Handbook On the Rules Of Civil Procedure For West Virginia Magistrate Courts - Hardcover Version
Handbook On The Rules Of Civil Procedure For West Virginia Magistrate Courts - PDF Version
Rule 3. Service Of Process - Preview Page
The summons and complaint in civil actions shall be served upon the defendant in the same manner as is provided by Rule 4 of the Rules of Civil Procedure for Trial Courts of Record.
§ 3 Service of Process Required under Rule 4 of the Rules of Civil Procedure for Trial Courts of Record
 General commentary
Rule 3 of the magistrate court Rules requires that a summons and complaint be served upon a defendant in the same manner as is provided by Rule 4 of the Rules of Civil Procedure for Trial Courts of Record.1 Rule 4 has three basic objectives. First, to set out the factors which must be included in a summons. Second, to
describe the manner in which a summons must be issued. Third, Rule 4 establishes the methods by which a summons and complaint may be served on a defendant (service of process under Rule 4 refers to service of summons and complaint). The broad categorical areas specifically covered in the subparts of Rule 4 include: form of summons, issuance of summons, who may serve process, personal or substituted service of process, constructive process, personal service outside state, process served in addition to constructive service, process part of record, proof of service or publication, amendment to process, and time limit for service. The provisions of Rule 4 are discussed in the sections that follow.
Rule 4 is a vehicle for providing courts with jurisdiction over defendants and also functions as a notice-giving device for defendants. Service of process in a manner prescribed by law is an essential prerequisite to a court’s jurisdiction over a defendant.2 Under the general rule when a particular method of serving process is
prescribed by statute that method must be followed, especially so with reference to service of process on a corporation defendant. A strict compliance with the statute is necessary to confer jurisdiction of the court over a corporation.3
Service of process under the provisions of Rule 4 take the form of personal delivery, service at dwelling or usual abode, service on appointed or statutory agent or attorney-in-fact, service by mail or service by publication. Rule 4 does not expressly set out the order in which service of process should be made from the options available. It is suggested here that in exercising the service of process options, the following order of service should be followed: personal service, service at dwelling or usual abode, service on appointed or statutory agent or attorney-infact, service by mail, and service by publication.
About the Authors:
Justice Robin Jean Davis was engaged in the private practice of law in the state of West Virginia from 1982 until 1996. In 1996, she was elected as a Justice to the West Virginia Supreme Court of Appeals to fill an unexpired term. She was re-elected in November 2000. Justice Davis served as Chief Justice in 1998, 2002, 2006, 2007, and 2010. Justice Davis is the author of several West Virginia Law Review articles, including: "A Tribute to Franklin D. Cleckley: A Compendium of Essential Legal Principles from His Opinions as a Justice on the West Virginia Supreme Court of Appeals"; "A Tribute to Thomas E. McHugh: An Encyclopedia of Legal Principles from Opinions Written by Justice McHugh"; "An Analysis of the Development of Admitting Expert Testimony in Federal Courts and the Impact of That Development on West Virginia Jurisprudence"; and is the co-author with Louis J. Palmer, Jr. of "Workers' Compensation Litigation in West Virginia: Assessing the Impact of the Rule of Liberality and the Need for Fiscal Reform." In addition, Justice Davis is the co-author with Franklin D. Cleckley and Louis J. Palmer, Jr. of Litigation Handbook on West Virginia Rules of Civil Procedure (3d ed. 2008).
Louis J. Palmer, Jr. has been a staff attorney on the West Virginia Supreme Court of Appeals since 1996. He has authored several books that include: Encyclopedia of Abortion in the United States (2d ed. 2008); Encyclopedia of Capital Punishment in the United States (2d ed. 2008); Racism in America: A Guide to Understanding Discrimination (2006); and Encyclopedia of DNA and the United States Criminal Justice System (2004). In addition, Mr. Palmer is the co-author with Franklin D. Cleckley and Robin Jean Davis of Litigation Handbook on West Virginia Rules of Civil Procedure (3d ed. 2008).