West Virginia Judiciary

Rules of Civil Procedure: Section VIII

Take me to the top of the page.
Table of Contents Full Table of Contents
  1. Seizure of person or property
  2. Injunctions
    1. Security; Proceedings against sureties
  3. Receivers
  4. Deposit in court
  5. Offer of judgment; payment into court
  6. Executions and other final process; proceedings in aid thereof
  7. Judgment for specific acts; vesting title
  8. Process in behalf of and against persons not parties
    1. Eminent domain
    2. Extraordinary writs

VIII. Provisional and Final Remedies and Special Proceedings

Seizure of person or property

At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the State existing at the time the remedy is sought, subject to the following qualifications: (1) An order for the seizure of specific personal property in an action to recover possession of such property shall be executed forthwith and a return made thereon within 20 days after issuance of the order; (2) an order of civil arrest or attachment shall be executed forthwith and a return made thereon within 30 days after issuance of the order; and (3) a garnishee shall serve an answer within 90 days after service of the order of attachment, unless the answer is waived. The remedies thus available include arrest, attachment, garnishment, order of seizure of specific personal property, sequestration, and other corresponding or equivalent remedies, however designated and regardless of whether the remedy is ancillary to an action or must be obtained by an independent action.


Injunctions
  1. Preliminary injunction.
    1. Notice. — No preliminary injunction shall be issued without notice to the adverse party.
    2. Consolidation of hearing with trial on merits. — Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
  2. Temporary restraining order; notice; hearing; duration. — A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if the party does not do so, the court shall dissolve the temporary restraining order. On 2 days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
  3. Security. — No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court in its discretion deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States, the State of West Virginia and its political subdivisions or of an officer or agency thereof.

    The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule.
  4. Form and scope of injunction or restraining order. — Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Security; Proceedings against sureties

Whenever these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety agent upon whom any papers affecting the surety’s liability on the bond or undertaking may be served. The surety’s liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known.


Receivers

An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice respecting the appointment of receivers and the administration of estates by them or by other similar officers appointed by the court shall be in accordance with the practice heretofore followed in this State. In all other respects, the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by these rules.


Deposit in court

Except as otherwise provided in Rule 68(b), in an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party and by leave of court, may deposit with the court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. The party making the deposit shall serve the order permitting deposit on the clerk of the court. Money paid into court under this rule shall be deposited and withdrawn in accordance with applicable statutes and with orders of the court entered in the action. The fund shall be deposited in a federally insured interest-bearing account or invested in an interest bearing instrument approved by the court.


Offer of judgment; payment into court
  1. Offer of judgment. — At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the defending party’s offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall direct entry of the judgment by the clerk.
  2. Payment into court. — A party defending against a claim may pay into court by depositing with the clerk a sum of money on account of what is claimed, or by way of compensation or amends, and plead that the party is not indebted to any greater amount to the party making the claim or that the party making the claim has not suffered greater damages. The party making the claim may (1) accept the tender and have judgment for the party's costs, (2) reject the tender, or (3) accept the tender as part payment only and proceed with the party’s action on the sole issue of the amount of damages.
  3. Offer not accepted. — An offer under subdivision (a) or (b) above not accepted in full satisfaction shall be deemed withdrawn, i.e., shall not be disclosed to the jury, and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted, or accepted only as part payment, does not preclude a subsequent offer.
  4. Amount or extent of liability. — When the liability of one party to another has been determined by verdict or order of judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

Executions and other final process; proceedings in aid thereof
  1. For payment of money. — Process to enforce a judgment for the payment of money shall be a writ of execution, a writ of suggestee execution and such other writs as are provided by law. The procedure on execution and other such final process, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution or such other final process shall be in accordance with the practice and procedure prescribed by the laws of the State existing at the time the remedy is sought, subject to the following qualifications: (1)A writ of execution shall be made returnable not less than 30 days nor more than 90 days after issuance, as directed by the person procuring issuance of the writ; and (2) an answer to a summons issued in a suggestion proceeding shall be served upon the plaintiff within 20 days after service of the summons; and (3) a return on a writ of suggestee execution shall be made forthwith on the expiration of one year after issuance of the writ.
  2. For possession of property. — When any judgment or order is for the delivery of possession of property, the party entitled to the benefit of such judgment or order may have a writ of possession upon application to the clerk, which shall be forthwith executed and a return on such writ made within 20 days after issuance of the writ.

Judgment for specific acts; vesting title

If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court as a special commissioner and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the State, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law.


Process in behalf of and against persons not parties

When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party.


Eminent domain
  1. Scope of rule. — Eminent domain proceedings in the circuit courts are governed by these rules of civil procedure.
  2. Jury trials. — A jury in an eminent domain proceeding in circuit court shall consist of twelve freeholders who shall meet the requirements of W. Va. Code § 54-2-10.

Extraordinary writs
  1. Applicability of rules. — The West Virginia Rules of Civil Procedure govern the procedure for the application for, and issuance of, extraordinary writs.
  2. Joinder of claims in different writs. — A plaintiff may join a demand for relief which encompass different types of writs and other types of relief.
  3. Complaint.
    1. Caption. — The complaint shall contain a caption as provided in Rule 10(a) except that the plaintiff shall name as defendants the agencies, entities, or individuals of the State of West Virginia to which the relief shall be directed.
    2. Contents. — The complaint shall contain a short and plain statement of the authority for the writ demanded. A form indicating the simplified nature of the extraordinary writ practice as provided for by this provision is contained in the Appendix as Form 32.
  4. Appearance or answer.
    1. Right to relief conceded. — If a defendant agency, entity, or individual concedes the appropriateness of the writ requested, that defendant may serve notice of the concession and the court shall enter a writ granting appropriate relief and may substitute the concession for findings of fact on the need for and the appropriateness of the relief demanded if justice requires.
    2. Answer. — If a defendant agency, entity, or individual contests the plaintiffs’ right to the writ demanded, the defendant shall answer within the time and in the form specified by the applicable provisions of this rule.
    3. Default. — If a defendant agency, entity, or individual fails to answer or otherwise appear, the court shall declare the defendant in default pursuant to Rule 55(a). The court may not enter default judgment pursuant to Rule 55(b) but shall hold a hearing or hearings on the relief demanded and award a writ or writs as justice requires.