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SERVICE OF PROCESS
Delivery of the statement of claim or other pleadings to those parties named in a court or other adversarial proceeding.
To execute a writ or process; as, to serve a writ of capias signifies to arrest a defendant under the process to serve a summons, is to deliver a copy of it at the house of the party, or to deliver it to him personally, or to read it to him; notices and other papers are served by delivering the same at the house of the party, or to him in person.
When the service of a writ is prevented by the act of the party on whom it is to be served, it will, in general, be sufficient if the officer does everything in his power to serve it.
A party to a lawsuit has the right to receive written notice that he is being sued or that a hearing will be held which might affect him in some way. Many rules have been developed to govern what notice needs to be given, and how and when it must be delivered. These are usually contained in court rules and rules of civil procedure.
Service of court papers (also referred to as service of process or service) is the delivery of court papers to a party, witness or other person who has a stake in the case. Every state has detailed laws spelling out just how the papers may be delivered, and by whom. When a person has been provided with formal notice of the filing of a lawsuit (that is, that he has been sued), of a court hearing or trial, or ordering him to attend a hearing, trial or deposition, he is said to have been served.
In most cases, the first papers that must be served are the summons and complaint. These documents give the defendant notice that the lawsuit has been filed and what the plaintiff is seeking (for example, a divorce). The court cannot proceed unless the plaintiff properly serves the defendant with these papers. There are five major types of service:
- Personal service--When the person served is physically handed court papers notifying her that she has been sued, she is said to have been personally served. With almost all lawsuits, the complaint and summons must be personally served unless the defendant agrees to accept service. If the defendant does not agree to accept service and is not personally served, the court cannot take any action in the case, unless the plaintiff can show that personal service was impossible.
- Service by mail--Once a party has been properly served with the complaint and summons, most future court papers in the lawsuit may be served on the parties by first-class mail. Most states require that someone other than a party to the action do the actual mailing and file proof of the service with the court.
- Service by publication--When the whereabouts of a defendant are unknown, or personal service within the state is impossible, a court may allow the defendant to be served with notice of the lawsuit by publishing the notice in a newspaper of general circulation. As a general matter, this type of service is only allowed in cases involving property and status (personal relationships affected by the law). Thus divorces and certain adoptions (status) and partition suits (property) may be allowed to proceed after service by publication. But issues such as child custody and support cannot be decided until and unless personal service occurs.
- Nail and mail--Nail and mail service is the posting of the notice on the person's home and then mailing him a copy (hence nailing and mailing).
- Substituted or alternate service--In some states, such as New York, substituted or alternate service is any method of service a court allows when personal service is impossible or impracticable. In other states, such as California, substituted service is leaving the court papers with a responsible person at the defendant's home or business and then mailing the defendant a copy.
In most divorce cases, if a divorce is all that is being sought, service often can be made by mail or publication. If, however, alimony, child support, custody, visitation or a division of property is being sought in addition to the divorce itself, most states require personal service on the defendant. In either case, if the defendant's whereabouts are unknown, service by publication is often the only available method.
Once the defendant has been served with the summons and complaint, service of most subsequent court papers may be done by mailing them, without the need for an acknowledgment of service form. Some papers, however, such as contempt of court hearing notices and temporary restraining orders must still be formally served. The party being served, however, may voluntarily accept these papers.
After the defendant has been served, she usually files an answer or other response. She must serve this on the plaintiff, and usually can serve it by mail because the plaintiff, by initiating the lawsuit, has already appeared in the case and consented to the court's power to hear the case.
Service of court papers on a witness (for example, service of a notice telling the witness that his deposition has been scheduled), must usually be done personally; service by mail or publication is almost never sufficient.
The least expensive and most convenient way to satisfy the service requirement is for someone on behalf of the plaintiff to mail the summons and complaint to the defendant and ask her to sign, date and return a form acknowledging that she received them. This voluntary acceptance of court papers is called accepting service or acknowledgment of service, and saves the plaintiff from having to pay someone to locate and hand deliver the papers, which is otherwise required if the defendant doesn't cooperate. In some states, (the federal courts have a similar but more complicated procedure) the failure to accept service voluntarily makes the defendant responsible for the cost of service even if he otherwise wins the case.
It is important to note that proper service of the summons and complaint can be a very complicated matter and is often governed by the particular laws and rules of the courts and jurisdictions involved.