There are two forms of legal proceedings in our civil court system: actions (also recognized as ”trials) and applications (also recognized as ”motion proceedings). These guidelines do not apply to extraordinary remedies such as certiorari which are governed by Rule 71B(a) of the West Virginia Guidelines of Civil Procedure. The Amendments give for a prescriptive approach to judicial overview proceedings which really should be meticulously followed. The application need to be supported by affidavit, and set out the factors why the applicant seeks rescission of the default judgment.
Although the Code of Civil Process elaborates in which way legal proceedings have to be commenced and which formalities and guidelines of conduct ought to be followed in the course of proceedings, it does not indicate if the case need to be brought just before a court by a writ of summons or by an application. The application for the extension of time can take spot at any time in the proceedings if one party demands to extend time in order to meet some essential deadline. Exactly where a defence is on the merits, the defendant files a plea exactly where the defence is on a technicality, the defendant either files an exception or an application to strike out.
If an application is launched when a genuine dispute of fact exists on the affidavits, the court may possibly refer the matter to trial, order oral evidence to be heard on a defined problem in dispute or, particularly if the applicant must have … Read the rest >>>