State ex rel. Kern v. Santucci

494 S.E.2d 911, 201 W. Va. 144, 1997 W. Va. LEXIS 151
CourtWest Virginia Supreme Court
DecidedJuly 11, 1997
DocketNo. 24131
StatusPublished
Cited by4 cases

This text of 494 S.E.2d 911 (State ex rel. Kern v. Santucci) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Kern v. Santucci, 494 S.E.2d 911, 201 W. Va. 144, 1997 W. Va. LEXIS 151 (W. Va. 1997).

Opinion

MAYNARD, Justice:

In this original proceeding in prohibition the relators, Ron Kern and Sandra Kern, pray that this Court prohibit the respondent, who is a magistrate of the Jefferson County Magistrate Court, from blocking their appeal from, and from refusing to execute a stay of execution against, a judgment rendered against them. The relators claim that the respondent has wrongfully demanded that they post an $800.00 bond before allowing them to proceed with their appeal. After reviewing the questions raised and the documents filed in this case, this Court believes that the respondent properly required the relators to post an appeal bond. However, the Court also believes that under the particular facts of this case, the respondent exceeded her legitimate authority in imposing the bond, without providing the relators with timely notice of the bond requirement.

The documents filed with this Court show that some four years prior to the institution of this proceeding the relators purchased a Siberian Husky puppy known as “Queen Jessica, II,” also known as “Jessie.” After purchasing Jessie the relators obtained American Kennel Club papers registering Jessie and showing their ownership.

On January 19, 1997, Jessie, along with several other registered Siberian Huskies owned by the relators, wandered away from their home. The other dogs returned immediately, but Jessie remained absent. About the same time, Brian S. Riedmuller, who was a resident of Maryland, but who was visiting relatives in Jefferson County, discovered a Siberian Husky which he took to his home in Maryland. Four weeks after Jessie disappeared Mr. Riedmuller brought the dog which he had found back with him when he again visited his relatives. At that time the dog, which was Jessie according to the rela-tors, apparently wandered back to the rela-tors’ home. After her return the relators bred her with another of their Siberian Huskies, and she had a litter of puppies on May 11,1997.

On March 20,1997, after Jessie, or the dog claimed to be Jessie, returned to the relators’ home, Mr. Riedmuller filed a civil action against the relators in the Magistrate Court [146]*146of Jefferson County. In that civil action he sought the return of the Siberian Husky which the relators called “Jessie.”

A trial was conducted on Mr. Riedmuller’s complaint on April 28, 1997, in Jefferson County Magistrate Court. The respondent presided at that trial. At the conclusion of the trial the respondent found in favor of Mr. Riedmuller and ordered that the respondents return the dog to Mr. Riedmuller by Sunday, May 18, 1997. She also directed that the puppies be turned over to Mr. Riedmuller.

The relators, who believed that the respondent had committed error during the trial of the case, resolved to file an appeal. Consequently, on Friday, May 16, 1997, the rela-tors, through counsel, contacted the Clerk in the Magistrate Court of Jefferson County to inquire as to the amount of bond necessary to prosecute the appeal. According to the petition in this case, the Deputy Clerk of Magistrate Court, Ruthie Carr, advised the relators’ attorney that no entry had been made by the respondent magistrate on the civil case history form as to the assessment of any bond and that there was no notation on the sheet as to the dispositional activity or judgment order. The relators allege that when their counsel asked to speak with the respondent magistrate herself, he was advised that the respondent was not on duty and that the on-duty magistrate would not come to the phone or take any action to interfere with the respondents’ case.

Thereupon, counsel for the relators inquired as to the amount of bond that would be required by the deputy clerk to process and forward an appeal to the Circuit Court of Jefferson County, and according to the rela-tors, the deputy clerk replied that she would assess no bond since the respondent had not made any bond notation in the file. It appears that the deputy clerk also represented that she had checked the computer to verify that no bond information had been entered.

Apparently to ensure that an appeal was filed in a timely manner, the relators’ counsel completed a civil appeal bond and forwarded it to the magistrate office on the last day for perfecting an appeal in a timely manner. The bond indicated that it was in the amount of “0” dollars.

The relators allege that on Monday, May 19, 1997, apparently after the appeal time had expired, respondent Magistrate Santucci corrected the civil case history sheet in their case to show that an $800.00 bond was required and that the relators had failed to post that bond.

Subsequently, when the relators attempted to prosecute their appeal in the Circuit Court of Jefferson County, the circuit court refused to hear their petition for appeal because the $800.00 appeal bond, which the circuit court believed was required, had not been posted.

In the present proceeding the real claim of the relators is that the $800.00 bond was wrongfully required since the bond requirement was imposed after the fact. They argue that, in imposing the bond requirement after the fact, the respondent magistrate exceeded her legitimate jurisdiction.

■ Rule 18 of the Rules of Civil Procedure for Magistrate Courts governs the taking of an appeal from a magistrate’s decision to a circuit court in the State of West Virginia. The Court in reviewing this rule notes that subsection (b) specifically provides that:

The magistrate shall require the appellant to post a bond with good security in a reasonable amount not less than the sum of the judgment and the reasonable court costs of the appeal, upon the condition that such person will satisfy the judgment and any court costs which may be rendered against the appellant on the appeal. The magistrate court clerk or deputy clerk shall collect the bond and the circuit court filing fee at the time the appeal is filed unless the person or entity filing the appeal is permitted to proceed without prepayment. The magistrate court clerk or deputy clerk shall forward any collected bond and fee along with the appropriate documents to the circuit court clerk.

The use of the word “shall” is usually considered to be a mandatory word in enactments such as Rule 18(b) and has generally been construed as depriving a party required to do something of discretion to do that act. Ruble v. Office of Secretary of State, 192 W.Va. 134, 451 S.E.2d 435 (1994); Rogers v. [147]*147Hechler, 176 W.Va. 713, 348 S.E.2d 299 (1986); and Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).

In this Court’s view the use of the word “shall” in Rule 18(b) makes it mandatory for a magistrate to require a party to post a bond when an appeal is sought from a judgment rendered in magistrate court. This conclusion is buttressed by the fact that West Virginia Code § 50-5-12(a) states, in part:

Any person may appeal the judgment of a magistrate court to the circuit court as a matter of right by requesting such appeal not later than twenty days after such judgment is rendered or not later than twenty days after a decision is rendered upon a motion to set aside such judgment.

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Related

Wolfe v. Welton
558 S.E.2d 363 (West Virginia Supreme Court, 2002)
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505 S.E.2d 701 (West Virginia Supreme Court, 1998)

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Bluebook (online)
494 S.E.2d 911, 201 W. Va. 144, 1997 W. Va. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kern-v-santucci-wva-1997.