§ RULE 77. Courts and Clerks
RULE 77. Courts and Clerks
(a) Courts Always Open. The courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning mesne and final process, and of making and directing all motions, orders, and rules.
(b) Trials and Hearings; Orders in Chambers. Unless otherwise provided by a statute, by these rules, or by other rules adopted by the Supreme Court of Appeals, all trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the circuit; but no hearing, other than one ex parte, shall be conducted outside the circuit if timely objection to doing so is made by any of the parties affected thereby.
(c) Clerk's Office and Orders by Clerk. The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except Sundays and legal holidays, as defined in Rule 6(a). All motions and applications in the clerk's office for issuing mesne process, for issuing final process to enforce and execute judgments, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but the clerk's action may be suspended or altered or rescinded by the court upon cause shown.
(d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk, except as to parties who appear of record to have had notice thereof, shall serve by mail a notice of the entry in the manner provided for in Rule 5 upon every party affected thereby who is not in default for failure to appear, and shall make a note of the mailing in the docket. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed.
(e) Waiver of Fees and Costs for Indigents.
(1) Filing of Affidavit of Indigency. A person seeking waiver of fees, costs, or security, pursuant to Chapter 59, Article 2, Section 1 of the Code of West Virginia, shall execute before the clerk or a deputy an affidavit prescribed by the chief justice of the Supreme Court of Appeals, which shall be kept confidential in divorce and domestic violence proceedings. An additional affidavit of indigency shall be filed whenever the financial condition of the person no longer conforms to the financial guidelines established by the chief justice of the Supreme Court of Appeals for determining indigency or whenever an order has been entered directing the filing of a new affidavit.
(2) Review of Affidavit of Indigency. If it appears from the affidavit that the person meets the financial guidelines, the clerk shall perform the service requested in conjunction with the affidavit. If it subsequently appears to the court that the person did not meet the financial guidelines, the person shall be ordered to pay the required fees, costs, or security, or the court may enter an appropriate remedial order. If it appears from the affidavit that the person does not meet the financial guidelines, the clerk shall inform the person that the service will not be performed without the payment of the appropriate fees, costs or security, and that the person may request review of the clerk's determination by the court. If the person requests review of the clerk's determination, the clerk shall immediately forward a copy of the affidavit to the court. Upon receipt of the affidavit, the court shall, within 7 days, either approve the affidavit, disapprove the affidavit, instruct the person to provide additional information, or schedule an ex parte hearing to determine indigency.
(3) Effect of Filing. The filing of an affidavit of indigency shall be deemed to toll any applicable statute of limitations or other time requirement. This rule does not govern the appointment of counsel or the payment of attorney fees.