Roe v. M & R Pipeliners, Inc.

• Decision Date: 15 March 1974
• Docket Number: No. 13275,13275
• Citation: 202 S.E.2d 816,157 W.Va. 611
• Court: West Virginia Supreme Court
• Parties: Ferrell ROE v. M & R PIPELINERS, INC. KEYSTONE ACCEPTANCE CORP. v. M & R PIPELINERS, INC., et al.

Page 816

202 S.E.2d 816

157 W.Va. 611

Ferrell ROE v. M & R PIPELINERS, INC.

KEYSTONE ACCEPTANCE CORP. v. M & R PIPELINERS, INC., et al.

No. 13275.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1973.

Decided Nov. 20, 1973.

Dissenting Opinion Dec. 3, 1973.

Rehearing Denied March 15, 1974.

Syllabus by the Court

1. Evidence which clearly shows that a party in a lawsuit has fulfilled every prerequisite for the nondiscretionary issuance of a legal document by a court clerk raises the presumption that the document was issued, although the document itself cannot be found.

2. The presumption that public officers discharge their duties in a regular and proper manner is a strong presumption compelled first by experience and second by society's interest in avoiding frivolous litigation over technicalities.

3. In determining the standard of proof required to rebut the presumption that public officials properly and regularly perform their duties, a trial court must apply a balancing test which weighs the prejudice to substantive rights of the party challenging the presumption against society's interest in avoiding frivolous litigation, and where it appears that the party challenging the presumption will not be injured in the assertion of his substantive rights, the evidence necessary to rebut the presumption of regularity must be clear and convincing.

Jones, Williams, West & Jones, James C. West, Jr., Clarksburg, for appellant.

Stone, Bowles, Kauffelt & McDavid, T. D. Kauffelt, Charleston, for appellee Keystone Acceptance Corp. NEELY, Justice:

These consolidated civil actions concern the validity of a notice of Lis pendens when its prerequisite, an order of attachment, allegedly has not been duly entered and recorded.

On January 15, 1966, Ferrell Roe sued M & R Pipeliners, Inc. for back wages in the Circuit Court of Harrison County. In June 1966 there was a mistrial, and thereafter, in October 1966, a second trial was conducted in which Ferrell Roe obtained a verdict and judgment for $11,121.25. While Ferrell Roe's case was pending in the Circuit Court of Harrison County, Keystone Acceptance Corporation sued M & R Pipeliners, Inc. in the Circuit Court of Kanswha County, and in August 1966 Keystone was awarded judgment against M & R Pipeliners for $275,002.50. In September 1966, Keystone sued both M & R Pipeliners and Ferrell Roe in the Circuit Court of Harrison County to establish creditors' priority because Keystone was frustrated by appellant Roe's notice of Lis pendens and attachment of M & R's real estate in its attempts to levy on M & R's property in Harrison County to satisfy its Kanawha County judgment. Keystone alleged that the notice of Lis pendens filed in the Roe v. M & R Pipeliners case was invalid because the notice was based upon a supposed order of attachment which was never issued by the Clerk of the Circuit Court of Harrison County. Upon depositions, stipulations and memoranda of authorities, and after Ferrell Roe obtained his October 1966 judgment in Harrison County, the Circuit Court of Harrison County took the case under advisement and, at late last, in September 1971 ruled in favor of Keystone and set aside the notice of Lis pendens on the grounds that no proper order of attachment had ever been issued. From this final order Ferrell Roe, petitioner in this Court, appealed.

The undisputed facts concerning the order of attachment in question are that on January 15, 1966, Roe's complaint, affidavit for attachment, and instructions to the clerk for instituting the civil action against M & R were properly filed. The Clerk of the Circuit Court of Harrison County was paid $11.50 by check drawn on the checking account of the law firm of Clifford, Jones & Williams and signed by James C. West, Jr., and it was noted on the check that the purpose of payment was for 'Clerk's fee and Order of Attachment, Roe, et al vs. M & R Pipeliners, Inc.' The fee book maintained by the Clerk of the Circuit Court of Harrison County shows the following entry on January 15, 1966: 'Jan. 15 Order of Attachment.' The Sheriff of Harrison County was paid the sum of one dollar ($1.00) by a check drawn on the checking account of Clifford, Jones & Williams and signed by James C. West, Jr. which shows on its face that it was for 'Service of Order of Attachment, Roe, et al. vs. M & R Pipeliners, Inc.' The execution record maintained by the Sheriff of Harrison County shows the following entry with reference to the Roe v. M & R case: '1/15/66 Order of attachment Received 1/15/66 10:00 a.m. Executed the attached order of attachment at 2:00 p.m.--1/15/66 in Harrison Co. (signed) James O. Cain.' The Civil Action Docket for the Roe v. M & R case maintained by the Clerk of the Circuit Court of Harrison County shows the following entries for January 1966:

'Jan. 15 Complaint filed and summons issued. Affidavit for attachment filed.

Jan. 18 Order of Attachment returned showing said Order of attachment being executed at 2:00 p.m. on the 15th day of January, 1966, by James O. Cain, Deputy for S.H.C.'

Deputy Sheriff James Cain testified that he served papers in the Roe v. M & R case by posting the papers on land which he thought belonged to M & R, but which was later discovered to be the property of an adjoining landowner. He was unable to remember what the papers contained, and accordingly his testimony tended neither to prove nor disprove the existence of an order of attachment.

It is undisputed that there was no order of attachment in the Circuit Clerk's file of the Roe v. M & R case. Furthermore the testimony of the adjoining landowner, George L. Reno, reveals that he received attachment papers when they were inadvertently posted on his property, and that those papers to the best of his knowledge, contained only a copy of the sheriff's return of the order of attachment and did not contain an order of attachment. Therefore the only evidence tending to disprove the existence of an order of attachment consists of the absence of the order from the file in the Roe v. M & R case and the testimony of Mr. Reno.

On the other hand the evidence tending to prove the existence of a properly issued order of attachment consists of a clear demonstration that Mr. Roe, through counsel, performed every prerequiste for the clerk's issuance of the order of attachment. Under the provisions of Chapter 38, Article 7, Sections 1 through 12, Code of West Virginia, 1931, the order of attachment is a piece of 'boiler plate' which Code, 38--7--4 mandates that the clerk shall issue in substantially the form dictated by Code, 38--7--12, upon presentation of the proper affidavit. The appellee, Keystone, has sought to impose a forfeiture upon the appellant, not for the appellant's own dereliction or negligence, but for the alleged failure to act of the circuit court clerk. The appellant, therefore, relies upon the presumption that public officers regularly and legally discharge their official duties and maintains that the Circuit Court of Harrison County erred in holding that the evidence presented by Keystone was sufficient to rebut this presumption. Appellant's theory of the case is that once appellant has demonstrated proper performance on his part of every act necessary to authorize the circuit court clerk to issue the order, the presumption of regularity compels the Court to make the logical inference that an order was properly issued. The appellant has met his obligation of introducing sufficient evidence of proper actions taken at the same tiem that an order of attachment would have issued to bring the presumption of regularity into operation as a rule of evidence.

We have held in other cases that the mere absence of an official document from a place where it should be filed is not conclusive evidence that the document was never properly executed. In the case of Van Winkle v. Blackford, 54 W.Va. 621, 46 S.E. 589 (1904) this Court said in syllabus pt. 6:

'When it is shown by public records that an official bond has been given by a public officer, but search for it is unavailing, the presumption in favor of the regularity of the acts of public officers applies, and the court may assume that the condition of the bond was such as the law required.'

Although this case has a factual situation which defies summary in its entirety, those facts which apply to the case at hand concern Mr. Van Winkle, who was designated by the Board of Trustees of a sinking fund as their treasurer. It was alleged that he, with his sureties, entered into a bond conditioned as required by a particular ordinance, and that afterwards, owing to a defect in the form of that bond, a new bond was given. The custodian of the records of the City of Parkersburg testified that diligent search among the records had failed to reveal the bond. However, the minutes of the Board of Trustees of the sinking fund showed that bond had been given in October 1895. From these facts, which are similar to those in the case at bar, this Court ruled that the only reasonable inference was that the bond had been given and later lost because of the rule that all things are presumed to be correctly done until the contrary is proven. In Van Winkle we cited with approval the case of Leland v. Cameron, 31 N.Y. (4 Tiff.) 115 where an execution had been issued and lost, and the only evidence of it was an entry by the attorney in his register, as both the attorney and the sheriff were dead. We quoted the following language from the head notes of Leland:

'The contents of the execution in such case may be inferred from the facts, that the law prescribes its forms; the attorney issuing it was Conversant with such instruments, and the sheriff to whom it was directed knew what it must contain to authorize him to sell the property. In view of such facts, and after a lapse of thirty years, the Court may assume that the execution was in due form, containing all such directions as the statute required it...