# Stevens v. Saunders

> West Virginia Supreme Court · December 9, 1975 · 159 W. Va. 179

URL: https://www.frixlaw.com/law-library/cases/9567732

## Case

- **Full name:** Daniel Stevens and Maxine Stevens v. Robert Saunders
- **Court:** West Virginia Supreme Court
- **Decided:** December 9, 1975
- **Citations:** 159 W. Va. 179; 220 S.E.2d 887; 1975 W. Va. LEXIS 253
- **Precedential status:** Published
- **Opinion:** Dissent by Haden
- **Judges:** Haden, Neely, Flowers
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Frantz v. Palmer.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9567732

## How later opinions describe it (automated extraction)

- affirming dismissal on ' statute of limitations grounds where cost bond not obtained until after period of repose had run
- affirming dismissal on statute of limitations grounds where cost bond not obtained until after period of repose had run

## Opinion text

Haden, Chief Justice,
dissenting:
I respectfully dissent to the opinion of the majority on two bases.
On the penultimate day before the statute of limitations expired his clients’ claims, Attorney Mascara traveled from Fairmont, Marion County to Petersburg, Grant County and made proper tender of all that the law requires of one who wishes to commence a civil action against a nonresident motorist. The circuit clerk who received the tender filed the complaint and endorsed the summons with the date August 21, 1972. “However, because the clerk [the public official charged with the ministerial duties incident to the commencement of a civil action] was unable to obtain or prepare a bond form, no bond was executed.” (Majority opinion, supra, at page ). On the final day before the statute of limitations expired his clients’ claims, Attorney Mascara prepared a bond, had it executed in Marion County by the appellants and their surety and mailed it to the clerk in Grant County. On these facts and in view of the West Virginia law, I cannot understand the basis for the decision of the majority.
W. Va. Const., Art. III, §17 requires that the courts shall be open to every person for redress or injury to his person or property. While the courts and the Legislature may regulate reasonably the exercise of the constitutional right by establishing statutes of limitations and by promulgating rules regarding institution of civil actions, this Court should not construct technical reasons *189 for the denial of a basic privilege or right. This is particularly so in view of this Court’s recent and forceful holding in the case of Roe v. M & R Pipeliners, Inc., W. Va., 202 S.E.2d 816 (1973) which is a no-nonsense statement that a public official is presumed to have done and executed those ministerial duties and responsibilities placed upon him by the statutes governing his public office. The only failings in this particular case which worked to the detriment of the appellants and barred them from access to the courts were failings of the circuit clerk. Accordingly, it is the opinion of this writer that the Stevens’ civil action was properly instituted and seasonably commenced. To the contrary, the majority’s holding clearly implies that counsel must henceforth not only do all that the law requires of him to institute the civil action, but also see to it that the clerk does all that the law requires of that office before it can be presumed safely that an action has been commenced within the meaning of the law. The decision of Gaines v. Hawkins, 153 W. Va. 471 , 170 S.E.2d 676 (1969) and like cases, bearing upon bond requirements to perfect an appeal to this Court, does not furnish authority for the proposition adopted by the majority.
Secondly, I disagree with the opinion of the majority implying that an action is not seasonably commenced until it is filed properly with the clerk and then transmitted with summons into the hands of the sheriff or other credible person, who is to serve the pleadings, or into the hands of the auditor, who is to accept service of the pleadings on behalf of a nonresident or other person for whom the auditor has been appointed statutory attorney. It appears to me that this latter part of the Court’s holding is perhaps the most startling and most dangerous for litigants and their counsel. It places an additional duty upon litigants and counsel to follow the incipient lawsuit into the hands of the process server or acceptor before the action will be presumed to have matured into the category of “instituted and commenced” within the meaning of the law. In the near future, I believe the majority will find it necessary to disapprove or overrule *190 this conclusion, or to repromulgate and clarify Rules 3 and 4 of the W. Va. R.C.P.
The majority’s decision does not comport with the spirit of the Rules or its own recent decisions as exemplified by the Roe case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9567732. Public record. Not legal advice.