State v. Mason

• Decision Date: 08 July 1974
• Docket Number: No. 13291,13291
• Citation: 157 W.Va. 923,205 S.E.2d 819
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Roger O. MASON et al.

Page 819

205 S.E.2d 819

157 W.Va. 923

STATE of West Virginia v. Roger O. MASON et al.

No. 13291.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 29, 1974.

Decided April 2, 1974.

Rehearing Denied July 8, 1974.

Syllabus by the Court

1. An order confirming the sale of lands by the deputy commissioner of forfeited and delinquent lands is a judgment within the meaning of Rule 54(a) of the Rules of Civil Procedure.

2. A former owner of delinquent and forfeited land may, under the provisions of Code, 1931, 11A--4--18, as amended, petition to redeem his property which is subject to sale by the deputy commissioner of forfeited and delinquent lands at any time prior to the entry of a judgment confirming the sale as provided in Rules 58 and 79(a) of the Rules of Civil Procedure.

3. The Rules of Civil Procedure have the force and effect of a statute and, where the language of a rule is clear and unambiguous, it should not be construed but applied according to its terms.

4. In a proceeding governed by the Rules of Civil Procedure, a judgment rendered in such proceeding is not final and effective until entered by the clerk in the civil docket as provided in Rule 58 and Rule 79(a) of the Rules of Civil Procedure.

5. Rendition of a judgment is the pronouncement of the judgment by the court, while entry of the judgment is the notation of the judgment in the official records.

Don A. Barr, Moundsville, for appellants.

Madden & Hughes, John T. Madden and G. Charles Hughes, Moundsville, for appellee.

SPROUSE, Justice:

This case is before the Court upon an appeal from a final judgment of the Circuit Court of Marshall County entered in a civil action instituted by Eugene R. White, Deputy Commissioner of Forfeited and Delinquent Lands, to sell a specific tract of land in McMechan, West Virginia. After the court's order confirming the sale, but prior to its entry on the civil docket by the circuit clerk, the appellants in this proceeding, Irene Doris McElroy, William McElroy and Debroah Leon, the heirs of the former owner of the tract of land, sought by petition and answer to redeem the lands which had become delinquent for nonpayment of taxes and subject to sale. The circuit court by order dismissed the appellants' petition, and it is from this order that appellants seek relief in this Court.

There is no serious dispute as to the facts. The land in question was owned by Dr. Charles S. McElroy who had purchased it in 1967. Apparntly, the taxes were not paid in 1967 and the property was sold to the State in 1968. It was not redeemed. On October 13, 1971, the Deputy Commissioner of Forfeited and Delinquent Lands instituted an appropriate action to sell the property for the benefit of the school fund. Defendants in the complaints were the Marjorie D. Welsh Estate, Dr. McElroy's predecessor in title, Dr. McElroy, and 'all unknown parties and claimants, who have or claim an interest in the lands included and proceeded against in this action.' Process was served by publication. Dr. McElroy had died two months prior to the institution of the action and whatever rights he retained in the property belong to his wife, Irene Doris McElroy, and his two children, William McElroy and Debroah Leon.

No question was raised either at trial or on appeal concerning the adequacy of process. There being no appearance prior to the sale by the defendants, the circuit court on December 1, 1971, ordered the land sold at public auction to be held on January 14, 1972. The land was sold at the sale to Thomas Andrich for $3,000.00. The deputy commissioner reported the sale to the court on February 9, 1972, and the court on that date signed a 'Decree of Confirmation.' The 'decree' was entered on that date in the 'Civil Action Book' and the 'Delinquent Land Order Book.' The appellants on February 25, 1972, filed a petition praying that they be permitted to intervene and redeem the property or, in the alternative, that the order of confirmation be set aside under Rule 60(b) of the Rules of Civil Procedure. The appellants contended below that the 'Decree of Confirmation' signed by the court on February 9 was not a final order because it had not been entered in the civil docket as required by Rule 58 of the Rules of Civil Procedure, and that they had the right to petition for redemption any time before the order of confirmation was final.

A hearing was held in the circuit court to determine this question. The evidence established, and the trial court found that, although the decree of confirmation had been entered in the civil action book and delinquent land book on February 9, 1972, it had not been entered in the civil docket until after March 13, 1972. In other words, the appellants filed their petition to intervene and redeem after the 'Decree of Confirmation' was signed and entered in the civil action book and delinquent land order book but some weeks before a decree of confirmation was entered in the civil docket. The appellants also presented testimony outlining reasons why the taxes had not been paid; reasons why the appellants did not intervene prior to the sale--indicating they took action as soon as they became aware of the sale; testimony concerning the value of the property and other evidence not relevant to the disposition of the case.

The appellants' petition to redeem the land was pursuant to Chapter 11A, Article 4, Section 18 of Code, 1931, as amended. That section provides in part: 'The former owner * * * (of) delinquent land * * * may file his petition in such suit with the circuit court * * * At any time before confirmation of sale thereof requesting permission to redeem such land * * *.' (Italics Supplied.) The trial court held, in dismissing the appellants' petition, that it had not been filed before the confirmation of sale. That is the issue before the Court.

This requires the determination of whether the confirmation of sale was final when it was signed by the court on February 9 and entered in the order book, or was not final until after March 13, when it was entered in the civil docket.

Rule 54(a) of the Rules of Civil Procedure defines a judgment as including 'a decree and any order from which an appeal lies.' There can be no doubt, and the parties do not contest, that the 'Decree of Confirmation' signed by the court on February 9 was a 'judgment' as defined in Rule 54(a).

Rule 58 of the Rules of Civil Procedure provides in part: 'The clerk, forthwith upon receipt of the signed judgment, shall enter it in the civil docket as provided by Rule 79(a). The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment; And the judgment is not effective before such entry. * * * (Italics Supplied.) Rule 79(a) of the Rules of Civil Procedure requires the clerk to keep a civil docket and prescribes the procedures for entering various court actions, including judgments.

Although there are some differences, Rule 58 of the Federal Rules of Civil Procedure is similar to the West Virginia counterpart in requiring the judgment to be entered in a civil docket. Lugar & Silverstein, West Virginia Rules, 444--45. The Federal Rule 58 provides: 'A judgment is effective only * * * when entered as provided in Rule 79(a).'

Although this issue has not been decided by this Court, the question of finality of judgments in the sense of Rule 58 has been considered by many Federal courts. The United States Supreme Court has considered this both before a 1963 change in the rule and afterwards. United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202; United States v. F. & M. Schaefer Brewing Company, 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721.

Schaefer and Indrelunas both were concerned with the substance of the court order in determining whether a final judgment was rendered. The court in both cases, in addition to deciding whether a judgment had been actually rendered by the lower court, deemed it essential that the judgment be entered in the civil docket before the judgment was final for purposes of appeal.

While this at first blush might appear to be excessively formal, it is obvious on close examination that such a rule is necessary so that parties may effectively determine rights. As was said in Indrelunas, quoting Moore on Federal Practice concerning the separate document provision of Rule 58: 'This represents a mechanical change that would be subject to criticism for its formalism were it not for the fact that something like this was needed to make certain when a judgment becomes effective, which has a most important bearing, Inter alia, on the time for appeal and the making of post-judgment motions * * *.' United States v. Indrelunas, Supra, 411 U.S. at 220--221, 93 S.Ct. at 1564 quoting 6A Moore, Federal Practice, § 58.04(4.--1), pages 58--161.

This language, as well as most of the opinion in Indrelunas, relates to the Rule 58 requirement of the Federal Rules of Civil Procedure that '(e)very judgment shall be set forth on a separate document.' The opinion, however, treats the separate document rendition and the civil docket entry as equal requirements under that rule. The quoted language, therefore, is just as applicable to the docket entry provision of Rule 58. This is also clear from the court's decision in United States v. F. & M. Schaefer Brewing Company, Supra. See also Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir.); Jenkins v. United States, 325 F.2d 942 (3d Cir.); Sears v. Austin, 282 F.2d 340 (9th Cir.); Greenwood v. Greenwood, 234 F.2d 276 (3d Cir.); Healy v. Pennsylvania R....