H. B. 2194
(By Delegates Staton, Amores and Fleischauer)
[Introduced February 21, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section ten, article four, chapter
fifty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to procedures that
must be followed before default judgment against a person in
active military service of the United States may be rendered
in magistrate court.
Be it enacted by the Legislature of West Virginia:
That section ten, article four, chapter fifty of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-10. Default judgment; confession of judgment.
(a) If a defendant in a civil action fails to appear or
otherwise notify the magistrate court within the time limits
prescribed by section five of this article that he wishes to
contest the action, the magistrate may
enter render judgment as
justice may require as follows:
(a) (1) The magistrate shall
enter render judgment by default only upon affidavit or sworn testimony reflecting the
nature of the claim, whether or not it is for a sum certain or
for a sum which can by computation be made certain, the
defendant's failure to appear or otherwise notify the court
within the time limits prescribed by section five of this article
that he wishes to contest the action and supporting the relief
sought. In the event the plaintiff's claim is not for a sum
certain or for a sum which can by computation be made certain,
the court shall require such further proof by affidavit or sworn
testimony as is necessary to determine the propriety of the
relief sought.
(b) (2)(A) No judgment by default shall be rendered against
a person who is an infant, incompetent person or incarcerated
convict unless such person is represented in the action by a
guardian ad litem, guardian, committee, curator or other like
fiduciary.
(B) No judgment by default may be rendered against a person
in active military service of the United States who has not made
an appearance unless the provisions of 50 App. U.S.C. §520 have
been followed, including the appointment of an attorney upon
motion of a plaintiff.
(b) Upon motion made by the defendant within twenty days
after the
entry date of such judgment,
or, in the case of a
person in the military service, within the time provided by 50
App. U.S.C. §520, the magistrate may, for good cause shown, set
aside the judgment and set the matter for trial.
(c) If a defendant offers to confess judgment at any time, the magistrate shall take the same in writing and
enter render
judgment for the amount confessed plus costs. In the event the
amount claimed by the plaintiff exceeds the amount confessed by
the defendant the plaintiff may request that the matter be set
for trial. If the plaintiff's recovery therein does not exceed
the amount confessed, costs shall be assessed against the
plaintiff.
NOTE: The purpose of this bill is to ensure that federal
procedures for the protection of a civil defendant in active
military service of the United States be followed before a
default judgment is entered.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Staff Note: Federal law (50 App. U.S.C. §520,
inter alia)
prohibits the entry of a default judgment against a person in the
military service without certain steps being taken to protect
that person's interests. The amendment would provide consistency
between federal law and this state's statutory procedural
language on this issue for magistrates.