenses as lack of jurisdiction, improper venue,
insufficiency of service of process, failure to state a claim upon which relief can be granted,
etc., (See Rule 12 RCPMC) the magistrate must set a date for hearing on the procedural, issues “to
determine whether the case should be dismissed, or the service quashed. Rule 12 RCPMC.
A trial on the merits of the case shall be set and notice given by first class mail to all parties
not less than 21 days before such trial date. Rule 11 RCPMC.
Discovery in magistrate court is limited by the provisions of Rule 13 RCPMC. For example, any
party, as a matter of right, may obtain from a magistrate an order directing another party to
submit to a physical examination by a physician. Though styled a “matter of right” the order must
be obtained via a pretrial motion for same and a showing of good cause. The moving party must show:
(I) if the plaintiff, that the defendant has placed his physical condition at issue by way of
defense or otherwise; or
(2) if the defendant, that the plaintiff is claiming relief for physical injury caused by me
The party examined is entitled to a copy of the examining physician’s written report, and after
delivering the same, the party causing the examination is entitled to receive from the opposing
party any like reports, previously or thereafter made, of the same physical condition.
Rule 13 further provides upon motion of any party showing good cause, and with proper notice, the
court may order another party to produce documents and things for inspection and reproduction by
the other party. The items sought must contain relevant evidence which is not privileged and which
is in the possession, custody or control of the party against whom production is sought.
Additionally, the court may also allow entry upon the land of another party for the purpose of
inspecting, measuring, surveying or photographing property that is relevant to the pending
action. In these instances, the court may, by order, prescribe the circumstances of such
If a party fails to comply with a discovery order, the magistrate may order that the matters
regarding the character or description of the property or contents of the paper for the physical
condition of the party, or any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party obtaining the order; refuse to
allow the disobedient party to support or oppose designated claims or defenses or prohibit such
party from introducing in evidence testimony, or from introducing evidence of physical conditions
or, may stay further proceedings until the discovery order is obeyed.
When documents are in the custody and control of a nonparty, a subpoena duces tecum is authorized
to accomplish the discovery, Rule 14(b) RCPMC.
Rule 14 RCPMC provides for the issuance by the magistrate or his/her assistant, upon request of the
parties, a subpoena (or a subpoena duces tecum) commanding the person to whom it is directed to
attend and give testimony and to poduce books, papers, documents or tangible things designated in
the subpoena. Service of the subpoena is made in the same manner as provided for in Rule 4 R.C.P.
for trial courts of record.
DISMISSAL OF ACTIONS
West Virginia Code 50-4-1 provides for dismissal of civil actions for lack of jurisdiction if at
any time the magistrate determines the action involves a matter outside of or an amount in excess
of the jurisdiction of the magistrate court. Such dismissals are without prejudice but the
plaintiff must bear the costs. However, the plaintiff may at any time, in writing, forgive the amount which may
be in excess of the monetary limitations of the court’s jurisdiction and thereby confer, jurisdiction upon the court.
West Virginia Code 50-4-12 provides for dismissal of an action against the plaintiff with
prejudice, with costs awarded to the defendants. Cited reasons for such dismissal include when the
plaintiff fails to appear and prosecute the action; the plaintiff fails or refuses to testify when
properly required to do so; and the plaintiff fails to give security for costs when properly required to do so.
If, within 20 days after dismissal a party shows good cause for the judgment to
be set aside, the magistrate, upon the filing of a proper motion and the holding of a hearing on
the same, may set aside the judgment and continue the matter or amend the dismissal order to be
Rule 15 RCPMC requires that a magistrate dismiss an action without prejudice and without the
necessity of a motion from either party where:
(1) service of the summons and complaint has not been successfully made upon the defendant within
six months of the initial filing of the complaint or
(2) the defendant fails to file an answer and/or the plaintiff fails to move for default judgment
within six months of service of the summons and complaint upon the defendant; or
(3) an action is pending for more than six months and there has been no order or prodeeding to
If the plaintiff requests to dismiss the case prior to trial, the magistrate shall dismiss; (1)
without prejudice if it be the plaintiffs first request to dismiss, or
(2) with prejudice if the plaintiff has previously had the same case dismissed in the magistrate
court or in any other court.
Whenever a case is dismissed pursuant to Rule 15 RCPMC, costs are charged to the plaintiff and the
dismissal has no effect on the right of the opposing party to proceed to trial upon the
Rule 12 RCPMC provides for pretrial motions and motion practice. Motions must be in writing and be
filed pursuant to the requirements of Rule 12. Notice of hearing on the motion must be served not
later than 10 days before the hearing unless good cause is shown as to why said Motion was not
filed within the prescribed time period, or there is excusable neglect.
The Rules provide for several specific issues upon which motions can be made, including transfer,
removal, and for continuance or extension of time, or any other motion which, if granted would
require rescheduling of the hearing or trial, or other pretrial motions may be made at any time in
writing prior to trial, or may be made orally or in writing at the time of trial. The magistrate
may, sua sponte, continue the case for a reasonable period of time.
Evidentiary matters will be governed by the Rules of Evidence as applied in trial courts of
record. WV Code § 50-5-1. The Magistrate Court Rules provide for the order of presentation of
evidence, which is consistent with the order of presentation in trial courts, and a party may call
as a witness any other party to the action and may examine such party by asking leading questions.
Rule 6A, RCPMC provides that a party to a civil action in magistrate court has the right to elect
that the matter be tried by a jury when the amount in controversy exceeds twenty dollars or
involves possession to real estate. All parties to such cases shall be notified in writing of
their right to election.
The election must be made in writing by the party asserting the right any time after the
commencement of the action but not later than;
( 1) 20 days after the service of any first timely filed answer to the complaint, or
(2) 5 days after service of the summons and complaint in cases involving expedited proceedings such
as actions for unlawful entry and detainer and wrongful occupation.
When the right to a jury trial is asserted in a case involving an expedited proceeding, the trial
shall be scheduled as soon as a jury panel can be assembled.
Failure to elect with in the relevant time limit constitutes a waiver of the right to trial by
jury. The composition of the jury is six persons who are selected from a panel of ten persons.
RCPMC. The jury trial shall be conducted in the same manner as jury trials in the circuit court
and in accordance with Rule 16, and shall be electronically recorded by the magistrate.
TRIAL WITHOUT A JURY
If the amount in controversy does not exceed twenty dollars, or neither side elects a trial by
jury, a magistrate may hear the evidence and determine the facts without a jury. Additionally,
the magistrate, at any time after the filing of the complaint and with or without motion by the
parties, may conduct such pretrial proceedings as are necessary to aid the disposition of the
case. Rule 11 (b)RCPMC.
JURY VERDICTAND JUDGMENT
A jury verdict is required to be unanimous. However, the parties may stipulate that a verdict of a
certain majority of the jurors shall be taken as a verdict of the jury. Rule 16. Upon receipt of
the jury verdict, the magistrate is required to enter judgment within twenty-four hours.
MOTION FOR A NEW TRIAL
West Virginia Code 50-5-10 and Rule 17 RCPMC provide that within 20 days after judgment is
entered, any dissatisfied party may make a motion requesting that the judgment be set aside and a
new trial held. All parties must be notified of the date and time set for the hearing on the
motion. The magistrate may grant the motion if good cause is shown, ie:, there is newly discovered
evidence that could have a substantial effect on the outcome of the case or, important evidence
was hidden from the court by the opposing party in whose favor judgment was rendered; or, the
verdict is clearly excessive, and cannot be supported by the evidence; or, there was a material
mistake in the application of the law.
APPEALS TO CIRCUIT COURT
West Virginia Code 50-5-12 and Rule 18 RCPMC authorizes any party to a final judgment as a matter
of right, to appeal to circuit court. Notice of appeal shall be filed in magistrate court,
(1) within 20 days after judgment is entered in magistrate court; or
(2) within 20 days after the magistrate has denied a motion for a new trial.
The moving party on appeal is required to post a bond with good security in a reasonable amount,
not less than the reasonable court costs for a new trial in circuit court but not more than the
sum of the magistrate court’s judgment plus court costs for a new trial in circuit court. However,
it is not required for governmental agencies or for a person who files a financial affidavit.
Additionally, if no motion is filed within the 20 day period, the circuit court, within 90
days after the date of judgment, may grant an appeal upon a showing of good cause why the motion
was not perfected within the 20 day period.
In the case of an appeal of a civil action tried in magistrate court before a jury, the
hearing on the appeal before the circuit court shall be a hearing on the record. In the case
of an appeal of a civil
action tried before the magistrate without a jury, the hearing on the appeal before the circuit
court shall be a trial de novo, triable to the circuit court without a jury. WV Code 50-5-12 (b).
In the case of an appeal of a civil action tried in magistrate court before a jury, the circuit
judge shall consider whether the judgment or order of the magistrate is:
a) arbitrary, capricious or an abuse of discretion
b) contrary to constitutional right, power, privilege or immunity c) in excess of statutory
d) without observance of procedure of required by law e) unsupported by substantial evidence, or
f) unwarranted by the facts.
The circuit judge can dismiss the appeal; reverse, affirm, modify or remand it; enter judgment; or
retain the case or retry any portion thereof. The review by the court and a decision shall be
completed within 90 days after the appeal is placed upon the docket of the court.
If, after the appeal is regularly placed upon the docket of the circuit court, neither party brings
the matter on to hearing before the end of the second term thereafter at which it is called for
trial, unless good cause for a continuance is shown, the appeal shall be considered as abandoned
and shall be dismissed at the cost of the appellant unless sufficient cause is shown for a further
continuance, and the judgment of the magistrate court shall stand. No appeal which shall have been
so dismissed by the circuit court shall be reinstated after the close of the next regular term
after such dismissal, WV Code
ENFORCEMENT OF JUDGMENTS
Unless overturned on appeal, a judgment from magistrate court is binding and may be enforced.
Means of enforcement include those procedures set forth in Articles 3, 4, 5, 5-A, 5-B and 6 of Chapter
38 of the WV Code_ except as the same are in conflict with the provisions of the Rules or Chapter 50
of the Code, or are clearly applicable only to courts of record. A writ for enforcement of a judgment may not be issued:
(1) until after 20 days after the judgment is entered, WV Code 50-6-1 or
(2) if a motion for a new trial in the magistrate court is then pending, until after 20 days after
the determination of such motion.
COMPUTATION OF TIME
The Rules also provide for computation of time. Rule 20 RCPMC, as follows:
(1) The day of the act, event or default from which the designated period of time begins to run
should not be included.
(2) The last day of the time period shall be included, unless it is a Saturday, Sunday, or legal
(3) When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays,
Sundays and legal holidays shall be excluded in the computation.
Extensions of time may be granted by the magistrate if all parties to the case agree in writing to
the extension; orifthe existing period has not expired, upon a showing of good cause; or if the
time period has expired, upon a showing of unavoidable cause.
Extensions of time for motions to set aside judgment and time periods for appeal shall not be
extended unless judgment was by default and either service of process or notice of trial was
When a party has received a notice or some other paper by mail and in response must take some
action within a specified period from the date of mailing, 3 days shall be added to such period.
PRACTICE IN SPECIAL AREAS