Rule 77.Court and proceedings; clerk's authority; notice of an order or judgment; indigents

Current through January 1, 2025 · Last verified July 8, 2026

In one sentenceRule 77 declares every court always open for filing and routine orders, limits where hearings and trials may be conducted, sets the clerk's office hours and independent authority, requires the clerk to promptly notify parties when an order or judgment is entered, and creates a detailed process for indigent litigants to have fees, costs, and security waived.

Full Text of Rule 77

Text sizeJump to: (a) (b) (c) (d) (e)

(a) When court is open. Every court is considered always open for filing any document, issuing and returning process, making a motion or entering an order.

(b) Place for trial and other proceedings. Every trial on the merits shall be conducted in open court and so far as convenient in a regular courtroom. Any other act or proceeding may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the circuit. But no hearing, other than one ex parte, shall be conducted outside the circuit unless all the affected parties consent.

(1) Hours. The clerk’s office with a clerk or deputy on duty shall be open during business hours every day except Saturdays, Sundays and legal holidays. But a court may, by an approved local rule or order, require that the office be open for specified hours on Saturday or a particular legal holiday other than one listed in Rule 6.

(2) Orders. Subject to the court’s power to suspend, alter, or rescind the clerk's action for good cause, the clerk may:

(A) issue process;

(B) enter a default;

(D) act on any other matter that does not require the court's action.

(d) Serving notice of an order or judgment.

(1) Service. Immediately after entering an order or judgment, whether or not the order or judgment so directs, the clerk shall serve notice of the entry, as provided in Rule 5(b), on each party who is not in default for failing to appear. The clerk shall record the service on the docket. A party also may serve notice of the entry as provided in Rule 5.

(2) Time to appeal not affected by lack of notice. Lack of notice of the entry does not affect the time for appeal or relieve a party for failing to appeal within the time allowed, except as allowed by Rule 5 of the Rules of Appellate Procedure.

(e) Waiver of fees, costs and security for indigents.

(1) Filing of financial affidavit and application. A person seeking waiver of fees, costs or security, pursuant to West Virginia Code § 59-2-1, shall execute before the clerk or a deputy an affidavit and application prescribed by the Supreme Court of Appeals, which shall be kept confidential in divorce and domestic violence proceedings.

(2) Clerk’s approval of application. In making the initial determination of eligibility for waiver of fees, costs or security pursuant to the Financial Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases as promulgated by the Supreme Court of Appeals.

(A) The clerk of the court is required to treat the financial disclosures in the application, which were made by the applicant under oath and penalty of false swearing, as true. If the clerk determines that the disclosures in the application meet the financial guidelines for waiver of fees, costs, or security, then the clerk shall immediately file the civil action.

(B) Clerk’s denial of application. If the clerk determines that the disclosures in the application do not meet the financial guidelines for waiver of fees, costs or security, or if the clerk determines that the application provides insufficient information for the clerk to make such determination, then the clerk shall deny the application.

(3) Review of eligibility for waiver by the court.

(A) When a clerk denies an application of waiver, the clerk must inform the applicant of the right to request that the clerk forward a copy of the affidavit and application to a judge for review of the clerk's denial.

(B) If an applicant requests review of the clerk's denial of the application, the clerk shall immediately forward a copy of the affidavit and application to the court.

(C) Upon receipt of the affidavit and application, the court shall, within 7 days, either approve the application, disapprove the application, instruct the person to provide additional information or schedule an ex parte hearing to determine indigency.

(D) The sole issue to be determined by the judge reviewing the application is whether the applicant meets the financial guidelines.

(4) Filing a new application for changed circumstances. An additional affidavit and application of waiver shall be filed whenever the financial condition of the applicant no longer conforms to the financial guidelines for determining indigency or whenever an order has been entered directing the filing of a new affidavit.

(5) The filing of an affidavit and application of waiver 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.

End

Amendment History

The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.

Plain-English Summary

Rule 77 covers the day-to-day mechanics of how a circuit court and its clerk's office operate. Every court is treated as always open for filing documents, issuing process, and entering routine orders — there's no such thing as the courthouse being closed to a filing. Trials on the merits happen in open court, generally in a courtroom, though a judge can handle other matters in chambers, even outside the circuit, as long as any non-ex-parte hearing held outside the circuit has every affected party's consent.

The clerk's office has to stay open during business hours every weekday except legal holidays (a local rule can add Saturday or a legal holiday not listed in Rule 6), and the clerk can act independently on routine matters — issuing process, entering a default or a sum-certain default judgment, and other matters that don't need the court's own decision — subject to the court's power to undo that action for good cause. Whenever an order or judgment is entered, the clerk has to promptly serve notice of it on every party who hasn't defaulted by failing to appear, and record that service on the docket — though missing that notice doesn't extend a party's deadline to appeal.

Rule 77(e) adds a substantial piece with no federal counterpart: a full process for waiving fees, costs, and security for people who can't afford them. A person applies with a sworn financial affidavit under West Virginia Code § 59-2-1 — kept confidential in divorce and domestic violence cases — and the clerk treats the disclosures as true, filing the case immediately if they meet the Supreme Court of Appeals' financial guidelines. If the clerk denies the application, or can't tell whether it qualifies, the applicant can ask the clerk to forward it to a judge, who has 7 days to approve it, deny it, ask for more information, or hold an ex parte hearing on indigency — deciding nothing but whether the guidelines are met. A new application is required whenever the applicant's finances change enough to fall outside the guidelines, and filing the affidavit and application tolls any applicable statute of limitations or other deadline while it's pending.

Frequently Asked Questions

Is a court ever considered "closed" for filing a document?

No. Rule 77(a) treats every court as always open for filing, issuing and returning process, making a motion, or entering an order.

Can a judge conduct proceedings outside a courtroom?

Yes, for matters other than a trial on the merits — a judge can act in chambers, even outside the circuit, as long as any non-ex-parte hearing held outside the circuit has every affected party's consent.

How do I get court fees waived if I can't afford them?

File a sworn financial affidavit and application under West Virginia Code § 59-2-1 with the clerk. If your finances meet the Supreme Court of Appeals' guidelines, the clerk files your case immediately; if the clerk denies the application, you can ask for it to be forwarded to a judge for review.

Does missing notice of a judgment give me more time to appeal?

No. Rule 77(d)(2) says lack of notice doesn't affect the time for appeal or excuse a missed appeal deadline, except as the Rules of Appellate Procedure separately allow.

Source & verification. The rule text is reproduced verbatim from the official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 77). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. · Official source

Also known as: fee waiver West Virginiain forma pauperisclerk's authoritynotice of judgment entryindigent filing fee