A Note on Declaratory Judgment Pleading and Practice

Three years ago as President of this Association, I delivered an address advocating the adoption of declaratory judgment procedure in the courts of this state by procedural rule to be promulgated by the Supreme Court of Appeals. Thereafter the Judicial Council recommended such a rule to the court which, without denying its jurisdiction, declined to make the procedure effective on the ground that, if advisable, it should be effected through legislative action rather than by rule of court. Later, your Executive Council apparently impressed with the desirability of the new procedure, secured the enactment of the Uniform Declaratory Judgment Act at the last session of the Legislature. At the conclusion of my address one of the gentlemen who discussed my paper, made a remark to the effect that there was some confusion in his mind as to the necessary procedure to be followed in obtaining a declaratory judgment. The thought on the part of President Wyckoff, that such confusion, or at least unfamiliarity as to pleading and practice, might exist among the members of the bar, probably accounts for the invitation which he extended for me to read a paper on the procedural aspects of the subject. With equal thoughtfulness, he told me that I had been allotted thirty minutes on the program. Accordingly I will attempt to discuss briefly some of the more important matters which might be considered by a lawyer who seeks to obtain a declaratory judgment under the West Virginia common law system of pleading