CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-1. Commencement of civil actions.
There shall be one form of civil action in magistrate court.
Civil actions shall be commenced by the payment of the fees
required by article three of this chapter and by providing any
magistrate court clerk, magistrate court deputy clerk, or
magistrate assistant with a concise statement, either oral or
written, of the nature of the cause of action. Where such
statement is filed by a commercial creditor, the statement shall
include, but not be limited to, a setting forth of the amount of
the original obligation, the portion thereof which constitutes
principal, the portion thereof which represents interest, the date
and amount of payments thereon, the amount, if any, credited for
the sale of repossessed collateral, and the amount alleged to be
due. The magistrate court clerk, the magistrate court deputy
clerk, or magistrate assistant shall immediately prepare a summons
in such form and containing such information as may be required by
the rules of the supreme court of appeals. The summons shall be
dated the same day the request therefor is received and the
appropriate fees received, and the action shall be deemed commenced
as of that date. The magistrate assistant shall thereupon forward
the matter to the magistrate court clerk together with any service
of process fees which may have been collected.
Upon receipt of the matter by the magistrate court clerk, such
clerk shall docket the same in a central docket, and shall sign the
summons and forward it, together with any service of process fees,
to the sheriff for service. Such clerk shall assign the action for
trial in the manner as shall be prescribed by the judge of the circuit court, or the chief judge thereof if there is more than one
judge of the circuit court, to promote and secure the convenient
and expeditious transaction of the business of the court.
§50-4-2. Commencement of criminal prosecutions.
Except where the provisions of this code or rule of the
supreme court of appeals permit the commencement of a criminal
prosecution through the issuance of a citation, a criminal
prosecution shall be commenced by the filing of a complaint in
accordance with the requirements of rules of the supreme court of
WVC 50 - 4 - 2 A
§50-4-2a. Initial appearance and arraignment by video to be
conducted by magistrate court wherein offense is
(a) Except as provided by the provisions of subsection (b) of
this section, whenever a person already detained in a regional jail
facility is served with a criminal complaint, the initial
appearance or arraignment, if accomplished by the use of a video
imaging system, shall to the extent practicable be before a
magistrate of the charging jurisdiction. If such is not
practicable, a magistrate of the jurisdiction in which the regional
jail facility is located may preside over the proceeding.
(b) An order of the supreme court of appeals authorizing a
magistrate or magistrates to conduct pretrial proceedings by use of
video imaging shall supercede the requirements set forth in
subsection (a) of this section.
§50-4-3. Appointment of counsel in criminal proceeding.
In any criminal proceeding in a magistrate court in which the
applicable statutes authorize a sentence of confinement the
magistrate shall at the time of the initial appearance advise a
defendant of his right to counsel and his right to have counsel
appointed if such defendant cannot afford to retain counsel. In
the event a defendant requests that counsel be appointed and
executes an affidavit that he is unable to afford counsel, the
magistrate shall stay further proceedings and shall request the
judge of the circuit court, or the chief judge thereof if there is
more than one judge of the circuit court, to appoint counsel. Such
judge shall thereupon appoint counsel. If there is no judge
sitting in the county at the time of the request, then the clerk of
the circuit court shall appoint counsel from a list of attorneys in
accordance with the rules established by such judge of the circuit
court. Counsel shall be paid for his services and expenses in
accordance with the provisions of article twenty-one, chapter
twenty-nine of this code.
§50-4-4. Long-arm jurisdiction; manner of service in civil cases.
Magistrate courts shall have long-arm jurisdiction as follows:
Over domestic and foreign corporations as provided in section
fifteen, article one, chapter thirty-one of this code; over
nonresident holders of consumer instruments as provided in section
one hundred thirty-seven, article two, chapter forty-six-a of this
code; over domestic and foreign limited partnerships as provided in
section four, article nine, chapter forty-seven of this code; over
voluntary associations and business trusts as provided in section
five, article nine-a, chapter forty-seven of this code; over
nonresident motorists as provided in section thirty-one, article
three, chapter fifty-six of this code; and over nonresidents with
certain contacts with this state as provided in section
thirty-three, article three, chapter fifty-six of this code.
Service of process in civil actions shall be made in the same
manner as is provided for service of process in trial courts of
§50-4-4a. Appearance in civil cases.
Any party to a civil action in a magistrate court may appear
and conduct such action in person, by agent or by attorney.
Appearance by an agent or attorney shall have the same effect as
appearance by the party represented, and the appearance by an agent
shall not constitute the unlawful practice of law. No magistrate
may act as such agent or attorney.
§50-4-5. Return date in civil action; setting of trial date;
failure to appear or notify.
Except as may otherwise be provided by law, each summons in a
civil action shall notify the defendant that he must appear within
twenty days after service of the summons upon him or that he must
otherwise notify the magistrate court by that time that he wishes
to contest the matter.
If the magistrate court is notified by the defendant that he
wishes to contest the matter a trial date shall be set in
accordance with the supervisory rules of the supreme court of
If no appearance or other notification is made within twenty
days after the service of the summons on the defendant, or within
such other time as may be provided by law, judgment by default may
be entered in accordance with the provisions of section ten of this
At any trial in any matter involving unlawful entry and
detainer and in the trial of any case in any way involving the
possession, use or control of rental property, it is permissible
for a party to plead, prove and obtain judgment for all rent due
and owing the party.
§50-4-6. Return date in criminal proceedings; setting trial date.
When a warrant has been duly executed or when a defendant
appears in response to a summons, the defendant shall be notified
of the return date set by the court. The defendant shall appear
before the magistrate on or before the return date. In the event
a trial or preliminary examination is not expressly waived by such
defendant, the magistrate shall set a date for such trial or
preliminary examination and shall notify all parties.
§50-4-7. Disqualification of magistrate.
A motion for the disqualification of a magistrate in a
magistrate court proceeding shall be filed in accordance with the
requirements of the rules of the supreme court of appeals.
WVC 50 - 4 - 8
§50-4-8. Removal to circuit court.
At any time before trial in a civil action involving less than
two thousand five hundred dollars the action may be removed to
circuit court upon the concurrence of all parties and upon the
payment of the circuit court filing fee. At any time before trial
in a civil action involving two thousand five hundred dollars or
more, any party may, upon payment of the circuit court filing fee,
cause such action to be removed to the circuit court. All
appropriate documents shall then be forwarded along with such fee
to the clerk of the circuit court. The matter shall then be heard
by the circuit court.
A defendant in a civil action may file a counterclaim and if
such counterclaim arises from the same transaction or occurrence
that is the subject matter of the initial claim they shall be tried
together. The failure to institute a counterclaim permitted by
this section shall not preclude the institution of an action on
such claim at a later date. The adjudication of the original claim
shall not constitute res judicata as to any such permitted
counterclaim nor shall it act as an estoppel as to such permitted
§50-4-10. Default judgment; confession of judgment.
(a) If a defendant in a civil action fails to appear or
otherwise notify the magistrate court within the time limits
prescribed by section five of this article that he wishes to
contest the action, the magistrate may render judgment as justice
may require as follows:
(1) The magistrate shall render judgment by default only upon
affidavit or sworn testimony reflecting the nature of the claim,
whether or not it is for a sum certain or for a sum which can by
computation be made certain, the defendant's failure to appear or
otherwise notify the court within the time limits prescribed by
section five of this article that he wishes to contest the action
and supporting the relief sought. In the event the plaintiff's
claim is not for a sum certain or for a sum which can by
computation be made certain, the court shall require such further
proof by affidavit or sworn testimony as is necessary to determine
the propriety of the relief sought.
(2)(A) No judgment by default shall be rendered against a
person who is an infant, incompetent person or incarcerated convict
unless such person is represented in the action by a guardian ad
litem, guardian, committee, curator or other like fiduciary.
(B) No judgment by default may be rendered against a person in
active military service of the United States who has not made an
appearance unless the provisions of 50 App. U.S.C. §520 have been
followed, including the appointment of an attorney upon motion of
(b) Upon motion made by the defendant within twenty days after the date of such judgment, or, in the case of a person in the
military service, within the time provided by 50 App. U.S.C. §520,
the magistrate may, for good cause shown, set aside the judgment
and set the matter for trial.
(c) If a defendant offers to confess judgment at any time, the
magistrate shall take the same in writing and render judgment for
the amount confessed plus costs. In the event the amount claimed
by the plaintiff exceeds the amount confessed by the defendant the
plaintiff may request that the matter be set for trial. If the
plaintiff's recovery therein does not exceed the amount confessed,
costs shall be assessed against the plaintiff.
§50-4-11. Dismissal of actions for lack of jurisdiction.
If at any time a magistrate determines that an action involves
a matter outside of or an amount in excess of the jurisdiction of
the magistrate court, the action shall be dismissed without
prejudice. Judgment shall be awarded against the plaintiff in such
event for any costs incurred by defendant. A plaintiff may, at any
time before such dismissal, forgive in writing any amounts which
may be in excess of the monetary limitation of the court's
jurisdiction and confer jurisdiction thereby.
§50-4-12. Dismissal of actions for failure to appear, testify,
A magistrate may render judgment against the plaintiff
dismissing his action with prejudice to a new action and awarding
costs to the defendant when (a) the plaintiff fails to appear and
prosecute his action at the proper time for appearance; (b) the
plaintiff fails or refuses to testify when properly required to do
so; or (c) the plaintiff fails to give security for costs when
properly required to do so. In cases (a) and (b) if the plaintiff
shows cause why his action should not have been dismissed, the
magistrate may set aside such judgment and continue the matter
before him or may dismiss the action without prejudice.
A magistrate shall dismiss a claim without prejudice if the
summons is defective or erroneous and cannot properly be amended.
A magistrate shall dismiss a claim without prejudice if the
plaintiff requests such dismissal before trial.
The dismissal of a claim shall not affect the right of any
party to proceed to trial upon a counterclaim.
§50-4-13. Intercounty institution of civil actions.
A civil action may be instituted before a magistrate court
clerk, magistrate court deputy clerk, or magistrate assistant in
any county when the matter should be heard in another county. The
clerk, deputy clerk, or magistrate assistant before whom such
matter is instituted shall, in such event, forward all fees
collected together with an appropriate statement of the matter to
the magistrate court of the appropriate county. The clerk, deputy
clerk, or magistrate assistant receiving such information and fees
shall proceed with the matter as if it were actually instituted