Benjamin N. Neece, Attorney, Woodruff Family Law Group
“Behind the Bar” is a multi-part blog series that will focus on specific aspects of the practice of law ranging from the Rules of Evidence, Rules of Civil Procedure, and other important legal practice technicalities in an effort to provide readers a better understanding of regularly overlooked and misunderstood concepts that lawyers are faced with on a day-to-day basis.
In our previous installment of “Behind the Bar” we touched on the first part of Rule 4: Service of process, and the requirements involving the “who” and “what” aspects of the rule. In this installment we will complete our review of Rule 4 by discussing the “when,” “where,” and “how;” relating to proper service of a Summons.
Proper service to a “natural person” can be attained by delivering a copy of the Summons and Complaint (S&C) to the individual personally, or leaving copies at the dwelling house or regular abode with “someone of suitable age/discretion residing therein.” It can also be accomplished by delivering a copy of the S&C to an agent authorized by appointment (an Attorney) or law to be served or accept service; mailing a copy by certified mail or registered mail, return receipt requested, addressed to party, and delivering it; or using a designated delivery service authorized under the law to effectuate process and obtaining a delivery receipt. There exist many other potential types of parties to legal proceedings, each requiring slight variations to the rule; but regardless of who the party to receive process is, Rule 4 provides many avenues to meet the requirements set forth therein.
Even in this day and age, with all the advantages of technology and information, the circumstance may arise where personal execution of service upon an individual is effectively impossible because they are unable to be located. In this situation, where a party cannot, with due diligence be served by normal means, they may be served by publication. Service by this means consists of publishing notice of service once a week for three consecutive weeks in a newspaper which is qualified for legal advertising which is circulated in the area where party to be served is reasonably believed to be located, or if that information is unknown, in the county where action is pending. In either case, proof of service must be completed by means of submitting affidavits with the court showing that service was properly executed and where service was via publication, the affidavit must state why publication was necessary and proof of said publication.
Continue reading →