Civil Process
Subpoena to produce evidence may be served by: (2ways) a) Personally delivering a copy to the person named in the subpoena, or b) Mailing a copy by certified, signature confirmation or registered mail, return receipt requested, to the person named in the subpoena.
(1) It may not be left with any person other than the person named in the subpoena. (2) Telephone communication is not proper for subpoena to produce documents. (3) If the party wants service by certified or signature confirmation mail, it may be done in that manner without involving the sheriff.
Service of subpoena to testify (3ways) a) The sheriff may serve a subpoena to testify by:
(1) Personally delivering a copy to the person named on the subpoena, or (2) Telephone communication with the person named. (3) A subpoena may also be served by the party by mailing by certified, signature confirmation, or registered mail, return receipt requested. Service by personal delivery. A subpoena to testify must be delivered to the person named in the subpoena. It may not be left with any person other than the person named.
To serve a magistrate summons with a complaint in summary ejectment is a four-step process, unique to this paper. (A magistrate summons with a complaint for money or a complaint for personal property is served just like a civil summons, depending upon if the defendant is a natural person, corporation, etc.) T
(1) The deputy must mail a copy of the complaint and summons to the defendant not later than the end of the next business day or as soon as practicable at the defendant's last known address in a stamped addressed envelope provided by the plaintiff. (2) The officer may, within five days of the issuance of the summons, attempt to telephone the defendant requesting that the defendant come to the office to be served or set an appointment when the deputy may serve him. Note that by using the term "may," this step is not mandatory, but discretionary on thepart of the officer. (3) Whether or not the defendant was contacted by telephone, the deputy must make at least one visit to the place of abode of the defendant within five days of issuance of the summons to attempt personal delivery of the summons and complaint, but at least two days prior to the day the defendant is required to appear to answer the complaint, excluding legal holidays. The visit must be made at a time reasonably calculated to find the defendant at home. At that visit, the deputy shall deliver the papers personally to the defendant or leave copies at the defendant's dwelling with a person of suitable age and discretion who also resides there. (4) If service cannot be made in one of those two ways, the deputy shall affix (post) the copies to some conspicuous part of the premises claimed. (a) This kind of service is called "service by posting. b) "A time reasonably calculated to find the defendant at home" would be at the officer's discretion to determine although no court case has yet interpreted those words
The sheriff may serve a partnership by:
(a) Delivering the complaint and summons to any general partner, or to any attorney-infact or agent authorized by appointment of law to be served (b) Leaving a copy of the complaint and summons in the office of a general partner or attorney-in-fact or agent with the person who is apparently in charge of the office
"Forthwith" is defined by Black's Law Dictionary as requiring immediate action, to act without delay, or to act promptly and with reasonable dispatch
****Warning: Under G.S. 1-484, the sheriff must return the undertaking, affidavit and order of seizure with his actions stated to the issuing court within ten (10) days after seizing the property described
Special proceedings summons
2) In a special proceeding, the plaintiff is called a petitioner, the defendant is called a respondent, and the complaint is called a petition or a motion. (3) The summons tells the defendant that the next step to take is to file a written answer with the clerk within 10 days.
It is not proper to serve a person who lives at the dwelling or place of abode with the defendant at a location other than the dwelling.
A corporation is a business that has taken the necessary steps to be set up as a separate legal entity.The deputy may serve the corporation by: (a) Delivering a copy of the complaint and summons to an officer, director, or managing agent of the corporation (see special notes at # (4) below); (b) Leaving a copy of the complaint and summons in the office of an officer, director, or managing agent with the person who is apparently in charge of the office (see special notes at # (5) below); (c) Delivering a copy of the summons and complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon the agent
The Clerk of Superior Court is responsible to have papers "issued" at the request of plaintiffs to have defendants served.
A defendant or other proper person for service does not have the choice of saying whether they will not ACCEPT service.
The sheriff should not get involved in helping theparent get custody in those cases. The sheriff should be involved only if the order specifically directs the sheriff or a law enforcement officer to take the child and deliver custody to a particular person.
A domestic violence protective order is valid for one year and is renewable for up to two additional years.
There are two types of jurisdiction this lesson plan covers. One is called "in personam" jurisdiction and the other is "in rem" jurisdiction. "In personam" means that there is jurisdiction created over the person. "In rem" jurisdiction means there is jurisdiction over the "thing" or in this case, property
A special proceeding is heard initially by the clerk. SERVING CIVIL PROCESS IS A MAJOR FUNCTION OF THE OFFICE OF SHERIFF. CHILD SUPPORT AND TAXES ONLY 2 THING BE GARNISHING FROM WAGE.
An unincorporated association is a voluntary group of persons formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common object. A society is a group of persons united together by mutual consent, in order to deliberate, determine, and act jointly for some common purpose.
A summary ejectment lawsuit is a suit by a landlord to evict the tenant from the rental property. (SUMMARY EJECTMENT (EVICTION ACTION)
The only type of property which may be seized in claim and delivery is personal property. ---------------------------------------------------- The most common postjudgment remedy is called "execution." =Post-judgment remedies are the remedies which are available only after a decision or final judgment has been reached in a civil action.
An order of seizure in claim and delivery may be obtained at any time before final judgment for the recovery of possession of personal property not real property. ---------------------------------------------------------------- "Upon the receipt of the order from the clerk with the plaintiff's undertaking, the sheriff shall forthwith take the property described in the affidavit,
In some cases the respondent/defendant cannot be located within your county. In such cases "posting" the "Notice of Foreclosure" on the property must make service. Posting the "Notice" requires at least twenty (20) days prior to the hearing date. ****SERVICE MUST BE 10 DAYS PRIOR TO THE HEARING DATE***
Civil papers may be divided into "enforceable" and "nonenforceable" writs. A writ is a generic term used to mean "a court-issued document." Non-enforceable writ means generally that the only thing the officer needs to do is to deliver copies of the papers to the defendant by a legal means. An enforceable writ usually requires the officer to "do" something like seize personal property or put a lien on real property, but requires of the officer more than just hand delivering copies of a process
City, town, or village: The sheriff may serve a city, town, or village by personally delivering a copy of the complaint and summons to the mayor, city manager, or city clerk.
County: The sheriff may serve a county by personally delivering a copy of the complaint and summons to the county manager or to the chairman or any member of the board of commissioners or to the clerk of the board.
To obtain the return of the property, the defendant must give an undertaking equal in amount to double the value of the property and payable to the plaintiff and given to the Sheriff. If no undertaking is given within three days after the seizure of the property and service of the affidavit, order and undertaking on the defendant, the property must be delivered to the plaintiff.
Criminal summons are summons issued by a magistrate, clerk of superior court or judge which must be served in person on a defendant.(valid for 90 days)It notifies a defendant that he will be tried for a felony, misdemeanor, or infraction for which he is being charged.
The only court officer given the authority to issue an execution on an unsatisfied judgment is the clerk of superior court or his deputy or assistant clerk
Executions cannot be issued until at least ten (10) days after the judgment is entered and a notice of the right to have exemptions designated has been served on the defendant
G.S. 1-75.10 requires the sheriff to certify that the process has been served, showing the place, time, and manner of service. This answers the question of who, where, why, what, how, and when
For purposes of this law, domestic violence means the commission of certain acts (e.g., causing, attempting, or placing persons in fear of bodily injury; sexual assault) upon an aggrieved party by a person with whom the aggrieved party has had a personal relationship.
What makes this country different from most other countries in the world is that our people are "free."
In order for the government to have the right to try us in civil or criminal court, to enforce a judgment or seize our property, the government must have jurisdiction over us.
Claim and delivery is the only prejudgment remedy which specifically authorizes the use of force to execute the order of seizure
It is the only civil process which specifically requires the sheriff to break and enter to carry out a seizure of personal property.
All executions must be returned to the issuing court within ninety (90) days of the issuance date. During this ninety (90) days, the deputy must find and levy on the defendant's property, advertise and hold a sale, file his report of sale and make his return to the issuing court.
Legally, there are no excuses recognized for failing to return a writ or process within the time allowed.
Levy are completed on personal property when you seized and taken into custody. (only property which m ay be seized in claim and delievery is personal property.)
Levy are completed on real property when its in the officerspossision. (sureties must be approved by the sheriff not the clerk. Personal property must be physically seized and taken into the possession of the levying officer.
1.A garnishment is a warning to a third person. 2. The "garnishee" is the third person who has property of the defendant in his possession.
Levy on real property is not made by taking possession of property except for purposes of inventory.
The plaintiff can obtain an order of attachment in the following types of actions: (1) An action to secure a judgment for money; (2) An action for alimony; (3) An action for maintenance and support; or (4) An action for support of a minor child.The state and federal governments can use attachment to collect unpaid taxes and assessments.
Pro se - on his own behalf, without an,attorney Ex parte - upon application of the party bringing the action, only one party (as opposed to both being present)
Levy on real property is not made by taking possession of property except for purposes of inventory
The "garnishee" is the third person who has property of the defendant in his possession. The garnishee may be a natural person, a firm, a business, or a corporation. A garnishee is notified of his responsibilities by the service of a summons to garnishee
There are special rules to protect plaintiffs in this situation. If the summons cannot be served within the 60- day period, plaintiff's lawsuit may nevertheless be continued by having the clerk issue an "alias or pluries" (second or subsequent) summons any time within 90 days of the last issue date
The alias or pluries summons must be served within 60 days after it is issued or it becomes void, as with any summons
A summons must be served within 60 days after the date the clerk issued it or by its court date depending on the type of summons.
The deputy must return the summons to the clerk when the 60 days have run even if the summons has not been served. Once a summons is served, it should be returned quickly to the clerk.
test question-There are four basic remedies provided under North Carolina law. They are:( attachment, garnishment, claim and delivery, and restraining orders or injunctions.)
The first prejudgment remedy we will discuss is Attachment is a court order authorizing the seizure of real or personal property sufficient in amount to satisfy a judgment obtained for a stated amount
What does it mean to "serve" a copy of the complaint and summons on a defendant?
The legal effect of proper service is to give the court jurisdiction over the defendant.
The seizure of property under a court order is called "levy." test question..
The levy on property and return of the order of attachment should be completed within ten (10) days after the date the order is issued. A levy made after the expiration of ten (10) days will not be valid
Executions for Delivery of Specific Property are called "Writs of Possession for Real Property" and "Writs of Possession for Personal Property. ----types of executions ( executions against property,,execution against the person,,executions for delivery of specific property.
The most frequently issued type of execution is issued against property which requires levy on and sale of personal or real property to satisfy a judgment. ----------------------------------------------------------- Real or Personal Property Used as a residence $35,000.00 ***2 types of statutuory exemptions CONSTITUTIONAL AND STATUTORY.
The purpose of claim and delivery is to claim the immediate delivery of a certain specified personal property. The defendant named has either wrongfully taken or is wrongfully withholding the property in question from the rightful owner or possessor. To btain this remedy, the plaintiff must bring an action to recover the possession of personal property. The possession given by this remedy is temporary and may be changed by a final judgment
The notice of hearing sets a time and place for a hearing before the clerk which must be at least ten (10) days from the date the notice was served.
Execution sales may be scheduled or held on any day of the week except Sunday. ------------------------------------------ All real property sales must be held at the courthouse door of the county where the land is located. Personal property sales must be held at the location of the property. ****ALL SALES UNDER EXECUTION MUST BE MADE FOR CASH OR ITS EQUIVALENT.
The notice of sale must be prepared by the sheriff or his agent and must contain the following: (1) A reference to the execution authorizing the sale; (2) The date, time, and place the sale will be held; (3) A description of any real property to be sold sufficient to identify it; (4) A description of personal property to be sold sufficient to indicate nature and quantity; (5) A statement that the property will be sold to the highest bidder for cash.
"Natural person" means an individual human being (as opposed to a business, unit of government, or some other kind of legal entity
The sheriff may serve the "natural person" defendant by: (a) Delivering a copy of the summons b) Leaving a copy of the complaint and summons at the defendant's dwelling or usual place of abode with a person of suitable age and discretion residing in that dwelling (c) By delivering a copy of the complaint and summons to an agent authorized by appointment or by law to be served or accept service of process or by serving the agent in any manner .2
What is a complaint? The complaint can be thought of as the lawsuit itself-that is, the document prepared by the plaintiff that indicates who he is suing, why, and for what legal "remedy.
The summons indicates to the defendant what steps must be taken next in response to the complaint.VALID SERVICE OF THE SUMMONS GIVES THE COURT JURISDICTION OVER THE DEFENDANT.
Summons in proceeding to terminate parental rights
The summons tells the parent (who is termed the "respondent") that an answer to the petition must be filed within 30 days with the clerk or parental rights may be terminated. Also, it indicates that the parent will be notified by the clerk of the date, time, and
Executions Against the Person is a "civil order for arrest" and is very specific in nature and rare.
They carry the weight of a misdemeanor warrant and are valid for 90 days since they are executions
Magistrates summons
This summons is issued when a plaintiff files a complaint to be heard in small claims court by a magistrate. *note-small claims court (30 days to serve)*
There are generally two parties to a civil lawsuit-plaintiff and defendant. The plaintiff is the party bringing the lawsuit and the defendant is the person or entity the plaintiff is suing. A civil action begins when the plaintiff files a complaint with the clerk of superior court.
Under the law, the summons must be issued within five days after the complaint is filed; however, as a practical matter, it is almost always issued immediately after the complaint is filed. In fact, in most counties the plaintiff must fill out the summons and give it to the clerk when filing the complaint.
The order must be singed by a north carolina district court judge.
Within seven days of his receipt of the execution called a writ of possession for real property, the sheriff must carry out the writ. The writ itself is valid for 90 days
There are three types of complaints this court has jurisdiction to handle. They are: civil cases for $5,000 or less in which the plaintiff seeks money, possession of personal property, or summary ejectment.
Without proper service on the defendant, the court does not have jurisdiction over the defendant and the case cannot proceed
an attorney/a lawyer
a lawyer is a person who has graduated from law school and passed the state bar. An attorney is a lawyer who represents another, as in "attorn" meaning "to turn over to." An attorney may not necessarily be able to accept service of process for his client.
The deputy may serve the corporation by: note- there are 8 categories upon deputy to serve a summons and complaint
a) Delivering a copy of the complaint and summons to an officer, director, or managing agent of the corporation (b) Leaving a copy of the complaint and summons in the office of an officer, director, or managing agent with the person who is apparently in charge of the office (c) Delivering a copy of the summons and complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon the agent in a manner specified by any statute
a guardian ad litem
is a guardian who is lawfully appointed for a specific suit or case; "ad litem" means
Civil summons
is a legal document informing someone that a lawsuit has been filed against him or her, and that a response is required by a set date and time. (60 days to serve, 30 days answer)
a guardian:
is a person who is lawfully invested with the power and charged with the duty to take care of another person. A guardian can be a natural person or a business such as an attorney or a bank.
an attorney of record:
is an attorney who has made at least one appearance in a court of record (open court of district or superior court) who is specifically representing a specific client in a specific case.
However, there are certain types of cases which do not allow any exemptions. Some examples are
— Claims of United States or its agencies as provided by Federal law — State or local government claims for taxes, appearance bonds or fiduciary bonds — Laborer's liens on specific property affected — Mechanic's liens on premises affected
