# Stevens v. Saunders

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

URL: https://www.frixlaw.com/law-library/cases/9567734

## 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:** Concurring in part by Flowers
- **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- **Red flag:** Superseded by statute, as recognized in Frantz v. Palmer.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/9567734

## 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

Flowers, Justice,
concurring in part and dissenting in part:
I concur in the result of the majority opinion only because the plain mandate of the nonresident motorist statute suspends “issuance” of a summons until bond is executed. This statute is in derogation of the common law and I am therefore obliged to construe it strictly. It provides that “before a summons is issued thereon, the plaintiff, ... shall execute a bond ....” The plaintiff did not execute the bond so that summons could issue before the statute had run.
I respectfully disagree, however, with that portion of the majority opinion .which defines “issuance” of the summons as the act of the clerk in transmitting the summons from his office. This definition and the cases cited in support of it were appropriate under our prior practice. Our adoption of the current Rules of Civil Procedure, however, necessitate a redefinition of issuance. Rule 4(a) not only makes it mandatory for the clerk to *191 “forthwith issue a summons” when a complaint is filed, but in the conjunctive it commands the clerk also to “deliver it [the summons] for service .... ” The rules have thus merged “filing” and “issuance” as the significant occurrence which will ordinarily toll the statute. “Delivery” is a required but separate event. To compel attorneys to supervise the performance of the clerk in making “the delivery” expands the burden on counsel unrealistically and is certainly in derrogation of our previous holdings to the effect that public officers may be presumed to discharge their duties. It seems we are saying that all the world is entitled to the presumption — except plaintiff’s lawyer.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9567734. Public record. Not legal advice.