Humphrey v. Mauzy

Decision Date25 May 1971
Docket NumberNos. 13069,13070,s. 13069
Citation155 W.Va. 89,181 S.E.2d 329
CourtWest Virginia Supreme Court
PartiesBetty Lowther HUMPHREY v. Kathryn K. MAUZY, Clerk, Circuit Court of Tucker County. Shelba Jane Long STEWART v. Kathryn K. MAUZY, Clerk, Circuit Court of Tucker County.

Syllabus by the Court

1. As a general rule, the clerk of a circuit court has a mandatory, nondiscretionary duty to record in the appropriate civil order book in her office a final judgment order entered in a civil action and endorsed for entry by the signature of the judge of the court.

2. Mandamus lies to require a public official to perform a nondiscretionary legal duty.

3. When one who desires to institute a civil action for divorce in a circuit court proceeds in forma pauperis by properly and legally qualifying as a poor person or as an indigent person in conformity with the provisions of Code, 1931, 59--2--1 and consequently is permitted to institute and to maintain a civil action for divorce from her husband, without being required to pay the $10 clerk's fee prescribed by Code, 1931, 59--1--11, as amended, the clerk of the circuit court has a mandatory, nondiscretionary legal duty to record, in the appropriate civil order book in her office, a final judgment order granting a divorce to the plaintiff and endorsed for entry by the signature of the judge of the court. Neither the clerk nor the judge of the court has a legal right, merely because of the indigency of the plaintiff and her consequent inability to pay the $10 clerk's fee, to deny to the plaintiff her right to have the clerk properly record in her office the order by which the plaintiff has been granted a divorce from her husband.

M. E. Mowery, Jr., Fairmont, Larry V. Starcher, Morgantown, for relators.

J. Pat Nichols, Pros. Atty., Tucker County, Parsons, for respondent.

CALHOUN, Judge:

This case involves two original proceedings in mandamus, one instituted by Betty Lowther Humphrey, as petitioner, and the other instituted by Shelba Jane Long Stewart, as petitioner, against Kathryn K. Mauzy, in her official capacity as Clark of the Circuit Court of Tucker County, the respondent in each of the two cases. In view of the fact that the two mandamus proceedings involve similar factual situations and substantially identical legal questions, they have been combined for submission and decision.

Each case was submitted for decision upon the mandamus petition, upon an answer of the respondent and upon briefs of counsel for the respective parties, oral argument having been waived by agreement of counsel.

In each of the two cases, the petitioner seeks to compel the respondent clerk to enter in the appropriate civil order book in her office an order by which a divorce from the bonds of matrimony was granted to the petitioner. In each of the two cases, the respondent has refused to record the order because of the failure and refusal of the petitioner to pay to the respondent clerk the $10 fee which is prescribed by Code, 1931, 59--1--11, as amended, in the following language:

'The clerk of a circuit court shall charge and collect for services rendered as such clerk the following fees, and Such fees shall be paid in advance by the parties for whom such services are to be rendered:

'For instituting any civil action under the rules of civil procedure, * * * or any other action, cause, suit or proceeding, ten dollars.' (Italics supplied.)

In each case it is alleged in the mandamus petition that the respondent clerk permitted the petitioner, as the plaintiff, to institute a divorce action against her husband in the Circuit Court of Tucker County without requiring payment to the respondent of the $10 fee and that advance payment of the fee was not required by the respondent because the plaintiff proceeded in forma pauperis by filing with the respondent an affidavit in compliance with the provisions of Code, 1931, 59--2--1, which statute is as follows:

'A poor person may be allowed by a court to sue or defend a suit therein without paying fees, or costs, whereupon he shall have from any counsel which the court may assign him and from all officers, all needful services and process, and also the assistance of witnesses, without any fees to them therefor, except what may be included in the costs recoverable from the opposite party. A poor person, within the meaning of this section, shall be one who shall make and file in the court, Or with the officer whose services may be demanded or required, an affidavit stating that he is pecuniarily unable to pay fees or costs, or counsel fees, and upon the filing of such affidavit in court or with any officer, then such officer shall perform any services required by law to be performed by him, as if the legal fees for such services had been paid. If any person shall swear falsely in such affidavit, and shall represent himself to be a poor person within the meaning of this article, when in fact he is pecuniarily able to pay the fees fixed by law, or to pay reasonable counsel fees, in any suit or action wherein he is a party, he shall be guilty of false swearing, and, upon conviction thereof, shall be punished as provided by law for such offense.' (Italics supplied.)

In each case a copy of the affidavit is filed with and made a part of the mandamus petition. It is not questioned that the affidavits were duly filed, nor is it questioned that the affidavits, in form, substance and language, properly complied with the provisions and requirements of the statute. It has not been asserted or proved that either affiant swore falsely in her affidavit or that either affiant is in fact not a 'poor person' within the meaning and purview of the statute.

Filed with and made a part of each mandamus petition is a copy of a final judgment ordered endorsed for entry by the judge of the Circuit Court of Tucker County. Each of the two orders recites that sworn testimony of the plaintiff and her witness was heard by the court; that the testimony was duly reported by the official court reporter and ordered to be filed; that the plaintiff is entitled to an absolute divorce from the defendant as a matter of law on the grounds alleged by the plaintiff in her complaint; that the bonds of matrimony theretofore existing between the plaintiff and the defendant are dissolved; and that the plaintiff and the defendant 'are hereby divorced and forever freed from the bonds of matrimony heretofore existing between them.' Each of the two orders was regularly endorsed for entry on February 17, 1971, by the signature of the judge of the Circuit Court of Tucker County. The two orders are substantially identical in form and substance. Neither order makes any reference to fees or to costs, and neither order provides for a recovery of costs.

Each mandamus petition alleges that the respondent clerk 'has failed to perform her nondiscretionary legal duty * * * in violation of the Petitioner's rights as guaranteed by the Fourteenth Amendment to the United States Constitution by refusing to enter a duly signed order of Circuit Judge D. E. Cuppett, Jr., dated the 17th day of February, 1971, granting a final divorce decree to the Petitioner * * *.'

The respondent clerk alleges in both answers that counsel for the plaintiffs in the divorce actions, 'is employed by the North Central West Virginia Legal Aid Society, Fairmont, West Virginia which Legal Aid Society is funded by the Office of Economic Opportunity, a federal agency'; that, before the divorce orders were endorsed for entry, the judge advised counsel for the plaintiff in each case that the plaintiff would be required 'to pay court costs' and inquired whether the costs had been paid; that the costs consisted of the $10 clerk's fee and a court reporter's fee of $15 in each case; that, upon request of counsel for the plaintiff, the judge signed each order upon the promise of counsel to pay such costs to the respondent clerk upon his return to his office in Fairmont; that each order was signed by the judge with the understanding that it would not be entered of record until the costs had been paid; that counsel for the plaintiffs in the divorce actions subsequently forwarded to the official court reporter a check in payment of her fee of $15 in each of the two divorce actions; and that counsel for the plaintiff in each of the two actions appeared before the trial court on or about March 1, 1971, and advised the judge that neither of his clients was going to pay the clerk's fee of $10.

In each of the two mandamus proceedings in this Court, counsel for the petitioners filed, without objection, an affidavit which denies in part the allegations of the answers to the effect that it was understood and agreed that recordation of the divorce orders would be withheld or deferred until the 'costs' were paid to the clerk. Counsel asserts in his affidavit that it was his understanding that the 'costs' referred only to the $15 court reporter's fee in each...

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    • United States
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    • February 22, 2022
    ...This act is clearly within Defendant Circuit Clerk Ball's official duties under West Virginia law. See Syl. Pt. 1, Humphrey v. Mauzy, 155 W.Va. 89 (1971) (“As a general rule, the clerk of a circuit court has a mandatory, nondiscretionary duty to record in the appropriate civil order book in......
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    ...been used in cases where indigent freemen have sought dissolutions of their marriages without paying fees or costs. Humphrey v. Mauzy, 155 W.Va. 89, 181 S.E.2d 329 (1971). 4 Furthermore, we have held that due process requires appointed counsel for indigent parties to suits involving termina......
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