Boggs v. Settle

• Decision Date: 23 November 1965
• Docket Number: No. 12329,12329
• Court: West Virginia Supreme Court
• Parties: Dennis BOGGS v. William O. SETTLE, Jr., et al.

Page 446

145 S.E.2d 446

150 W.Va. 330

Dennis BOGGS v. William O. SETTLE, Jr., et al.

No. 12329.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 16, 1965.

Submitted on Rehearing Sept. 29, 1965.

Decided Nov. 23, 1965.

Syllabus by the Court

1. The requirement of Rule 59(b) of the Rules of Civil Procedure that a motion for a new trial shall be served not later than ten days after entry of the judgment is mandatory and jurisdictional. The time required for service of such a motion cannot be extended by the court or by the parties.

2. On appeal of a case involving an action covered by the Rules of Civil Procedure, this Court will disregard and regard as harmless any error, defect or irregularity in the proceedings in the trial court which does not affect the substantial rights of the parties.

3. A certificate of an attorney made pursuant to R.C.P. 5(d), stating that a motion for a new trial was served, pursuant to R.C.P. 5(b), by mailing a copy of such motion to opposing counsel, will be regarded in law as a prima facie showing of the truth of the matters stated in such certificate.

4. This Court, in the exercise of its appellate jurisdiction, will reverse a finding of fact made by a trial court if it appears that such finding of fact is not supported by competent evidence.

Steptoe & Johnson, Edward W. Eardley, Carl F. Stuckey, Simpson & Baughan, Spencer P. Simpson, Kay, Casto & Chaney, Edward H. Tiley, Hoyt N. Wheeler, Charleston, for appellants.

Larry W. Andrews, Rudolph L. DiTrapano, William E. Hamb, Charleston, for appellee.

CALHOUN, Judge.

This case is before the Court on appeal from an order entered on January 8, 1964, by the Circuit Court of Kanawha County, sitting as an intermediate appellate court, by which order the circuit court refused to grant an appeal from a final judgment of the Court of Common Pleas of Kanawha County embodied in an order entered on August 27, 1963.

The appeal was refused by the circuit court on the ground that the judgment appealed from was plainly right. In so doing, the circuit court held that the court of common pleas correctly and properly held that it had no jurisdiction to consider a motion to set aside a verdict and judgment in favor of the plaintiff ant to grant the defendants a new trial, because of the failure of the defendants to comply with the provisions of R.C.P. 59(b).

On June 19, 1962, the plaintiff, Dennis Boggs, sustained a personal injury resulting from the falling of a large piece of slate from the roof of the coal mine in which he was then employed. He was transported in a coal car from the place where the accident occurred to the mouth or entrance of the mine. He was then placed in an ambulance to be transported to a hospital in Charleston. The ambulance was owned by defendants Joseph W. Knight and William Ray Young, who were doing business under the name of Kinight and Young Funeral Home. While the ambulance was being driven by defendant William O. Settle, Jr., on U. S. Route 119 in Kanawha County, it became involved in a collision with a dump truck owned by defendant Charles O. Moles while it was being driven by his son, the defendant Charles David Moles.

The collision was quite violent and resulted in severe personal injuries to the plaintiff. Though there was some question at the trial concerning the nature and extent of the injury suffered by the plaintiff in the mine, it is clear from the evidence that the injury sustained in the mine was relatively minor in nature and in the degree of its seriousness when considered in relation to the injuries sustained by the plaintiff in the collision of the two motor vehicles.

An action was instituted by Dennis Boggs in the court of common pleas against William O. Settle, Jr., Joseph W. Knight and William Ray Young, doing business as Knight and Young Funeral Home, Charles David Moles and Charles O. Moles, by which action the plaintiff sought to recover damages in the sum of $250,000 from the defendants for the personal injuries sustained by the plaintiff as a result of the collision of the two motor vehicles. In the trial of the action, the jury returned a verdict on January 10, 1963, in favor of the plaintiff in the sum of $100,000 against all of the defendants and, on January 11, 1963, judgment was entered on the verdict.

By an order entered in the court of common pleas on January 18, 1963, the defendants filed and made a part of the record their joint and several motion to set aside the verdict of the jury and the judgment entered thereon and to grant the defendants a new trial. The court of common pleas, by order entered on August 27, 1963, refused to consider the motion on the ground that it had lost jurisdiction to do so for reasons set forth in the court's written opinion dated August 3, 1963, which opinion was, by the court order, made a part of the record. The Court is authorized to consider the opinion in these circumstances in order to determine the reason assigned by the court for its action in refusing to consider the motion. Rollins v. Daraban, 145 W.Va. 178, pt. 2 syl., 113 S.E.2d 369. The brief written opinion of the trial court states that 'the Court is of the opinion that defendants failed to comply with the provisions of Rule 59(b) of the Rules of Civil Procedure, and that therefore this Court has lost jurisdiction to entertain said motions of the defendants.'

The order entered by the circuit court on January 8, 1964, states that the judgment of the trial court is plainly right, that the appeal was denied and the petition for appeal was dismissed, for reasons stated in the circuit court's written opinion which, by the court order, was made a part of the record. In the written opinion, the judge of the circuit court stated: 'I am of opinion that the Court of Common Pleas properly ruled that the defendants failed to show compliance with Rule 59(b), R.C.P., thereby waiving the errors assigned under the application of Rule 59(f), R.C.P. The affidavits filed in the Court of Common Please subsequent to the rendition of judgment merely crystalize the disputed question of fact before the Court of Common Pleas of whether or not service of the motion was actually had. The trial court having found that such service was not make on counsel for the plaintiff, this question cannot be reopened and reconsidered upon this appeal. The finding of fact by the trial court is entitled to great weight, and all the authorities so hold.'

Neither the court of common pleas nor the circuit court passed upon the assignments of error contained in the defendants' joint and several to set aside the verdict and judgment and to grant the defendants a new trial.

After the case was submitted for decision, the Court on March 23, 1965, announced an opinion by which the judgment of the circuit court was affirmed. Judge Berry filed a dissenting opinion and Judge Browning filed a concurring opinion. The Court's opinion, followed by the dissent and the concurrence, is reported in 141 S.E.2d 48. On July 14, 1965, the Court granted a rehearing on the petition of the defendants. On September 28, 1965, the case was again submitted for decision upon briefs and oral argument, pursuant to the rehearing previously granted. In the light of the rehearing, the former opinion of the Court, reported in 141 S.E.2d 48, is recalled and is superseded by this opinion.

A proper decision of the case involves, in the main, certain pertinent provisions of the West Virginia Rules of Civil Procedure. R.C.P. 59(b) is as follows: 'A motion for a new trial shall be served not later than 10 days after the entry of the judgment.' R.C.P. 6(b) deals with enlargement of periods of time provided by the rules for doing any act and contains the following languate: '* * * but neither the court nor the parties may extend the time for taking any action under Rules 50(b), * * * 59(b) * * *.' R.C.P. 5(b) contains the following language: 'Whenever under these rules service is required or permitted to be made upon a party represented by an attorney of record the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or, if no address is known, by leaving it with the clerk of the court. * * * Service by mail is complete upon mailing.' (Italics supplied.) R.C.P. 5(d) is as follows: 'All papers after the complaint required to be served upon a party shall be filed with the court within a reasonable time after they have been served or service of such papers has been accepted. There shall be endorsed on or appended by every such paper either a certificate by the attorney or the party that the paper was served in the manner prescribed by this rule or a certificate of acceptance of service by the attorney or the party to be served. Such certificate shall show the date and method of service or the date of the acceptance of service.' (Italics supplied.)

The provisions of R.C.P. 59(b) which require that a motion for a new trial shall be served not later than ten days after the entry of the judgment are mandatory and jurisdictional; and, by reason of R.C.P. 6(b), the parties have no legal authority to extend the period prescribed for service of the motion. Ohlinger's Federal Practice, Volume 3-A, page 393; Cyclopedia of Federal Procedure (3d Ed.), Volume 10, page 105; Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.), Volums 3, page 378 and page 381; Moore's Federal Practice (2d Ed.), Volume 6, page 3846; Lugar & Silverstein, W.Va. Rules, pages 451-52 and page 513; Sutherland v. Fitzgerald, 291 F.2d 846 (10th Cir.); Breast. Admr. v. Philadelphia Transportation Co., 273 F.2d 22 (3rd Cir.); Steward v. Atlantic Refining Co., 235 F.2d 570 (3rd Cir.); Hulson v. Atchison, Topeka and Santa Fe Railway Co., 289 F.2d 726 (7th Cir.). It is quite true that, under R.C.P....