Crusenberry v. Norfolk & W. Ry. Co.

• Decision Date: 22 June 1971
• Docket Number: No. 12971,12971
• Citation: 180 S.E.2d 219,155 W.Va. 155
• Court: West Virginia Supreme Court
• Parties: Grace L. CRUSENBERRY v. NORFOLK & WESTERN RAILWAY COMPANY, et al. Orland D. VAN DYKE v. NORFOLK & WESTERN RAILWAY COMPANY, etc.

Page 219

180 S.E.2d 219

155 W.Va. 155

Grace L. CRUSENBERRY v. NORFOLK & WESTERN RAILWAY COMPANY, et al.

Orland D. VAN DYKE v. NORFOLK & WESTERN RAILWAY COMPANY, etc.

No. 12971.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1971.

Decided March 30, 1971.

Rehearing Denied June 22, 1971.

Syllabus by the Court

1. The word 'shall', as used in the West Virginia Rules of Civil Procedure, connotes an imperative command, and, in the absence of language showing a contrary intent, should be construed in a mandatory sense.

2. Rule 80(c) of the West Virginia Rules of Civil Procedure, being couched in mandatory language, must be complied with unless the requirement of notice contained therein is waived by the party to be given such notice.

3. In the interpretation and application of Rule 80(c) of the West Virginia Rules of Civil Procedure, the function and purpose thereof must be considered and where substantial rights of the parties may be affected, as noted in Rule 61, R.C.P., the failure to comply with the requirement of Rule 80(c) should not be considered harmless error.

Crockett, Tutwiler & Crockett, J. Strother Crockett, Welch, for appellant.

Owen R. Griffith, Jr., Princeton, for appellee Orland D. Van Dyke.

Ballard & Shinaberry, Sterl F. Shinaberry, W. H. Ballard, Welch, for appellee Crusenberry.

CAPLAN, President:

This is a proceeding on a motion to reinstate an appeal which had been granted by this Court and subsequently dismissed as improvidently awarded.

In a civil action instituted in the Circuit Court of McDowell County a trial before a jury resulted in a verdict in the amount of $15,000.00 in favor of the plaintiff, Grace Crusenberry, and a verdict in favor of Orland D. Van Dyke, on his cross-bill, in the sum of $5,000.00. After a motion to set aside the verdicts and to award a new trial was considered, the court overruled the motion and entered a final order. An appeal sought by Norfolk & Western Railway Company, the defendant in that case, was granted by this Court on June 15, 1970.

Upon receiving notice from the Clerk of this Court that an appeal and supersedeas had been awarded, the appellees, on July 14, 1970, filed a motion to dismiss the appeal. This matter was heard on September 2, 1970 and on September 14, 1970 the motion to dismiss the appeal was granted. Subsequently, on September 22, 1970, the appellant filed its petition to reinstate the appeal. The matter was set for hearing and was submitted for decision on January 26, 1971, on the briefs and argument of counsel for the respective parties.

The ground for the motion to dismiss the appeal was the failure of the appellant to give notice to the appellees that it had filed in the Circuit Court of McDowell County a transcript of the proceedings had and testimony taken at the trial for the purpose of presenting a petition for appeal to this Court, as required by Rule 80(c) of the West Virginia Rules of Civil Procedure. The appellees allege, in addition to the appellant's failure to give such notice, that they did not receive a copy of the transcript and had no actual knowledge that it had been filed; that they were deprived of the right afforded by Rule 80(c), R.C.P. to assign error or omission in any part of the transcript and testimony taken at the trial; and that they were deprived of the opportunity provided by Section 1, Rule II, of the Rules of the Supreme Court of Appeals, to file notes of argument in opposition to the petition for appeal. Therefore, reason the appellees, this Court does not have jurisdiction to consider this appeal, the transcript of proceedings and evidence not having been properly made a part of the record.

The appellant takes the position that Rule 80(c) is not jurisdictional and that its failure to comply with the provisions thereof is nothing more than harmless error unless the appellees can affirmatively show that they have been prejudiced by its failure to give notice of the filing of the transcript. It is contended by the appellants that the appellees were not prejudiced by this alleged technical omission.

Subsequent to the entry of the judgment against it, the appellant, Norfolk & Western Railway Company, preparatory to seeking an appeal in this Court, filed with the Circuit Court of McDowell County a transcript of the proceedings had and testimony taken at the trial. It is expressly admitted by the appellant that it did not give notice of such filing to the appellees as required by Rule 80(c), R.C.P. It alleges, however, that counsel for the appellees knew that a petition for appeal had been filed and that a copy of the transcript had been ordered. It claims that this constitutes substantial compliance with the rule and demonstrates that the appellees were not prejudiced by its failure to give the required notice.

It is acknowledged by the appellees that they assumed that the appellants in the course of perfecting an appeal would order a copy of the transcript. However, they did not actually know that an appeal would be prosecuted, the first knowledge they had thereof being from the Clerk of this Court that a writ of error and supersedeas had been granted. The appellees assert that by reason of said failure to give the required notice they were deprived of the opportunity to examine the transcript for errors or omissions prior to its submission to this Court.

Rule 80(c), R.C.P. provides:

'Notice of Filing Transcript. When a transcript of the proceedings had and testimony taken at a trial is filed with the court, the party causing it to be filed shall promptly give notice thereof to all other parties.'

The issue here is whether, in the circumstances of this case, as described above, the failure of the appellant to comply with the requirement of Rule 80(c) constitutes sufficient basis for the dismissal of the appeal heretofore granted.

The record does not support the appellant's allegation that counsel for the appellees knew that a petition for an appeal had been filed and a copy of the transcript ordered. There is no showing that appellees' counsel had such knowledge and a mere assumption that they did does not suffice. In fact, as noted, there is an affirmative showing, admitted by the appellants, that at no time were the appellees given notice that a petition for appeal had been filed or that a transcript was ordered.

We must now determine the character of Rule 80(c) and decide whether it must be followed literally or whether it merely suggests a procedure which should be obeyed. It is of utmost significance to the resolution of this issue that said rule is couched in mandatory language. It not only provides that the party causing the transcript to be filed Shall give notice thereof, but he shall Promptly give such notice to all other parties. The use of the word 'shall', without any modification, unquestionably makes the direction therein mandatory. The use of the word 'promptly' strongly indicates an urgency in the accomplishment of such direction.

The word 'mandatory' connotes an imperative command. That which is commanded in a mandatory statute must be done or the proceedings to which it relates is void. Siedschlag v. May, 363 Ill. 538, 2 N.E.2d 836. That the Rules of Civil Procedure, having been promulgated and adopted by this Court, have the force and effect of a statute is unquestioned. See Code, 1931, 51-1-4a, as amended; In re Mann, 151 W.Va. 644, 154 S.E.2d 860; and Boggs v. Settle, 150 W.Va. 330, 145 S.E.2d 446.

This Court, on numerous occasions, has held that the word 'shall', connotes a mandatory or imperative command. In Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480, the Court quoted from Board of Trustees of Policemen's Pension or Relief Fund of City of Huntington v. City of Huntington, 142 W.Va. 217, 96 S.E.2d 225, as follows: 'Axiomatic in the law of statutory construction is the postulate that the word 'shall', in the absence of something in the statute showing a contrariwise intent on the part of the Legislature, should be construed in a mandatory sense.' In Baer v. Gore, 79 W.Va. 50, 90 S.E. 530, L.R.A.1917B, 723, the court said: 'The provisions of the enactment are expressed in imperative terms. They are positive and unequivocal. Generally 'shall,' when used in Constitutions and statutes, leaves no way open for the substitution of discretion.' See also In re Mann, 151 W.Va. 644, 154 S.E.2d 860; State ex rel. Staley v. County Court of Wayne County, 137 W.Va. 431, 73 S.E.2d 827; and Dawson v. Phillips, 79 W.Va. 14, 88 S.E. 456.

While, as contended by the appellant, Rule 80(c), R.C.P. is not jurisdictional, Piper v. Miller, W.Va., 173 S.E.2d 662, contrary to appellant's contention, is not controlling here. In Piper there was substantial compliance. The appellee admittedly had a copy of the transcript when it was filed with the clerk of the circuit court. He had the opportunity to correct the transcript, if necessary, as provided in Rule 80(d) R.C.P., and to file a brief in opposition to the appellant's petition for appeal. Here, the transcript was filed and the appeal was granted without any knowledge thereof by the appellees and the above opportunities were not afforded.

The appellant's contention that Rule 80(c), R.C.P., embodies a mere technicality and that the failure to comply therewith is harmless error, unless the appellees show specifically how they were prejudiced, is without merit. This rule is mandatory. The reason therefor is that the appellees, upon receiving the notice required thereby, can take certain steps to protect their rights. They can examine the transcript so filed and determine if there were any errors or omission therein. Further, they could file a brief in opposition to the petition for appeal. They were deprived of these courses of action by the appellant's failure to give notice as required by Rule 80(c), R.C.P. These are material procedural considerations which can seriously effect the rights of an appellee.

The...