HOW TO USE THE
MAGISTRATE COURT OF WEST VIRGINIA

Magistrate Court is meant to be a less formal court where you can present your case in your own words without being represented by a lawyer. If you want, you can have a lawyer present. If the other side has a lawyer or if your claim is for a large amount of money (over $500, for instance), it is especially advisable to have legal representation.

The magistrate court is the first of three levels of courts in West Virginia; the second level is the Circuit Court and the highest level is the Supreme Court of Appeals. Magistrates are not required to be attorneys or have either a law degree or a college degree. They must, however, have a high school education and attend courses of instruction in rudimentary principles of law and procedure.

Magistrates may hear almost all civil actions in which someone sues for money, damages or the return of personal property where the amount involved is $5,000 or less. They also hear actions where a party sues to recover possession of real estate that he/she owns, as in a landlord/tenant dispute.

STARTING THE LAWSUIT

THE COMPLAINT

If you want to bring suit against someone in magistrate court, you start the action by filing a complaint in the magistrate's office. The magistrate's office for Cabell County is located in the basement of the Cabell County Courthouse at 5th Avenue and 8th Street in Huntington.

The office has a complaint form on which you give a clear and simple statement of your claim. You should also have a compete legal name and mailing address for the party you are suing. In the court action that you start, you are called the plaintiff and the person or business you are suing is the defendant.

If you are suing a business, call the Secretary of State's office in Charleston (1-348-2254) to find out if the business is incorporated in West Virginia and the name and address of the registered agent. This is the person who received notice of the suit. If the business is not incorporated in any state, you must sue the owner, not the name of the business itself. You can find out the name and address of the owner from the office of the county clerk in the county where the business is located. (The Cabell County Clerk can be contacted at 526-8625).

In your statement you should explain the basis of your claim. It is not enough to say that the defendant owes you a certain amount of money; state why you believe he/she does. Also try to identify as specifically as possible the transaction or service you gave in exchange for the money. This allows the defendant to know which debt you are talking about. If there is a written contract or note, attach a copy to the complaint. Do not give the original of a document; you may want it later at trial.

You should also set forth what you want the court to do, which is known as the relief requested. Usually you are asking the court to order the defendant to pay you a certain amount of money, and enter a judgment in that amount. Always add "plus costs and interest" to the amount you are suing for. If you win, you will get the court costs from the other party. If you want a jury trial, you should request one at the time of filing your complaint. If not, you must do so as soon as possible before the trial. You can have a jury trial if your claim is for more than

$20.00 or involves real estate.

CHOOSING THE COURT

In most cases, you should start your action in the magistrate court of the county in which the defendant lives, providing the defendant lives in West Virginia. With a nonresident defendant, the rules are more complicated. You should contact the magistrate's office for assistance.

If the defendant is a corporation, you may start your suit in the county either where the corporation has its main office, where it does business, where any of its chief officers live, or where the events that gave rise to your claim took place.

FEES

The fee for filing a complaint is based upon the amount you are suing for:

$0.00-500--$25.00; $501-1,000 --$30.00; $1,001-2,000 -- $35.00; $2,001-5,000 -- $45.00. The fee for the process service is an additional $20.00 per person. You may pay both of the fees in cash or by check, directly to the magistrate.

If you cannot afford to pay the court costs, you can complete and file a Financial Affidavit form, in which you swear on oath that you are unable to pay. The State will then pay these costs for you. (The Financial Affidavit form and all other forms referred to in this publication are available from the magistrate or the clerk.)

SERVICE

When you file the complaint you must also make arrangements for service of process on the defendant. Service of process is the delivery of the court summons and a copy of the complaint to the defendant. These papers give the defendant notice of the action. Normally, the summons and complaint are hand delivered by a deputy sheriff and are not sent by mail.

Due to the increasing number of legal papers which must be served by the Sheriff, many magistrate court cases may be delayed for weeks or occasionally months, because the summons and complaint have not yet been served upon the defendant. Until the defendant receives notice by receipt of these documents, the lawsuit remains in a holding pattern.

Two options are available to avoid this delay. First, the plaintiff may telephone the particular deputy sheriff entrusted with the papers on a daily basis, until the service has been achieved. Secondly, the plaintiff may choose a credible person -- any individual not a party to the lawsuit, who may personally serve the summons and complaint upon the defendant and subsequently, give written notice to the magistrate who is assigned the case, as to the date of service.

If you do not know where the defendant is, or if the defendant lives out of state or is a corporation, there may be different procedures for service. The magistrate's office or clerk will help you with this. In such cases the fees may differ from the normal fee for service charged by the sheriff. In addition, a $100.00 bond may be required if the defendant is a nonresident, but if you filed a Financial Affidavit form, you should not have to furnish such a bond.

AFTER THE DEFENDANT IS SERVED

After the defendant has been served, you will receive a copy of your complaint in the mail. This will contain the number of your case and the date that service was made. It will also indicate if the defendant could not be served. Ask the clerk what to do if this occurs.

The defendant has 20 days from the date of service to appear before the magistrate and file an answer. He/she should also send a copy of the answer to you. An answer form is provided in the magistrate's office.

If the defendant fails to answer your complaint within the required time, you should ask the court to enter a default judgment against him/her in the amount you have requested. There is a "Default Judgment Affidavit" form to fill out for this purpose. The judgment is enforceable against the defendant if he/she does not comply. In that case, ask the magistrate how to institute enforcement proceedings.

Sometimes the defendant will decide not only to answer, but also to sue in return. (This is a risk to be considered when filing). If you receive a summons and complaint or "counterclaim" from the party you are suing, you must appear before the magistrate within 20 days and file an answer. Be sure to mail a copy of the answer to the other party or his/her attorney. If the two claims relate to the same transaction, the magistrate will put them together and set one trial for both.

When a complaint or counterclaim is filed against you it is always a good idea to contact an attorney immediately. Depending on the amount of the claim and other factors, you may want to have an attorney represent you in court.

PREPARING FOR THE TRIAL

If the defendant does answer, your case will be sent for trial and both parties will be notified by mail of the date. The date of the trial is usually about two weeks from the time you answer is filed. You should prepare for trial by gathering all evidence of your claim and bringing it to court with you. This includes documents such as contracts, notes, receipts or canceled checks, and witnesses who have knowledge which might help your case.

If a witness does not agree to come, ask the magistrate to issue a subpoena. This is an order telling the witness he/she must appear. The witness has the right to request a fee from you, plus mileage for travel to court, although such requests are rare.

Organize all the facts of your case and your arguments and write them down. This way you can present your case clearly and not forget any important points you wish to make.

YOUR DAY IN COURT

You and your witness should be present and ready for trial on the designated day and time. If you need more time to prepare, you may request a continuance or postponement of the trial. All parties are allowed one continuance of five to ten days. You may be able to get a second continuance if you need more time and con demonstrate a good reason for it, but there is no guarantee.

If the defendant is not present on the trial date, you must still show proof of your claim before you can get a judgment in your favor. If the defendant is present, you should present your side of the case first. Make a brief opening statement summarizing your claim and evidence. You should then testify as to the specific facts, and have your witnesses do the same. The defendant may question or cross-examine you and your witnesses after each of you has finished giving testimony.

The defendant then presents his/her side of the case. He/she makes an opening statement (unless he/she did so immediately after yours at the beginning of the trial), and testifies and presents any witnesses. You can cross-examine the defendant and the witnesses. Both parties finish by giving a short statement summarizing their evidence and argument, and the magistrate decides and enters a judgment.

Sometimes the magistrate will encourage the parties to negotiate a settlement or agreement, which you can do at any time before judgment. If you make a settlement before the trial starts, be sure to tell the magistrate. Of course you do not have to make a settlement before the trial starts, but in some cases you can get more in a compromise than you can hope to get if you have a trial.

It is a good idea to seek legal advice about the merits of your case before you go to court so that you will have more of an idea about your chances of winning or losing at trial. This way you can better evaluate whether a particular settlement offer is to your advantage.

If you believe the magistrate is not an impartial judge of your case and is biased against you, you can file an affidavit called an "Affidavit of Prejudice" stating your belief and the reasons for it. Check with the magistrate's office to see when this should be done. Usually your case will be transferred to another magistrate. However, it is best to ask for such a transfer only if you have good reason to believe the magistrate is biased.

APPEAL

You can always appeal the magistrate's final judgment in the Circuit Court. Your appeal must be filed within 20 days after the magistrate court issues its judgment. If you wish to appeal, consult the magistrate or the clerk.

DISCLAIMER: This does not contain information on what to do if you are the defendant in magistrate court, or how to deal with criminal proceedings before a magistrate. In addition, this information does not include specific legal advice about your case or about whether it is a good idea to be represented in court by a lawyer.

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