ENROLLED
Senate Bill No. 260
(By Senators Wooton, Anderson, Bowman, Buckalew, Deem,
Dittmar, Miller, Oliverio, Ross, Schoonover, Scott,
Wagner, White, Wiedebusch and Yoder)
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[Passed March 10, 1995; in effect ninety days from passage.]
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AN ACT to amend and reenact sections six, twelve, thirteen,
fourteen and twenty-eight, article five, chapter fifty-eight
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section thirteen,
article one, chapter fifty-nine of said code; and to amend and
reenact section fourteen, article two of said chapter, all
relating to the activities of the clerk of the supreme court
of appeals; the time required for the clerk of the supreme
court to return the record to the circuit clerk; the service
of an order granting an appeal rather than a summons in
actions when an appeal is granted by the supreme court; the
endorsement by the clerk of the supreme court on an order or
supersedeas pending the posting of a bond; the requirement of
an appeal bond in cases before the supreme court; the
certification of a mandate by the clerk of the supreme court;
fees charged by the supreme court; and the taxation of
statutory fees.
Be it enacted by the Legislature of West Virginia:
That sections six, twelve, thirteen, fourteen and twenty-
eight, article five, chapter fifty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that section thirteen, article one, chapter
fifty-nine of said code be amended and reenacted; and that section
fourteen, article two of said chapter be amended and reenacted, all
to read as follows:
CHAPTER 58. APPEAL AND ERROR.
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-6. Filing of petition; transmission of petition and record;
deposit or bond; return of record; transcript; charges.
Such petition, together with a copy thereof, shall be first
filed in the office of the clerk of the circuit court wherein the
judgment, decree or order complained of was entered, and such
clerk, retaining in his office the copy of such petition, shall, as
soon as may be, transmit to the clerk of the supreme court of
appeals, or such judge of said court as the petitioner shall
designate, if said court be not in session, by United States
registered mail or valued express, the original, together with the
record of so much of the case wherein the judgment, decree or order
is, as will enable the court or judge to whom the petition is to be
presented properly to decide on such petition, and enable the
court, if the petition be granted, properly to decide the questions
that may arise before it. The clerk of the circuit court, before
transmitting the record as aforesaid, shall arrange the papers, as
nearly as may be, in the order of the filing and entry thereof, numbering the pages, make and certify copies of all orders entered
in the case, copies of which are not in the files, and prepare and
annex to the record a table of contents or index. Before such
petition and record are transmitted as aforesaid, the petitioner
shall deposit with the clerk of the circuit court a sufficient sum
of money to defray the expenses of the preparation and indexing of
the record, fees for filing the petition and making and certifying
necessary copies of orders, costs of transmission and return of the
record, and the making of a transcript of the record, or file with
the clerk a bond conditioned to pay the same, in a penalty and with
sureties to be fixed and approved by such clerk, who shall indorse
on the petition that such deposit has been made or such bond filed.
If the appeal or writ of error prayed for be granted, the clerk of
the supreme court of appeals shall return the record to the clerk
of the circuit court, by mail or express, as aforesaid; and such
circuit court clerk shall forthwith make a transcript of so much of
the record as is required for the purposes of the appeal or writ of
error and transmit the same to the clerk of the supreme court of
appeals. Insofar as provision therefor is not made by existing law,
the compensation of the clerk of the circuit court for services
rendered hereunder shall be fixed by the judge of such court. If
the prayer of the petition be not granted, the petition and record
shall be returned as aforesaid, and the clerk of the circuit court
shall repay to the petitioner, or his attorney, the money deposited
with him, if any, less his fees and expenses.
§58-5-12. Order granting appeal or supersedeas; service.
The clerk of the appellate court shall thereupon send a copy
of the order granting the appeal to the parties interested, other
than the petitioners, that they may be heard, and also send a copy
of any supersedeas which may be awarded, which order or supersedeas
may be served upon the party in person or his attorneys in the
court from which the appeal or writ of error is taken.
§58-5-13. Indorsements on writs as to bond.
The clerk of the supreme court of appeals shall indorse on the
order or supersedeas that it is not to be effectual until the bond
required by section fourteen of this article, with good personal
security, be given before the clerk of the court below, who shall
take such bond and indorse on the order that it has been given, and
the names of the sureties therein, and forward to the clerk of the
supreme court of appeals a certified copy of such bond.
§58-5-14. Appeal bond generally.
When required by the court, an appeal, writ of error or writ
of supersedeas shall not take effect until bond is given by the
appellants or petitioners, or one of them, or some other person, in
a penalty to be fixed by the court or judge by or in which the
appeal, writ of error or supersedeas is allowed or entered with
condition: If a supersedeas be awarded, to abide by and perform the
judgment, decree or order of affirmance, and to pay to the opposite
party, and to any person injured all such costs and damages as
they, or either of them, may incur or sustain by reason of said
appeal, in case such judgment, decree or order, or such part, be
affirmed, or the appeal, writ of error or supersedeas be dismissed, and also, to pay all damages, costs and fees, which may be awarded
against or incurred by the appellant or petitioners; and if it be
an appeal from an order or decree dissolving an injunction, or
dismissing a bill of injunction, with a further condition, to
indemnify and save harmless the surety in the injunction bond
against loss or damage in consequence of his suretyship; and with
condition when no supersedeas is awarded to pay such specific
damages, and such costs and fees as may be awarded or incurred:
Provided, That whenever a writ of error, appeal or supersedeas
shall be awarded in any action or suit wherein a judgment or decree
for the payment of money has been entered against an insured in an
action which is defended by an insurance corporation, or other
insurer, on behalf of the insured under a policy of insurance, the
limit of liability of which is less than the amount of said
judgment, execution on the judgment to the extent of the policy
coverage shall be stayed until final determination of such appeal,
writ of error or supersedeas, and no execution shall be issued, or
action brought, maintained or continued against such insured,
insurance corporation, or other insurer, for the amount of such
judgment or decree so stayed, by either the injured party, the
insured, or the legal representative, heir or assigns of any of
them, during the pendency of such proceeding, provided such
insurance corporation, or other insurer, shall:
(1) File with the clerk of the court in which the judgment was
entered, a sworn statement of one of its officers, describing the
nature of the policy and the amount of coverage thereof;
(2) Give or cause to be given by the judgment debtor or some
other person for him a bond in a penalty to be fixed by the court
or judge by or in which the appeal, writ of error or supersedeas is
allowed or entered, not to exceed the amount of such insurance
coverage set out in the sworn statement above required, with
condition to pay the amount of such coverage upon said judgment if
the judgment or decree or such part be affirmed or the appeal, writ
of error or supersedeas be dismissed, plus interest on said sum and
cost;
(3) Serve a copy of such sworn statement and bond upon the
judgment creditor or his attorney;
(4) Deliver or mail to the insured at the latest address of
the insured appealing upon the records of such insurance
corporation, or other insurer, written notice that execution on
such judgment to the extent that it is not covered by such
insurance is not stayed in respect to the insured: Provided, That
the filing of a bond by the insured or someone for him, conditioned
upon the payment of the balance of the judgment or decree and
interest not stayed by the insured as aforesaid if the judgment or
decree be affirmed or the appeal, writ of error or supersedeas be
dismissed, shall stay execution on the balance of said judgment not
covered by such insurance: Provided, however, That the filing of
such statement and bond hereunder by an insurance corporation or
other insurer shall not thereby make such insurance corporation or
other insurer a party to such action, either in the trial court or
in the appellate court.
§58-5-28. Certification of mandate to lower court; stay of mandate
pending rehearing.
The clerk of the supreme court of appeals shall certify and
mail or otherwise transmit its mandate to the clerk of the court
below thirty days after entry of judgment. Unless otherwise
ordered by the supreme court of appeals, judgment is not effective
until issuance of the mandate. A certified copy of the judgment
and a copy of the opinion of the supreme court of appeals, if any,
and any direction as to costs, constitute the mandate. The timely
filing of a petition for rehearing shall stay the mandate until
disposition of the petition unless otherwise ordered by the supreme
court of appeals. When the petition for rehearing is denied, the
mandate shall issue seven days after entry of the order denying the
petition: Provided, That the time for performance of any act under
this section may be shortened or enlarged by order of the supreme
court of appeals.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-13. Fees to be charged by clerk of supreme court of appeals.
The clerk of the supreme court of appeals shall charge the
following fees to be paid by the parties for whom the services are
rendered:
For all copies of petitions, records, orders, opinions or other
papers, per page.25
For each certificate under seal of the court5.00
For license to practice law, suitable for framing25.00
For any other work or services not herein enumerated, the
clerk shall charge the fees prescribed for similar services by
clerks of circuit courts.
ARTICLE 2. COSTS GENERALLY.
§59-2-14. Taxation of statute fees.
He shall include in the costs to the prevailing party:
(a) In any civil action, ten dollars;
(b) In civil actions in any court of limited jurisdiction, the
same fees as are allowed in a circuit court for like actions.