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1994 Op. W. Va. Att'y Gen. 1 (1994)

handle is hein.sag/sagwv0048 and id is 1 raw text is: STATE OF WEST VIRGINIA OFFICE OF THE ATTORNEY GENERAL CHARLESTON 25305 DARRELL V. McGRAW, JR. (304) 558-2021 ATTORNEY GENERAL FAX (304) 558-0140 January 11, 1994 Ruth Ann Panepinto, Ph.D. Secretary Department of Health and Human Resources Building 3, Room 206 Capitol Complex Charleston, West Virginia 25305-0500 Dear Dr. Panepinto: We are responding to your request for an opinion as to whether the Child Advocate Office must execute a $100.00 bond before the clerk of the court at the time it files a complaint against a nonresident, pursuant to West Virginia Code § 56-3-33. Our opinion is that the Child Advocate Office is not required to post such a nonresident bond. We observe that the question presented comes to us in the abstract. Inasmuch as we render opinions in the abstract without memoranda or argument representing diverse points of view, we are constrained to approach matters conservatively. Courts may construe facts and argument differently and apply them to the law in a fashion not contemplated by an abstract opinion. Unless and until that occurs, however, our formal opinion has the force and effect of law. Our reasoning with respect to this matter follows. West Virginia Code section 56-3-33(c) provides as follows: At the time of filing a complaint and before a summons is issued thereon, the plaintiff, or someone for him, shall execute a bond in the sum of one hundred dollars before the clerk of the court, with surety to be approved by said clerk, conditioned that on failure of the plaintiff to prevail in the action or proceedinQ that he will reimburse the defendant, or cause him to be reimbursed, the necessary taxable costs incurred by him in and about the defense of the action or proceeding in this State, and upon the issuance of a summons, the clerk shall certify thereon that such bond has been given and approved. (Emphasis added.) The purpose of the statutory nonresident bond requirement is to provide security against the defense of frivolous or vexatious lawsuits. It secures the reimbursement of costs. As applied to agencies of the State of West Virginia, the

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