Opinion
Submitted Feb. 16, 1965.
Opinion Superseded 145 S.E.2d 446.
Page 49
Syllabus by the Court
1. On appeal of a case from a judgment of a trial court of record, this Court may consider an opinion of the trial judge properly made a part of the record in order to determine the ground or grounds upon which the judgment of the trial court was based.
2. The requirement of Rule 59(b) of the Rules of Civil Procedure that a motion for a new trial shall be served not later than ten days after entry of the judgment is mandatory and jurisdictional. The time required for service of such a motion cannot be extended by the court or by the parties.
3. Rule 5(d) of the Rules of Civil Procedure requires that all papers after the complaint required to be served upon a party shall be filed with the court within a reasonable time after the service thereof is made; and in order that the filing shall be deemed proper and complete, there shall be endorsed on or appended to every such paper either a certificate of the attorney or the party that the paper was served in the manner prescribed by Rule 5(d), or a certificate of acceptance of service by the attorney or party to be served, which certificate shall show the date and method of service or the date of the acceptance of service.
4. Courts of record can speak only by their records and what does not so appear does not exist in law.
5. When a paper required by the Rules of Civil Procedure to be served is served by an attorney or by a party, as distinguished from service by an officer acting in his official capacity in the performance of a duty imposed on him by law, there is no legal presumption of the verity of the attorney's or the party's certificate of service.
Simpson & Baughan, Spencer P. Simpson, Steptoe & Johnson, Edward W. Eardley, Charleston, for appellants Settle and others.
Kay, Casto & Chaney, Edward H. Tiley, Hoyt N. Wheeler, Charleston, for appellants Moles and others.
Larry W. Andrews, Rudolph L. DiTrapano, William E. Hamb, Charleston, for appellee.
CALHOUN, Judge:
This case is before the Court on appeal from an order entered on January 8, 1964, by the Circuit Court of Kanawha County, sitting as an intermediate appellate court, by which order the circuit court refused to grant an appeal from a final judgment of the Court of Common Pleas of Kanawha County embodied in an order entered on August 27, 1963.
The appeal was refused by the circuit court on the ground that the judgment appealed from was plainly right. In so doing, the circuit court held that the court of common pleas correctly and properly held that it had no jurisdiction to consider a motion to set aside a verdict and judgment in favor of the plaintiff and to grant the defendants a new trial, because of the failure of the defendants to comply with the provisions of R.C.P. 59(b).
On June 19, 1962, the plaintiff, Dennis Boggs, sustained a personal injury resulting from the falling of a large piece of slate from the roof of the coal mine in which he was then employed. He was transported in a coal car from the place where the accident occurred to the mouth or entrance of the mine. He was then placed in an ambulance to be transported to a hospital in Charleston. The ambulance was owned by defendants Joseph W. Knight and William Ray Young, who were doing business under the name of Knight and Young Funeral Home. While the ambulance was being driven by defendant William O. Settle, Jr., on U.S. Route 119 in Kanawha County, it became involved in a collision with a dump truck owned by defendant Charles O. Moles while it was being driven by his son, the defendant Charles David Moles.
The collision was quite violent and resulted in serve personal injuries to the plaintiff. Though there was some question at the trial concerning the nature and extent of the injury suffered by the plaintiff in the mine, it is clear from the evidence that the injury sustained in the mine was relatively minor in nature and in the degree of its seriousness when considered in relation to the injuries sustained by the plaintiff in the collision of the two motor vehicles.
An action was instituted by Dennis Boggs in the court of common pleas against William O. Settle, Jr., Joseph W. Knight and William Ray Young, doing business as Knight and Young Funeral Home, Charles David Moles and Charles O. Moles, by which action the plaintiff sought to recover damages in the sum of $250,000 from the defendants for the personal injuries sustained by the plaintiff as a result of the collision of the two motor vehicles. In the trial of the action, the jury returned a verdict on January 10, 1963, in favor of the plaintiff in the sum of $100,000 against all of the defendants and, on January 11, 1963, judgment was entered on the verdict.
By an order entered in the court of common pleas on January 18, 1963, the defendants filed and made a part of the record their joint and several motion to set aside the verdict of the jury and the judgment entered thereon and to grant the defendants a new trial. The court of common pleas, by the order entered on August 27, 1963, refused to consider the motion on the ground that it had lost jurisdiction to do so for reasons set forth in the court's written opinion dated August 3, 1963, which opinion was, by the court order, made a part of the record. The Court is authorized to consider the opinion in these circumstances in order to determine the reason assigned by the court for its action in refusing to consider the motion. Rollins v. Daraban, 145 W.Va. 178, pt. 2 syl., 113 S.E.2d 369. The brief written opinion of the trial court states that 'the Court is of the opinion that defendants failed to comply with the provisions of Rule 59(b) of the Rules of Civil Procedure, and that therefore this Court has lost jurisdiction to entertain said motions of the defendants.'
The order entered by the circuit court on January 8, 1964, states that the judgment of the trial court is plainly right, that the appeal was denied and the petition for appeal was dismissed, for reasons stated in the circuit court's written opinion which, by the court order, was made a part of the record. In the written opinion, the judge of the circuit court stated: 'I am of opinion that the Court of Common Pleas properly ruled that the defendants failed to show compliance with Rule 59(b), R.C.P., thereby waiving the errors assigned under the application of Rule 59(f), R.C.P. The affidavits filed in the Court of Common Pleas subsequent to the rendition of judgment merely crystalize the disputed question of fact before the Court of Common Pleas of whether or not service of the motion was actually had. The trial court having found that such service was not made on counsel for the plaintiff, this question cannot be reopened and reconsidered upon this appeal. The finding of fact by the trial court is entitled to great weight, and all the authorities so hold.'
Neither the court of common pleas nor the circuit court passed upon the assignments of error contained in the defendants' joint and several motion to set aside the verdict and judgment and to grant the defendants a new trial. Briefs and oral arguments of counsel for the respective parties before this Court have dealt with the sole question decided by the trial court and by the circuit court relating to R.C.P. 59(b), and also with the various assignments of error relied upon by the defendants in their joint and several motion. It is obvious that the threshold question for our consideration is whether the trial court correctly held that it had lost jurisdiction to consider the defendants' joint and several motion.
R.C.P. 59(b) is as follows: 'A motion for a new trial shall be served not later than 10 days after the entry of the judgment.' R.C.P. 6(b) deals with enlargement of periods of time provided by the rules for doing any act and contains the following language: '* * * but neither the court nor the parties may extend the time for taking any action under Rules 50(b), * * *59(b) * * *.' R.C.P. 5(b) contains the following language: 'Whenever under these rules service is required or permitted to be made upon a party represented by an attorney of record the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. * * * Service by mail is complete upon mailing.' (Italics supplied.) R.C.P. 5(d) is as follows: 'All papers after the complaint required to be served upon a party shall be filed with the court within a reasonable time after they have been served or service of such papers has been accepted. There shall be endorsed on or appended to every such paper either a certificate by the attorney or the party that the paper was served in the manner prescribed by this rule or a certificate of acceptance of service by the attorney or the party to be served. Such certificate shall show the date and method of service or the date of acceptance of service.' (Italics supplied.)
We believe that the provisions of R.C.P. 59(b) which require that a motion for a new trial shall be served not later than ten days after the entry of the judgment are mandatory and jurisdictional; and that, by reason of R.C.P. 6(b), the parties have no legal authority to extend the period prescribed for service of the motion. Ohlinger's Federal Practice, Volume 3-A, page 393; Cyclopedia of Federal Procedure (3d Ed.), Volume 10, page 105; Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.), Volume 3, page 378 and page 381; Moore's Federal Practice (2d Ed.), Volume 6, page 3846; Lugar & Silverstein, W.Va.Rules, pages 451-52 and page 513.
It is quite true that, under R.C.P. 5(b), service by mail is complete upon mailing, but it is just as clear that the motion for a new trial must be served, in a manner recognized by the Rules, not later than ten days after entry of the judgment in order that the trial court can have jurisdiction to entertain the motion.
It is true that an order entered on August 27, 1963, states that, on April 6, 1963, the two motions were argued orally and that briefs in relation thereto were filed; and that counsel for the plaintiffs orally objected on June 3, 1963, to a consideration by the Court of defendants' motion. Because we are of the opinion that a failure to comply with R.C.P. 59(b) cannot be corrected by waiver, we are not required to determine whether the order of August 27, 1963, complied with the requirements of a nunc pro tunc order to the extent that it purports to show what transpired before the court on much earlier dates. Payne v. Riggs, 80 W.Va. 57, pt. 2 syl., 92 S.E. 133; Bloyd et al. v. Schroggins et al., 123 W.Va. 241, pt. 2 syl., 15 S.E.2d 600; Baker v. Gaskins et al., 125 W.Va. 326, pt. 1 syl., 24 S.E.2d 277; Chaney v. State Compensation Commissioner et al., 127 W.Va. 521, 33 S.E.2d 284; McCoy et al. v. Fisher et al., 136 W.Va. 447, pts. 1 and 2 syl., 67 S.E.2d 543; Stephenson v. Ashburn, 137 W.Va. 141, pt. 2 syl., 70 S.E.2d 585. It is a fundamental rule that a court of record speaks only by its records and that what is not thereby made to appear does not exist in law. State ex rel. Ashworth v. Boles, W.Va., 132 S.E.2d 634, 635; Bowles v. Mitchell, 146 W.Va. 474, pt. 1 syl., 120 S.E.2d 697; Blain v. Woods, 145 W.Va. 297, pt. 3 syl., 115 S.E.2d 88; Davis v. Fire Creek Fuel Co. et al., 144 W.Va. 537, pt. 9 syl., 109 S.E.2d 144; State ex rel. Kuhn v. Adams, 143 W.Va. 551, 555, 103 S.E.2d 530, 532. Even if it were established by the record that counsel for the plaintiff appeared before the trial court to argue the defendants' motion on its merits, such appearance could not restore jurisdiction if the trial court had already lost jurisdiction to entertain the defendants' motion. Furthermore, R.C.P. 6(b) expressly and clearly states that neither the court nor the parties may extend the time prescribed by R.C.P. 59(b). If the court is powerless to do so, and if the parties cannot do so by agreement, clearly the ten-day period could not be extended on the basis of mere waiver by conduct.
Under the provisions of R.C.P. 5(d), the defendants were required to file their motion with the court within a reasonable time 'after' it was served. The motion was filed by court order on January 18, 1963, one day before, according to defendants' counsel, it was served by the mailing of a copy of the motion to one of counsel for the plaintiff. We do not hold that this irregularity was of a fatal or jurisdictional nature; but R.C.P. 5(d) contains other language to which we feel constrained to attach significance. After stating that a motion such as that in this case must have been filed with the court within a reasonable time after service thereof, R.C.P. 5(d) includes the following two sentences: 'There shall be endorsed on or appended to every such paper either a certificate by the attorney or the party that the paper was served in the manner prescribed by this rule or a certificate of acceptance of service by the attorney or the party to be served. Such certificate shall show the date and method of service or the date of acceptance of service.' (Italics supplied.)
In order to glean the meaning, purpose and intent of R.C.P. 5(d), we must consider its language in its entirety. We are of the opinion that the requirement that the certificate of the attorney or party shall be endorsed on or appended to 'every such appear' refers to the paper (the motion in this case) 'filed with the court within a reasonable time.' That is to say, it was necessary that the motion in this case be served within ten days after the entry of the judgment and that there be endorsed thereon or appended thereto a certificate of service by the attorney who claims to have served the motion by mailing. It was not necessary to file the motion within the ten-day period, but only within a reasonable time. We are of the opinion, however, that, within a reasonable time, it was necessary that the motion, with the required certificate of the attorney endorsed thereon or appended thereto, be filed with the court; and that the filing of the motion within a reasonable time, but without the certificate of service, does not constitute a compliance with the provisions of R.C.P. 5(d).
A certificate made by counsel for defendants Charles Divid Moles and Charles O. Moles was placed in the office of the clerk of the trial court on June 4, 1963, with request that it be 'appended' to the motion. The clerk did not mark it 'filed' but merely marked it as 'lodged' in his office on June 4, 1963. On June 16, 1963, according to a court order of that date, counsel for the plaintiff filed a written motion to dismiss the joint and several motion previously made in behalf of the defendants. This motion made in behalf of the plaintiff was served upon defense counsel by mailing on June 18, 1963. The certificate of service of defendants' joint and several motion was left at the clerk's office almost five months after the date of the judgment. The certificate of service, of course, had not in the meantime been endorsed on or appended to the motion. On November 13, 1963, more than two months after the trial court had entered its final judgment by which it declined to consider the defendants' joint and several motion, an order was entered by the trial court containing the following language: 'And that as a result of the matters and incidents above recited, there appears to be some confusion as to whether or not said certificate is properly a part of the record in this action, the Court for the purpose of clarification, and for the purpose only of making said certificate a part of the record in this action, does hereby grant the motion of the defendants, and it is, therefore, ORDERED that said certificate be, and the same is hereby, filed as of June 4, 1963, and made a part of the record in this action, to which action of the Court the plaintiff, by counsel, objects and excepts.'
The Court holds that it was necessary, within a reasonable time after the date of the alleged service of the defendants' joint and several motion, that the motion, with the attorney's certificate of service endorsed thereon or appended thereto, be filed with the trial court and that the defendants failed to comply with these requirements of R.C.P. 5(d). Even if it can be said that the certificate of service was appended to the motion, this was not until about five months after the date of the alleged service. We are of the opinion, therefore, that the motion with a proper certificate endorsed thereon or appended thereto was not filed within a reasonable time.
The second and third sentences of R.C.P. 5(d) are new in the sense that they are not included in the Federal Rules. Lugar & Silverstein, W.Va.Rules of Procedure, page 59. The second sentence is as follows: 'There shall be endorsed on or appended to every such paper either a certificate by the attorney or the party that the paper was served in the manner prescribed by this rule or a certificate of acceptance of service by the attorney or the party to be served.' (Italics supplied.) We do not, therefore, have the benefit of any court decision dealing with the effect or weight to be given to a cerfificate of service made by an attorney or by a party.
The earlier decisions of this Court applied and adhered to the common law rule relative to the verity of a return of service of process by a public officer, though the strictness of this rule has been relaxed in more recent decisions of this Court. Swartzwelder v. Freeport Coal Co., 131 W.Va. 276, 46 S.E.2d 813; Tioga Coal Corp. v. Silman, 125 W.Va. 58, 22 S.E.2d 873; Nelson Transfer & Storage Co. v. Jarrett, 110 W.Va. 97, 157 S.E. 46. The verity rule is based, in part at least, on a presumption of the proper discharge by a public officer of duties imposed upon him by law and upon the fact that the public officer's official bond may afford protection to anybody injured by an improper return of service made by him. Nuttallburg Smokeless Fuel Co. v. First National Bank of Harrisville, 89 W.Va. 438, 442, 109 S.E. 766, 768; Lynch v. West, 63 W.Va. 571, 574, 60 S.E. 606, 607; Talbott v. Southern Oil Co., 60 W.Va. 423, pt. 1 syl., 55 S.E. 1009; Rader v. Adamson, 37 W.Va. 582, pt. 3 syl., 16 S.E. 808. In case of service of process by an individual, the reasons for the application of the verity rule, in its original or in its modified form, do not apply; and, therefore, the presumption of regularity does not apply in case of a return of service made by an individual. Lynch v. West, 63 W.Va. 571, pt. 1 syl., 60 S.E. 606; McClung v. McWhorter, 47 W.Va. 150, 152, 34 S.E. 740, 741; Peck v. Chambers, 44 W.Va. 270, pt. 2 syl., 28 S.E. 706.
The verity rule cannot be applied in relation to the attorney's certificate of service in this case; and, he being a private individual, we are not cognizant of any basis in law for applying a presumption of the verity or regularity of such certificate. When the verity of the attorney's certificate was questioned in the trial court, we are of the opinion that its verity and regularity became a question for the trial court's determination. In making his determination, the trial judge was warranted in considering the fact that the certificate of service was not made until about five months after the date of the alleged service. There was then before the trial court a motion in behalf of the plaintiff to dismiss the defendants' joint and several motion. It was signed by the three attorneys for the plaintiff. It stated that the defendants had 'failed and neglected to serve upon plaintiff or his attorneys any motion for a new trial within Ten (10) days after the entry of the judgment * * *.'
Attorney Spencer P. Simpson, counsel for William O. Settle, Jr. and for Joseph W. Knight and William Ray Young, doing business as Knight and Young Funeral Home, in connection with consideration of the motions before the court on June 24, 1963, produced that which was represented to be a copy of a letter he wrote to Larry W. Andrews, one of counsel for the plaintiff, on January 19, 1963. The pertinent portion of the letter is as follows: 'Dear Larry: Here are the order and the motion which I have filed in connection with the above captioned matter. Very truly yours, Spencer P. Simpson.' There is nothing in the record which establishes clearly and precisely by whom and under what circumstances the original of the letter, with a copy of the motion enclosed, was actually mailed.
The two motions were argued before the trial court on June 24, 1963. Present were Larry W. Andrews, R. L. DiTrapano and William E. Hamb, attorneys for the plaintiff; and Spencer P. Simpson, Edward H. Tiley and Hoyt Wheeler, counsel for the defendants. Inasmuch as the trial judge was required to rely, in a great measure, upon assertions of counsel, verbal and written, in order properly to rule upon the motions before the court, we feel that certain statements of counsel, made before the court and included in the transcript are worthy of consideration in our appraisal of the trial court's ruling. Mr. Andrews, upon whom service of the motion is alleged to have been made, stated that the plaintiff's motion to dismiss was based, in part, on the ground 'that the defendants or their attorneys failed to serve upon the plaintiff or his attorneys their motion for a new trial within ten days * * *.' Other statements of counsel made in the presence of the court were as follows:
'MR. DiTRAPANO: We think the rule was enacted for this one purpose, to avoid all this misunderstanding, and I take it Mr. Simpson has refreshed his memory from a letter he had in his file and I say that advisedly because at the time we brought this up Mr. Simpson advised Mr. Larry Andrews and me he didn't have to serve any motion.
'MR. SIMPSON: I didn't what?
'MR. DiTRAPANO: It wasn't necessary.
'MR. SIMPSON: I told you both I didn't know whether I served you or not and I would have to go back to the office and check my file.
'MR. DiTRAPANO: You told us that.
'MR. ANDREWS: That it wasn't necessary.
'MR. DiTRAPANO: You told Larry verbally in front of the Federal Building.
'MR. ANDREWS: And he said it here.
'MR. DiTRAPANO: The letter he is trying to refresh his recollection from, there is a date on the letter when you dictated the letter and there is no indication when the letter with this motion was mailed.
'MR. SIMPSON: I know when I mailed it.
'MR. DiTRAPANO: You didn't know the day we raised the question.
'MR. ANDREWS: You said it wasn't necessary.
'MR. SIMPSON: Whether I said it was necessary or not and I mailed to you a copy of this motion and this order on January 19, 1963.
'MR. DiTRAPANO: From the letter you showed me right now and which I read into the record, there is no indication when that was mailed and there is an indication when your secretary typed it up.
'MR. SIMPSON: I know when my letters go out of the office and they go out on the day they are made.
* * *
* * *
'MR. DiTRAPANO: I will submit an affidavit that Larry was on vacation and I went up to Larry's office for eleven straight days and I will make an affidavit to this, and he wasn't there and he was down in Florida, and I went up there eleven straight days and there was no letter from Simpson and Baughan or a Spencer Simpson. Did you put it in a plain envelope or your letterhead?
'MR. SIMPSON: Letterhead.
'MR. DiTRAPANO: It wasn't there for eleven straight days.
'MR. ANDREWS: And when I came back we went to the clerk's office and Mike can tell you.
'MR. SIMPSON: When did you do that?
'MR. ANDREWS: When I came back.
'MR. SIMPSON: When was that?
'MR. ANDREWS: I don't know.
'MR. SIMPSON: And three months later you raised the point.
'MR. DiTRAPANO: We actually didn't want to embarrass you and you got ridiculous and wanted to settle the thing and it was a deliberate decision.
'MR. SIMPSON: Did you look at his mail?
'MR. DiTRAPANO: I looked for eleven straight days.
'MR. SIMPSON: And opened his mail?
'MR. DiTRAPANO: I looked for the letterhead. 'MR. TILEY: You went there for eleven days to see if anything came in?
'MR. DiTRAPANO: Yes, and you will see a long distance telephone call on my records and I called him and I said, 'Larry, we have got them."
On November 9, 1963, the three attorneys for the plaintiff made an affidavit stating 'that they have never been served by any of the defendants of any motion for a new trial in the case * * * that Spencer Simpson admitted his failure in not serving a motion for a new trial on plaintiff's counsel, by stating in the presence of the court of Honorable Dennis R. Knapp, Judge of the Common Pleas Court, that he did not have to serve plaintiff's counsel with a motion for a new trial.' This affidavit was made a part of the record by an order entered in the trial court on November 13, 1963. Spencer P. Simpson filed a counter-affidavit, dated November 13, 1963, stating that on January 19, 1963, he served upon Larry W. Andrews a copy of the motion for a new trial and a copy of the order filing it by mailing copies thereof to Larry W. Andrews at his address at Peoples Building, Charleston, West Virginia, and 'that at no time did he ever admit not having served on plaintiff's counsel the said Order and Notice of Motion for a New Trial.' The Simpson affidavit was filed and made a part of the record by a court order entered on November 13, 1963. These affidavits were, of course, made and filed after the entry of the final judgment order by the trial court but they are the affidavits which were referred to by the judge of the circuit court when he used the following language in his opinion: 'The affidavits filed in the Court of Common Pleas subsequent to the rendition of judgment merely crystalize the disputed question of fact before the Court of Common Pleas of whether or not service of the motion was actually had.'
Counsel for the defendants rely upon the following language contained in R.C.P. 4(j): 'Failure to make proof of service or publication within the time required does not affect the validity of the service of the process, notice, or order.' We consider this provision wholly inapposite because it relates to process to commence an action and cannot qualify or change the clear language of R.C.P. 59(b). Counsel for defendants rely also on R.C.P. 52(a), dealing with findings by a trial court. This provision also is inapplicable to the present case because the applicability of that rule is restricted by its beginning language: 'In all actions tried upon the facts without a jury or with an advisory jury * * *.'
We are cognizant of and willing at all times to follow and abide by the spirit, intent and purpose of the Rules as expressed in R.C.P. 1 that the Rules 'shall be construed to secure the just, speedy, and inexpensive determination of every action.' The same is true of R.C.P. 61, which contains the following language: 'The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.' However, we do not believe that such provisions require or authorize any court to disregard plain, unambiguous language in any part of the Rules which affect the substantial rights of parties and which are clearly designed to effectuate a just determination of matters in litigation without undue delay.
We are unable to perceive any error in the judgment entered by the Circuit Court of Kanawha County on January 8, 1964, by which that court declined to grant an appeal from the judgment of the Court of Common Pleas of Kanawha County on the ground that the judgment of the latter court was plainly right.
For reasons stated in this opinion, the judgment of the Circuit Court of Kanawha County, from which the appeal was granted to this Court, is affirmed.
Affirmed.
BERRY, J., dissents and files a dissenting opinion.
BROWNING, President, concurs in the majority opinion and files a concurring opinion.
BERRY, Judge (dissenting):
I dissent from the majority opinion in the disposition of this case on its present record. The majority opinion is based solely on the failure of the defendants to strictly comply with Rule 59(b) R.C.P., which reads as follows: 'A motion for a new trial shall be served not later than 10 days after the entry of the judgment.' The method of serving such motion is provided for in Rule 5(b), wherein the following language is contained: '* * * service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. * * * Service by mail is complete upon mailing.' (Emphasis supplied) Rule 5(d) R.C.P. provides that: 'All papers * * * shall be filed with the court within a reasonable time after they have been served * * *. There shall be endorsed on or appended to every such paper either a certificate by the attorney or the party that the paper was served in the manner prescribed by this rule * * *. Such certificate shall show the date and method of service * * *.'
The motion upon which this entire case turns is a motion for a new trial under Rule 59(a) R.C.P. The defendants made a motion in writing for a new trial and complied with the provisions of Rule 7(b)(1) R.C.P. and this is not questioned because the record clearly shows that it was done. The record also shows that it was done within 10 days of the entry of the judgment and that it was filed by a formal written order of the court in which the court ordered the written motion to be filed and took time to consider it.
It is true that the federal courts have held that under Rule 59(b) in the Federal Rules of Civil Procedure, which is in the identical language of the same rule in the West Virginia Rules of Civil Procedure, that the motion for a new trial must be served not later than 10 days after entry of the judgment and if it is only filed within such period it is a nullity in the trial court, but it does not interfere with the appellate court's jurisdiction if timely appealed. Steward v. Atlantic Refining Company, 3 Cir., 235 F.2d 570. However, it has never been held by any court that strict compliance with the part of Rule 5(d) with regard to the endorsement on the motion or a certificate by the attorney that the paper was served in the manner prescribed within a reasonable time was jurisdictional, or if such was not done within a reasonable time after it had been mailed that the motion was a nullity in the trial court. This is nothing but a return of service and it has never been held that such return had to be made at the time the summons, motion or paper was filed. All that is necessary is that service be had and the return could be made later. The service gives the court jurisdiction and the return is merely evidence of the jurisdictional fact. 14 M.J., Process, § 37; Buttery v. Robbins, 177 Va. 368, 14 S.E.2d 544; Rule 4(j) R.C.P. Also, the Federal Rules do not contain subdivision 59(f), which states: 'If a party fails tomake a timely motion for a new trial * * * the party is deemed to have waived all errors occurring during the trial which he might have assigned as grounds in support of such motion * * *.' (Emphasis supplied) There is no question in this case but that the motion was within 10 days after entry of the judgment, both made and filed in the Clerk's Office.
One of the attorneys for the defendants stated that he had mailed a copy of the motion and order sending it to one of the attorneys for the plaintiff on January 19, 1963, within the 10 day period. The attorneys for the plaintiff deny that the letter with the motion and order enclosed was ever received. However, if the letter with the enclosures was timely mailed it would make no difference whether it was or was not received. Rule 5(b) R.C.P. The record indicates that one of the attorneys for the plaintiff had a copy of the letter dated January 19, 1963, at the time this matter was argued before the trial court on June 3, 1963, and he read into the record from it. The certificate with regard to the method and date of such service required by Rule 5(d) R.C.P. was not appended to the motion until June 4, 1963, almost five months after the motion was filed.
It appears from the record in an order dated August 27, 1963, that argument on the motion was made by counsel for both the plaintiff and the defendants before the trial court on April 6, 1963, at which time apparently there was no objection raised by counsel for the plaintiff that the motion had not been timely served in accordance with the provisions of Rule 59(b) R.C.P. It was not until June 3, 1963 that counsel for the plaintiff moved for dismissal of the defendants' motion for a new trial on the ground that it had not been timely served. Apparently, when the motion was argued on April 6, 1963, they did not know that it had not been timely served.
No evidence was taken before the trial court on the question of whether the motion had been timely served. The attorney for the defendants said he timely served it by mail, and did not make his return until June 4, 1964, after the matter was raised by the attorneys for the plaintiff who said they had never received the notice by mail. The trial court merely held on August 3, 1963, in a written opinion made a part of the record, that he was: '* * * of the opinion that defendants failed to comply with the provisions of Rule 59(b) of the Rules of Civil Procedure, and that therefore this Court has lost jurisdiction to entertain said motions of the defendants.' No findings of fact or conclusions of law were contained in the order 'dismissing' the defendants' motion entered on August 27, 1963.
Although the Circuit Court of Kanawha County, acting as an Intermediate Appellate Court, stated in its order affirming the trial court that the trial court had made its ruling on a finding of fact, the record contains no finding of fact by the trial court. It merely stated that it was of the opinion that the defendants had not complied with Rule 59(b) R.C.P.
It should be pointed out that the trial court has never ruled on the defendants' motion to set aside the verdict. The only action taken was to sustain the plaintiff's motion to dismiss the defendants' motion. There is no rule in the Rules of Civil Procedure to cover such procedure. It was an entirely improper procedure. The only thing the trial court could have done after the defendants made the motion to set aside the verdict was either to overrule it, or to sustain it. The trial court did neither; consequently, there is nothing before us to decide. I would therefore reverse the judgments or orders of the Court of Common Pleas of Kanawha County and the Circuit Court of Kanawha County respectively refusing to consider the motion to set aside the verdict or refusing to grant a writ of error; and I would remand the case with directions to the trial court to hold a hearing and consider proper evidence of witnesses under oath relating to the mailing of the motion to set aside the verdict, and to make special findings of fact and state its conclusions of law on the motion.
This Court has the authority to remand this case without decision for the purpose stated above. It is an inherent power, and is used in cases where justice requires, such as in the one at bar, in order that appellate courts will know the exact reasons for the trial court's action. 5B C.J.S. Appeal and Error § 1836.
BROWNING, President (concurring):
I concur in the result reached by the Court in this case but I believe the majority has unnecessarily complicated a simple issue. The pertinent rules 59(b) and 5(d) are pari materia, the former clearly providing that a motion for a new trial shall be served within ten days after entry of a judgment and the latter just as clearly providing that a copy thereof shall be filed 'with the court within a reasonable time' thereafter; and that there shall be 'endorsed on or appended to' such paper 'either a certificate of the attorney or the party that the paper was served in the manner prescribed by this rule or a certificate of acceptance of service by the attorney or the party to be served.' (Italics supplied.) The filing of a copy of the motion in the clerk's office before service was alleged to have been had upon opposing counsel and, five months thereafter, appending to such motion an alleged certificate of service does not in any manner comply with the mandatory requirements of the pertinent rules. Therefore, inasmuch as no valid motion for a new trial was made within the prescribed period neither the court of common pleas nor the intermediate appellate court had jurisdiction to take any action in this case subsequent to the expiration of the statutory four months period except to hold, as a matter of law, that it was without jurisdiction to further consider the case.