Microsoft Word - civil.DOC - Professional Protection Inc...

Civil Process

BLET: 33G

TITLE: CIVIL PROCESS

Lesson Purpose: To prepare students to carry out the basic civil process duties expected of recently-graduated deputy sheriffs.

Training Objectives: At the end of this block of instruction the student will be able to achieve the following objectives in accordance with the information presented during the instructional period:

1. Explain how to achieve valid and binding service of a civil summons on the following legal entities:

a) Natural person

b) A corporation, partnership, sole proprietorship, an “LLC” or “PLLC,” an unincorporated association

c) City or county government

2. Explain how to serve a magistrate summons with a complaint in summary ejectment (eviction action).

3. Accurately complete a valid return of service on a civil summons with its complaint and a magistrate summons with a complaint in summary ejectment.

4. Explain proper service of subpoenas in the following situations:

a) For a witness to testify in person

b) To produce documents

5. Explain when an officer has the authority to serve an “Order to Pick Up Children” and a domestic violence protective order.

6. Explain the purpose of the following prejudgment remedies:

a) Attachment

Basic Law Enforcement TrainingInstructor

1

Civil Process

b) Garnishment

c) Claim and Delivery

7. Explain the purpose of an execution (for money) and outline the basic process.

8. Explain how to serve the following executions:

a) Writ of Possession for Real Property

b) Writ of Possession for Personal

Property

Hours: Twenty-four (24)

Instructional Method: Lecture/Conference/Demonstration

Training Aids: Handouts Video: Civil Process, NCJA (2001)

References: North Carolina Criminal Law and Procedure.Charlottesville, VA: The LexisNexis Group, 2004.

Case opinions from the North Carolina Supreme Courtand North Carolina Court of Appeals (cited in outline).

Prepared By M. Kevin Smith, Esq. Agency Legal Specialist IIN.C. Justice Academy

Joan Brannon, Esq.Institute of GovernmentUniversity of North Carolina at Chapel Hill

Tim Mabe Guilford County Sheriff’s Office

Mark PegramRockingham County Sheriff’s Office

Ricky Storey Dare County Sheriff’s Office


2

Civil Process

Date Prepared: January 1998

Reviewed By: M. Kevin Smith Agency Legal Specialist North Carolina Justice Academy

Date Reviewed: January 1999 Revised By: John Aldridge

Assistant Attorney General Law Enforcement Liaison Section NC Department of Justice

Date Revised: March 1999 July 1999

Revised By: Kathy Moore Agency Legal SpecialistNorth Carolina Justice Academy

Date Revised: January 2000

Reviewed By: Kathy Moore

Date Reviewed: November 2000

Revised By: Mark Pegram Sheriffs’ Standards Division

Jon Blum Instructor/Coordinator North Carolina Justice Academy

Date Revised: November 2001

Revised By: Mark Pegram Sheriffs’ Standards Division

Date Revised: May 2002

Revised By: Mark Pegram

Major Lucy ZastrowDurham County Sheriff’s Office

Date Revised: October 2002

Revised By: Major Lucy Zastrow Peggy Schaefer Training Manager North Carolina Justice Academy

Date Revised: April 2003


3

Civil Process

Revised By: Eric Pope Instructor/CoordinatorNorth Carolina Justice Academy

Date Revised: August 2003

Revised By: Robert B. Yow BLET Curriculum Coordinator North Carolina Justice Academy

Date Revised: July 2005January 2006


4

Civil Process

TITLE: CIVIL PROCESS - INSTRUCTOR NOTES

1. Delivering instructors should have extensive experience in serving civil papers.

2. Several Administrative Office of the Court (AOC) forms are used in this lesson. Instructors must and can obtain these forms by going towww.aoc.state.nc.us/www/public/html/forms.html. Students must be given copies of each form as indicated.

3. Included as an optional part of BLET Civil Process are 20 scenarios. Instructors may use these exercises several different ways: role playing, work group class projects, homework or class discussions. The student copies of the scenarios have the “issue” and “answer” areas left blank and instructors may use these copies where applicable.

Instructors are strongly encouraged to tell students to come up with as many solutions as possible for each scenario. Part of the discussion will help them develop valuable problem-solving skills.

These scenarios may also be used in other lesson plans such as “Elements of Criminal Law,” “Juvenile Laws and Procedures,” “Ethics for Professional Law Enforcement,” “Dealing with Victims and the Public” or “Patrol Techniques.”

4. To promote and facilitate law enforcement professionalism, three (3) ethical dilemmas are listed below for classroom discussion. At their discretion, instructors must provide students with each ethical dilemma listed below. Sometime during the lecture instructors should “set the stage” for the dilemma prior to taking a break. Instructors are encouraged to develop additional dilemmas as needed.

a) You have subpoenas for another law enforcement agency in your jurisdiction. You go to the desk officer and he tells you his agency’s policy is for you to leave the copies with him and he will serve them for you to his officers. Then you are to mark the subpoenas as personal service. What should be done?

b) You serve a magistrate summons with a complaint in summary ejectment, which has a court date on it. The time period for serving the summons before the court date is running out. The Clerk of Superior Court calls you by phone to see if the paper is served yet, because the plaintiff is asking him. You tell him it has not been served. He tells you to change the court date on it by adding three additional days to the date, and to leave the time of court as it is.

What should you do?


5

Civil Process

c) In a hurry to deliver some civil papers, a good friend of yours who is a deputy gives you three civil processes to be served. You are a police officer for the town in which the defendants live. The deputy tells you to just sign his name to the papers and he will pick them up later. What will you do?


6

Civil Process

TITLE: CIVIL PROCESS

I. Introduction

NOTE: Show slide, "Civil Process."

A. Opening Statement

Serving civil process is a major function of the office of sheriff. Traditionally, the sheriff and his or her deputies perform civil process duties. Other law enforcement officers do not.

By statute, municipal officers are authorities to "serve all civil process" directed to them. [G.S. 160A-285.] Because this authority is seldom used, this outline will, for simplicity, refer to "deputy sheriffs."

Civil process is a term that covers the service of pleadings, motions, orders, and other papers on a party in a civil case and the service of writs to enforce judgments entered by a court.

This block of instruction is not designed to fully address all facets of civil process. Instead, emphasis is placed on preparing students to serve basic civil process (summonses and subpoenas). As a justice officer, it is extremely important to have certain basic knowledge of civil process. Citizens who want to know the process of having a tenant evicted and how long the process will take will confront you at times. You may respond to a dispute and the complainant may want you to act on his complaint. It may be “civil” in nature and your basic knowledge of civil process will aid you in determining the necessary steps to take to resolve the situation. Having such knowledge will make you a well diverse justice officer.

B. Training Objectives

NOTE: Show slide, "Training Objectives."

A. Reasons

Serving civil process in the proper manner is an extremely important function of the office of sheriff. Without proper service of summons and effective enforcement of court orders, the civil court system would cease to function. On a more immediate level, where a deputy fails to properly execute civil process duties, the sheriff may be held liable.


7

Civil Process

This affects the public’s view of the effectiveness of the Office of Sheriff.

II. Body

A. Serving Summonses

NOTE: Show slide, "Serving Summonses."

1. Beginning a lawsuit

a) 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.

b) Upon the filing of the complaint, the clerk issues a summons to the defendant. 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.

(1) What is a complaint? The complaint can bethought 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 complaint does not need to be excessively detailed, but merely needs to give the defendant a brief statement of the allegations against him, and the legal relief or recovery(remedy) the plaintiff is seeking. For example, a complaint filed by John Doe against Jane Roe may state that Ms. Roe owes Mr. Doe $250 for a stereo she purchased from him. Complaints come in different formats. Small claims complaints are fill-in-the-blank papers a defendant can get when he goes to issue the papers. Complaints that go with civil summons are generally typed on blank sheets of paper by attorneys from their offices and have many different formats, depending on what the attorney uses. All complaints must have certain pieces of information in them to make them validly issued and “usable” to give court jurisdiction to hear the cases.


8

Civil Process

(2) The summons indicates to the defendant what steps he or she must take next in response to the complaint. Valid service of the summons gives the court jurisdiction over the defendant.

(3) What makes this country different from most other countries in the world is that our people are “free.” By being a citizen of this country, we enjoy the privileges and the rights of not being born under any type of government jurisdiction. 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. This is accomplished by “serving” us with “notice” of what is going to happen. Simply, the government has to tell us what they are doing; it is our Fifth Amendment right of “due process.”

Example: When an officer arrests a citizen, the officer must TELL the citizen, “You are under arrest for . . ..” Those words give the citizen notice of what the branch of government the officer represents is going to do to him; which is charge him with an offense. Those words give the branch of government the authority to detain the citizen, force him to go to a detention facility to be processed, tells the citizen when to go to court and what he needs to do to get out of the facility. The whole idea is to inform the citizen of what is going on. The delivery of the information is essential for due process in this country.

Example: When an officer delivers a copy of a summons and a complaint to a person, by delivering the information, the judicial district issuing the summons has the authority to proceed with that particular case with those parties to that case. The delivery of information is the court’s way of saying to the defendant, “You have been told about the case.” That is one of the foremost issues our founding fathers had for coming to this county. They didn’t like the government of their homeland county doing things to them without them being told first so they would have the opportunity to defend themselves. That is what “due process” is all about.

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


9

Civil Process

there is jurisdiction created over the person. “In rem” jurisdiction means there is jurisdiction over the “thing” or in this case, property.

Depending on the type of paper the officer is handling, the court may need either type of jurisdiction or both. That is why different types of papers must be served in specific ways—to create either “in personam” jurisdiction or “inrem” jurisdiction for the courts to proceed with cases.

2. Types of summonses

The several types of summonses used to begin civil proceedings are listed below in the order of their frequency of use. With increased availability of computer software that allows users to create their own documents, there has been an increase in attorneys generating both civil and criminal documents within their law offices rather than using the Administrative Office of the Court (AOC) forms provided by the state. Upon receipt for service of such self-generated forms, law enforcement officers should be certain that the forms are proper and valid on their face before service is attempted. If you are required to handle and attempt service on self-generated forms on a routine basis, please keep the most current AOC forms on file as reference. Service is invalid if the form is itself not valid on its face and civil liability for you and your office is a possibility.

NOTE: Show slide, "Types of Summonses." Instructors must provide students with copies of AOC forms which can be obtained at ww.aoc.state.nc.us/www/public/html/forms.html

Student Note: Copies of AOC forms are available at www.aoc.state.nc.us/www/public/html/forms.html.

a) Magistrates summons (AOC-CVM-100)

(1) This summons is issued when a plaintiff files a complaint to be heard in small claims court by a magistrate. 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.


10

http://www.aoc.state.nc.us/www/public/html/forms.html

Civil Process

(1) The summons tells the defendant that the next step to take to defend himself or herself is to come to the trial at the date, time, and place indicated on the summons.

b) Civil summons (AOC-CV-100)

(1) This summons is issued when a plaintiff files a complaint to begin a civil action in district or superior court. (Any civil case, including others for breach of contract, automobile negligence cases, medical malpractice; family law matters such as divorce, child support, child custody; injunctions; and other civil matters.)

(2) The summons tells the defendant that the next step to take to defend himself (or herself) is to file a written “answer” to the lawsuit with the Clerk of Superior Court and the time restrictions for doing so.

(a) An answer is a response to the plaintiff’s complaint. In it the defendant states what his side of the issues are the plaintiff claims.

(b) If a defendant fails to file an answer within the appropriate time, a default judgment may be entered, which means that a judgment is in favor of the plaintiff for the amount the plaintiff sought in the complaint will be entered “automatically” without a trial.

c) Special proceedings summons (AOC-SP-100)

(1) This summons is issued when a party initiates a special proceeding. A special proceeding is heard initially by the clerk. It includes such proceedings as adoptions, adjudications of incompetence, name changes, partitions, and proceedings to sell property belonging to a decedent’s estate or incompetent’s estate.

(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.


11

Civil Process

(4) The majority of special proceeding summons that deputy sheriffs serve are “Notice of Foreclosure. ”Unlike a summons in summary ejectments, the “Notice of Foreclosure” involves a mortgage or deed of trust against real property.

(a) The “Notice of Foreclosure’ specifies a time and date for a hearing before the clerk of court. Service must be ten (10)days prior to the hearing date.

(b) 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.

The action of a foreclosure is for the court to take away possession of the real property from the owners and return possession and ownership back to the bank or mortgage holder. Serving the foreclosure papers in person gives the court “in personam” jurisdiction to do that. Posting the papers without personally serving the papers on the defendants gives the court “in rem” jurisdiction to turn the property back to the mortgage holder even though the defendants were not personally served.

d) Juvenile summons (AOC-J-340, J-142)

(1) Child is a suspect

The juvenile summons, AOC-J-340, is issued when a juvenile proceeding is initiated against a juvenile for delinquency (which means the juvenile is alleged to have committed an act that would be a crime if he or she were an adult) or for being undisciplined (out of the control of the parent).

The summons orders the juvenile to appear at a hearing at a specified time, date, and place to determine if he or she is delinquent or undisciplined, what disposition is to be made, and orders the parent to appear for determination of whether the parent should be required to pay for the attorney appointed to represent the juvenile.

(2) Child is a victim


12

Civil Process

The juvenile summons, AOC-J-142, is issued when a juvenile proceeding is initiated because a juvenile is alleged to be abused or neglected.

The summons orders the juvenile to appear at a hearing at a specified time, date, and location to determine if he or she is abused or neglected, what disposition is to be made, and orders the parent to appear for determination of whether the parent should be required to pay for the attorney appointed to represent the juvenile.

(3) Along with these juvenile summonses, a juvenile petition is served. The juvenile petition is equivalent to a complaint in other civil cases.

e) Summons in proceeding to terminate parental rights (AOC-J-208)

(1) This summons is issued when a proceeding to terminate a parent’s rights with regard to his or her minor child is begun.

(2) The summons tells the parent (who is termed the “respondent”) that he or she must file an answer to the petition 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 place of the hearing, whether or not an answer is filed.

(3) A petition is also served with this summons.

(4) To legally serve these papers requires delivery to the juvenile or a responsible party, such as a guardian.

3. What to serve, who can serve

NOTE: Show slide, "What To Serve? Who Can Serve?"


13

Civil Process

a) In each of the cases mentioned, a copy of the complaint(or petition) and of the summons must be served on each defendant. Without proper service on the defendant, the court does not have jurisdiction over the defendant and the case cannot proceed. If the deputy does not properly serve the complaint and summons or if the deputy’s return does not properly reflect how the deputy made the return, it is possible that the plaintiff will lose the chance to ever bring a civil lawsuit (see discussion of “statute of limitations” below). In such a case, the plaintiff may seek to hold the sheriff liable for the failure to make proper service or a proper return. For these reasons, it is extremely important that a deputy strictly follow the law in serving a summons and pay particular attention to the return that is made.

b) A complaint and summons may be served by the sheriff or the sheriff’s deputies. If the sheriff returns the complaint and summons unserved, the second or subsequent method at service may be made by the sheriff or the sherif’s deputies or by a private (civilian)process server that the plaintiff hires (except that a private process server cannot serve a complaint in summary ejectment and its accompanying summons).

Civil papers may be divided into “enforceable” and “non-enforceable” 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.

c) In addition to the methods of service by the sheriff or process server that are set out later in this outline, the plaintiff may serve the defendant - without involving the sheriff - by mailing a copy of the complaint and summons by certified or signature confirmation mail, return receipt requested, addressed to the defendant.

4. Issuance and time for service

The Clerk of Superior Court is an elected official, elected every four years for his/her judicial district. The office of the Clerk is an essential step to understand how papers are initiated and handled through the court system. The Clerk of Superior Court is responsible to have papers “issued” at the request of plaintiffs


14

Civil Process

to have defendants served.

NOTE: Refer to handout, “What Does the Clerk of Superior Court Do?”

a) Occasionally, a plaintiff’s legal claim will “expire” if his summons is not issued by a certain “deadline” (statute of limitations). Where the summons is timely issued before the deadline, the plaintiff’s claim remains “alive” even if the service is achieved after the deadline. But what happens if the summons is not served within the60 days, and the deadline prevents the plaintiff from having a new summons issued? 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. An alias or pluries summons is the same as an original summons except a block under the title of the form is checked to indicate that it is an alias or pluries summons. The alias or pluries summons must be served within 60 days after it is issued or it becomes void, as with any summons. In most cases, however, where the sheriff has tried unsuccessfully to have all the re-issued summons served, the plaintiff will serve the defendant by simply publishing a notice of the lawsuit in the newspaper.

Alias means another or alternate and pluries means more than one. So the term means “more than one alternative” to gain service over a defendant.

Instead of using alias and pluries summonses, some clerks use an alternative procedure called an “endorsement.” An endorsement is a stamp on the original summons that indicates the new 60-day period in which the summons may be served. In counties that use endorsements rather than alias and pluries summonses, a deputy returns the original summons when unable to serve it within 60 days after it was issued. If the plaintiff seeks a subsequent summons, the clerk will stamp an endorsement on the original summons, setting out a new date of issuance, and send that back to the sheriff for service.

Endorsement means “to sign,” so an endorsed summons means that the Clerk of Superior Court has re-signed the paper, dated it and put a time on it (“re-issued” it).


15

Civil Process

b) Summons must be signed by the Clerk of Superior Court to be validly issued. Therefore, the first action a deputy must take on receiving summons for service is to make sure that it has been signed by a proper person.

The summons must be issued by the clerk of the county in which the lawsuit is filed. It may be served in the county in which the lawsuit is filed or in any other county in North Carolina in which the defendant resides or may be found.

c) 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.

NOTE: Show slide, "Civil Summons." Point out to the class where on the summons the clerk indicates the date of issuance.

d) 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.

NOTE: Show students where to endorse a Civil Summons.


16

Civil Process

5. What does it mean to “serve” a copy of the complaint and summons on a defendant?

a) Service of summons and complaint means to give a copy of both documents to the defendant or some other person legally suitable for service. The legal effect of proper service is to give the court jurisdiction over the defendant. Service is a very significant “moment” in the life of a lawsuit and it must be done in strict conformity with the law.

b) There is no statutory requirement to read or explain the summons to the defendant. However, some departments have a policy of reading the summons to the defendant or explaining what it means. Many people think that if the sheriff serves something on them, they are about to go to jail. At the very least, it might be useful to tell the defendant that this is not a criminal matter, but a private lawsuit which does not involve the possibility of a jail sentence.

c) A defendant or other proper person for service does not have the choice of saying whether he or she will not accept service. If a defendant refuses to accept the complaint and summons after being told what it is, the deputy may drop it at the person’s feet or do some other act that constitutes delivery. In those cases, the deputy’s return should be specific regarding how the summons was served and why it was served that way.

(1) Errion v. Connell, 236 F.2d 447 (9th Cir. 1956).Service was upheld when the sheriff pitched papers through a hole in the screen door after speaking to defendant, who had then ducked behind door.

(2) Hickory v. Merrit, 197 S.E.2d 833 (Ga. 1973).Personal service upheld when officer left at door stating that he had seen defendant from window, talked to him through door, and defendant had refused to open the door.

(3) Nielsen v. Braland, 119 N.W.2d 737 (Minn.1963). If process server and defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted, service cannot be avoided by physically refusing to accept the summons.

(4) Kurtz v. Oremland, 103 A.2d 53 (N.J. 1954).Wife wouldn’t accept service for husband at their dwelling; sheriff went back several times thereafter and maid said


17

Civil Process

they went to NY or wouldn’t answer door; sheriff didn’t attempt other service; no valid service; but implication is that sheriff could have left summons with wife.

(5) Aqua-Marine Constructors, Inc. v. Banks, 1993

U.S. Dist. Lexis 9884 (D. Or. 1993). Service on a corporation by leaving copies with managing director accomplished by placing papers on director’s desk after director refused to accept them.

6. Upon whom does deputy serve a summons and complaint?

The precise method for service depends on the category (type)of defendant who is being sued. There are two and sometimes three ways to serve each kind of defendant, and under North Carolina law each method of service is of equal status, which means the deputy does not have to try one type of service before serving by an alternative method. Nor does the deputy have to make numerous attempts at one type of service before resorting to another.

The following sections will detail how a deputy must serve various categories of defendants (natural persons, corporations, government bodies, etc.). Because the rules are different for each, the first step for a deputy is to examine the summons(and perhaps the complaint) to ascertain the proper category of defendant.

a) DEFENDANT CATEGORY #1: Natural Person

NOTE: Show slide, "Natural Person."

(1) “Natural person” means an individual human being (as opposed to a business, unit of government, or some other kind of legal entity.)

(2) The sheriff may serve the “natural person” defendant by:

(a) Delivering a copy of the summons and complaint to the individual named in thec omplaint and summons (see special notes at “(3)” below);

(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 (see special notes at “(4)”below), or


18

Civil Process

(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 specified by any statute (see special notes at “(5)” below).

(3) Service by delivering a copy of the summons and complaint to the defendant.

(a) The process may be given to the defendant at any place within his jurisdiction where the sheriff can locate him or her.

(b) The process may be served at any time of the day or night and on any day of the week.

(4) Service by leaving a copy of the summons and complaint at the defendant’s dwelling with a person of suitable age and discretion who also resides in the dwelling.

(a) Service must be made at the defendant’s dwelling house or usual place of abode.

i) “Usual place of abode” means the place where the party is actually living at the time service is made, except for temporary absences. Moore’s Federal Practice ¶ 4-10[3].

ii) Defendant may have more than one residence.

Where the defendant maintains two homes, might have two dwellings or places of abode. Van Buren v. Glasco, 27 N.C. App. 1, overruled on other grounds, Love v. Moore, 305 N.C. 575 (1982).Service at defendant’s North Carolina residence upheld even though defendant worked and owned home in South Carolina and came to North Carolina residence only on weekend.

iii) Need not be his legal residence or domicile. A person has only one legal residence or domicile, which is the place where he intends to make his home.

iv) It is not proper to serve a person who lives at the dwelling or place of abode with the


19

Civil Process

defendant at a location other than the dwelling. Williams v. Harris, 18 N.C. App. 89(1973). Service invalid when mother met sheriff at location away from the house to receive complaint and summons for son. Hall v. Lassiter, 44 N.C. App. 23(1979) - Improper service to deliver process to defendant’s son at defendant’s place of business.

(b) The process must be left with a person of suitable age and discretion.

i) Need not be a family member.

ii) Must be mentally competent.

iii) Suitable age depends on the actual circumstances. Must be of such an age and maturity to understand what is happening and that the papers should be delivered to the defendant.

North Carolina has upheld service on defendant’s 15year old son. [Van Buren v. Glasco, 27 N.C. App. 1(1982).]

Other states as young as 13.[Holmes v. Miller, 206 N.W.2d 916 (Minn. 1973).]

iv) Suitable discretion requirement applies to adults as well as children so sheriff must make sure adult has sufficient understanding to know what is happening and to understand to deliver the papers to the defendant. [Joyce v. Bauman, 154 A. 425 (N.J. 1933) – Illiterate maid is not a person of suitable age and discretion.]

(c) Person with whom left must also reside in dwelling with the defendant.

Cannot serve servant who works in the house but resides elsewhere [Franklin America, Inc. v. Franklin Cat Products, Inc., 94 F.R.D. 645 (E.D. Mich. 1982)] or visitors to the dwelling.


20

Civil Process

(d) A deputy should ask sufficient question of the person with whom the papers will be left to determine whether the person meets the criteria under this statute. The officer serving the papers should be able to answer the following question (to himself) in determining if service should be made for the circumstances: “Can I go to court and testify that in my mind this is valid, binding service, and to explain my actions to the court?” If the officer can answer that question “yes,” then his service is probably good; if not, then the officer probably should not serve the papers at that time.

(5) Service on an agent authorized by appointment or by law to be served or accept service of process.

(a) There are several types of agents listed in this lesson plan. Here is a list of the most common types. As we go through the lesson plan we will discuss which type of agent applies to the given circumstances.

This list may be applied flexibly to the different entities and circumstances of service.

i) 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.

ii) 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. An attorney of record may accept service for his client, but just in the case to which he has appeared in court already. Example: If an attorney comes to the Sheriff’s Office to accept service for a civil summons for his client, chances are the attorney isn’t the attorney of record, because the case may not have gone to court yet. The attorney may only accept service if he is in another category such as attorney-in-fact.


21

Civil Process

iii) an attorney-in-fact: is a person, who does not necessarily have to be a lawyer and many times isn’t, who has the specific job of accepting service for another person, authorized by a document called a “letter of attorney.”

iv) an agent for service: is a person, not necessarily an attorney, who can specifically accept service of process because of a job or position he holds for a company, or through a document such as a “power of attorney.”

v) a registered agent: is an agent, a representative, usually for a corporation, who is specifically named and designated through the Secretary of State. (The Office of the Secretary of State of North Carolina in part is responsible for chartering corporations)

vi) a managing agent: is a person who has some management authority in the running of a business.

vii) 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.

viii) a guardian ad litem: is a guardian who is lawfully appointed for a specific suit or case; “adlitem” means “for the suit.”

ix) the holder of power of attorney: is a document legally authorizing another person to act as a person’s agent. A power of attorney can be general or specific. An officer serving the holder of power of attorney for the defendant should probably look at the authorizing document to ensure the document authorizes service of process.

(b) Defendant must specifically appoint person to be an agent by appointment for purposes of accepting service.


22

Civil Process

i) It would be rare that an individual would ever appoint someone else to receive process on his or her behalf.

ii) The attorney who generally handles legal affairs for a defendant is not the defendant’s agent by appointment for the service of process. However, once the summons and complaint have been served and the attorney makes an appearance on the defendant’s behalf, future process may be served on the attorney.[Beck v. Beck, 64 N.C. App. 89(1983).]

iii) An example of a situation where an individual would appoint an agent for purposes of accepting service is found in G.S. 28A-4-2, which provides that a nonresident personal representative who wishes to administer an estate in North Carolina must appoint a North Carolina resident as an agent to receive service of process. [G.S. 28A-4-2.]

(c) Agent authorized by law means that a statute specifically provides for a particular person to accept service.

An example is G.S. 1-105, which provides that any nonresident who operates a motor vehicle within this state appoints the Commissioner of Motor Vehicles as a proper person to accept process on any lawsuit arising out of a motor vehicle accident in this state.

(d) An agent may be served in any manner authorized by any statute. In a lawsuit against an out-of-state executor, as the administrator for a decedent’s estate, the court upheld service on a lawyer who was the appointed agent to receive service by leaving copies with the lawyer’s partner at the lawyer’s office. The court said that the process agent was properly served under the provisions for serving a partnership by leaving a copy with any general partner or by delivering a copy to the person apparently in charge at the office of the partnership. [Storey v. Hailey, 114 N.C. App. 173 (1994).]


23

Civil Process

b) DEFENDANT CATEGORY #2: Natural Person Under Legal Disability

NOTE: Show slide, "Natural Person Under Legal Disability."

(1) Disability for purposes of this statute means that either the person is a minor (under the age of 18years) or lacks the mental competence to manage his or her affairs.

(a) A person incarcerated in prison is not under a legal disability.

(b) A person who is physically or mentally handicapped is not under a legal disability unless the impairment is sufficient to render the person incompetent to manage his or her affairs.

(2) The person under the disability must be served by one of the methods authorized for service on a natural person.

(3) In addition, a second copy of the complaint and summons must be served on another person as follows:

(a) If the defendant is a minor - on a parent or guardian having custody of the child or, if none, any person having control and care of the child. If there is no parent, guardian, or other person having control and care of the child, a guardian ad litem must be appointed under G.S. 1A-1, Rule17, and the sheriff must serve a copy oft he summons and complaint on the guardian ad litem.

i) A guardian is a person appointed by the clerk of court to take care of a minor if that minor’s parents are deceased. If the minor has a guardian, there will be a court order appointing the person as guardian.

ii) A guardian ad litem is a person appointed by the court (it can be by the clerk, a magistrate, or a judge)to defend the minor child in a specific lawsuit.


24

Civil Process

iii) A person having control and care of the child could be a person or agency that has custody of their child such as a foster parent or the Department of Social Services, but could also be a person with whom the child is living even though that person has not been given lega custody. For instance, the child might be living with his grandmother or with her aunt and the grandmother or aunt is providing all of the care for the child.

(b) If the defendant is incompetent - on the guardian if the defendant has been adjudicated incompetent in an incompetency proceeding. If the defendant has not been adjudicated incompetent, a guardian ad litem must be appointed, and the sheriff must serve a copy of the summons and complaint on the guardian ad litem.

i) An incompetency proceeding is heard by the clerk of court. Upon adjudicating a person incompetent, the clerk appoints a guardian to handle the incompetent’s affairs.

ii) A guardian may be an individual or a corporation that is authorized to act as guardian.

(c) The sheriff must serve the parent, guardian (who is a natural person),person having control and care of the child, or guardian ad litem by any method authorized for a natural person. If the guardian is a corporation, the deputy may serve the guardian by any method authorized for serving corporations. If the persons have control and custody of the child is a state or local governmental agency, the agency must be served in the manner authorized for serving that type of government.

c) DEFENDANT CATEGORY #3: Corporation

NOTE: Show slide, "Corporation."

(1) A corporation is a business that has taken the necessary steps to be set up as a separate legal entity. If the corporation is a North Carolina corporation that means that it has filed letters of incorporation with the NC Secretary of State. The consequences of creating a corporation are that the corporation is a legal entity in


25

Civil Process

itself that can sue and be sued and can own property. Most importantly, the corporation itself and not its officers is liable for its debts. The corporate name must contain the word “corporation,” “incorporated,” “company,” or “limited,” or the abbreviation “corp.,” “inc.,” “co.,” or “ltd.” [G.S. 55-4-01.] A deputy can determine if the defendant is a corporation by calling the Secretary of State’s Office.

Only a corporation may use the word “incorporated” or the abbreviation “corp.,” “inc.” in its name. However, any business can use the word “company” or the abbreviation “co.,” and partnerships may use the word “limited” or the abbreviation “ltd.” in its name.

(2) A foreign corporation (one incorporated in another state) must obtain a certificate of authority from the Secretary of State before transacting business in this state. A deputy can determine if the defendant is a foreign corporation by calling the Secretary of State’s Office.

However, even if the foreign corporation has not qualified in North Carolina, it may be sued in this state if it does business in the state.

(3) The deputy may serve the corporation by:

NOTE: Show slide, "Serving a Corporation."

(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 in a manner specified by any statute (see special note at # (6) below).

(4) Service by delivery to an officer, director, or managing agent of the corporation.


26

Civil Process

(a) Obviously, since a corporation is not an individual, the corporation has to be served by leaving copies with some individual.

(b) This requires delivering the process to the officer, director, or managing agent personally.

(c) Director means a member of the board of directors of the corporation and officer means an officer of the corporation.

(d) A managing agent is a person who is “in charge, and has the management of some department of the corporation's business, the management of which requires of the agent the exercise of independent judgment and discretion.” [Williams v. Burroughs Wellcome Co., 46 N.C. App. 459(1980).]

(e) There is no strict legal definition of the term "managing agent," and whether a person is a managing agent depends on the circumstances of each case. [Royal Furniture Co. v. Wichita Furniture Co., 180 N.C. 531 (1920).]

(5) Service may also be achieved by leaving copies in the office of an officer, director, or managing agent with the person who is apparently in charge of the office.

(a) The person on whom served does not have to be, in fact, in charge, merely “apparently” in charge. [Williams v. Burroughs Wellcome Co., 46 N.C. App. 459(1980) (secretary of managing event agency served.)]

(b) The person apparently in charge need not be a high-ranking official, but the deputy must ask questions to make sure that the person with whom he or she leaves the complaint and summons is apparently in charge. [Simms v. Mason’s Store, Inc., 18 N.C. App. (1973) (officer leaving with security guard who wasn’t employee of corporation not sufficient.)]

(c) Deputies should be cautious about leaving copies with person “apparently in charge” rather than officer, director, or managing agent at business after regular business hours. [City of Durham v. Lyckan Develop. Corp., 26 N.C. App. 210 (1975)


27

Civil Process

(service on unknown person after normal office hours not service on person apparently in charge.)]

(6) Service may also be achieved on an agent authorized by appointment or by law to be served or to accept service of process.

(a) Every corporation must maintain a registered office in North Carolina and must name a registered agent to receive service of process. The registered agent must be a corporation or an individual who resides in North Carolina and whose business office address is identical to the registered office address. The name of the registered agent and the location of the registered office must be filed with the Secretary of State. [G.S. 55-5-01.] The registered agent is an agent authorized by appointment.

(b) Service on agent may be in any manner authorized by statute.

If the registered agent is a natural person, he or she may be served personally or a copy of the complaint and summons maybe left at the registered agent’s dwelling with a person of suitable age and discretion who also resides at the dwelling. [Great Dane Trailers, Inc. v. North Brook Poultry, Inc., 35 N.C.App.752 (1978).]

(c) An agent appointed by law is one appointed by statute. An example is G.S.55-5-04, which provides that if no registered agent has been appointed or if the registered agent cannot with due diligence be found at the registered office, the Secretary of State is the agent upon whom such process may be served.

Service on the Secretary of State can be made only by the Wake County sheriff and the plaintiff is responsible for determining whether this method of service is proper and for having the clerk issue an alias and pluries summons to be served on the Secretary of State.

(7) Sometimes corporations engage in business under a name other than the name registered with the Secretary of State. In that case the corporation must file in the office of the register of deeds of the county in


28

Civil Process

which the corporation operates a certificate giving the assumed name under which the business operates and the name and address of the owner. [G.S. 66-68.]

(8) The rule regarding service on corporations also applies to professional corporations. A professional corporation is the name given to a group of persons who provide professional services and want the benefit of having a corporation’s status as a separate legal entity. Professional services are any services to the public that require a license from a licensing board to render the service and include professions such as law, medicine, nursing, architecture, veterinary medicine, landscape architecture, and public accountant. Professional corporations can use the words “Professional Association” or “P.A.” or

“Professional Corporation” or “P.C.” instead ofthe usual corporate designations.

NOTE: Chapter 57C of the General Statutes creates a similar but distinct type of business entity known as a "Limited Liability Company"(LLC) or "Professional Limited Liability Company." Pursuant to G.S. 57C-2-40, each limited company must continuously maintain a registered office and a registered agent whose sole duty is to forward to the LLC at its last known address any notice, process, or demand that is served on the registered agent. Pursuant to G.S. 57C-2-43, the registered agent is an agent of the LLC for service of process, notice, or demand required or permitted by law to be served on the LLC. If the LLC fails to appoint or maintain a registered agent, or when its registered agent cannot with due diligence be found at the registered office, then the Secretary of State shall be an agent of the LLC upon who many process, notice, or demand may be served.

d) DEFENDANT CATEGORY #4: Partnership

NOTE: Show slide, "Partnership."

(1) A partnership is an association of two or more persons to carry on as co-owners of a business for profit. Unlike a corporation, all partners are jointly and severally liable for the acts and obligations of the partnership. There is also a specific statute governing limited partnerships. A limited partnership is one in which some partners have


29

Civil Process

limited liability for the acts and obligations of the partnership, while others who are general partners have full liability. The name of a limited partnership must include the words “limited partnership.”

(2) The sheriff may serve a partnership by:

(a) Delivering the complaint and summons to any general partner, or to any attorney-in-fact or agent authorized by appointment of law to be served (see special notes at # (3) below); or

(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 (see special notes at # (4) below).

(3) Service on general partner, attorney-in-fact, or agent

(a) Frequently, the lawsuit will be filed against partnership and the individual general partners, because the general partners are liable for the debts as well as the partnership. If the deputy finds one of the general partners, the deputy should serve a copy of the complaint and summons on the general partner as an individual person who is a defendant and a second copy on the general partner to accomplish service on the partnership as a defendant by leaving copies with a general partner. Of course, the other general partners who are listed as defendants must also be served as natural persons. Service on one general partner, however, is not service on other general partners who are sued individuals; they must also be served as natural persons.[Shelton v. Fairley, 72 N.C. App. 1 (1984).]

(b) All limited partnerships are required to maintain a registered office and name a registered agent at that office to receive service. These are listed with the Office of the Secretary of State. Also the listing of a limited partnership will include the names and addresses of the general partners and limited partners. A deputy may not serve a partnership by leaving copies with a limited partner.

(c) An attorney-in-fact is a person who holds a power-of-attorney (sometimes referred to as “POA”) for a


30

Civil Process

partnership. That person should have a legal document indicating that he holds a power of attorney.

(4) Service by leaving copies of the complaint and summons in the office of a general partner or the attorney-in-fact or agent with the person who is apparently in charge of the office.

The same rules apply to the person apparently in charge of a partnership that are discussed in the section above for corporations.

(5) Any partnership that engages in a business under an assumed name other than the real name of the owners (or if a limited partnership, other than the name registered with the Secretary of State) must file in the office of ther egister of deeds of the county in which the business operates a certificate giving the name under which the business operates and the name and address of the owner. [G.S. 66-68.]

e) DEFENDANT CATEGORY #5: Unincorporated Association, Organization, or Society Other than a Partnership

NOTE: Show slide, "Unincorporated Association."

(1) 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. [Black’s Law Dictionary.]

(2) The sheriff may serve an unincorporated association, organization, or society by:

(a) Delivering a copy of the papers to an officer, director, managing agent, or member of the governing body of the unincorporated association, organization, or society,

(b) By leaving copies in the office of the officer, director, managing agent, or member of the governing body with the person apparently in charge of the office, or


31

Civil Process

(c) Delivering a copy of the papers to an agent authorized by appointment or bylaw to be served or by serving process on the agent in a manner specified by any statute.

f) DEFENDANT CATEGORY #6: Sole Proprietorship

NOTE: Show slide, "Sole Proprietorship."

(1) Frequently, an individual owns and operates a business that is not incorporated and in which he has no partners. This kind of business is called a sole proprietorship. In that case, the business is not a separate legal entity, and the owner is the defendant in the lawsuit. Sole proprietorships are usually designated by captions such as “John Doe t/a John’s Mini Mart” or Sam Barber d/b/a/“Main Street Esso.” The letters “t/a” mean “trading as” and the letters “d/b/a” stand for “doing business as.” In those cases, the deputy serves the individual as a natural person.

(2) Service on sole proprietorship as if it were an unincorporated association is improper. [Park v. Sleepy Creek Turkeys, Inc., 60 N.C. App. 545(1983).]

g) DEFENDANT CATEGORY #7: The State of North Carolina or an Agency of the State

NOTE: Show slide, "State of North Carolina."

h) DEFENDANT CATEGORY #8: Counties, Cities, Towns, Villages or Other Local Public Bodies

NOTE: Show slide, "Counties, Cities, or Towns."

(1) 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.

A city clerk is appointed by the City Manager and basically is responsible for maintaining and keeping the records that run a city. They also schedule and maintain records for the “City Fathers,” the elected officials.

(2) County: The sheriff may serve a county by personally delivering a copy of the complaint and summons to the


32

Civil Process

county manager or to the chairman or any member of the board of commissioners or to the clerk of the board.

A county clerk is appointed by the County Manager and basically is responsible for maintaining and keeping the records that run the county. They also schedule and maintain records for the elected county commissioners.

(3) Other political subdivision: The sheriff may serve any other political subdivision of the state, any county or city board of education, or other local public district, unit, or body of any kind by personally delivering a copy of the complaint and summons on an officer or director of the political subdivision or by personally delivering a copy to an agent or attorney-in-fact authorized by appointment or statute to be served.

(a) Members of the board of education are directors and the superintendent is an officer as the boar’s ex officio secretary. [G.S. 115C-41.]

(b) Long v. Cabarrus County Bd. of Educ., 52 N.C. App. 625 (1981) (service on board of education by leaving copies at dwelling of chairman of the board with a person of suitable age and discretion who alsor esides at dwelling was not valid).

(c) An example of another political subdivision of the state that sometimes gets sued is the Area Mental Health, Developmental Disabilities and Substance Abuse Authority. The sheriff may serve that local governmental unit by personally delivering a copy of the complaint and summons to any member of the area board.

7. Special method of service for summons and complaint in summary ejectment cases (AOC-CVM-201)

NOTE: Show slide, "Summary Ejectments."


33

Civil Process

a) A summary ejectment lawsuit is a suit by a landlord to evict the tenant from the rental property. Usually, summary ejectment actions are brought in small claims court. Because the cases are required to be set for trial within seven working days after the summons is issued and the remedy is to remove the defendant from real property, G.S. 42-49 creates a special method for service of process of summary ejectment actions.

b) 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.) The steps must be followed exactly, or service is not complete. Accomplishing only one of these steps does not constitute complete service so officers should be familiar with all the steps.

(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 th defendant requesting that the defendant come to the office to be served or set an appointment when the deputy may serve him.

(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. 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." Note that the deputy cannot post the summons and complaint unless a copy of each was also mailed to


34

Civil Process

the defendant by first-class mail soon after the sheriff’s office received the process.

(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.

8. Return of service

a) Almost as important as serving the summons and complaint properly is the requirement for the deputy t make a proper return of service to the clerk.

The form of the return is left up to the officer who served the paper. The Administrative Office of the Courts has come up with fill-in-the-blank returns for most processes. However, it is NOT uncommon for the actions of the officer to not fit the fill-in-the-blanks. So, officers may change the format of the returns to fit what is needed to accurately express how a paper was served.

Officers can “scratch through” the information in the boxes and put in their information. Officers can even take a blank sheet of paper and write out what they did to get the process served. Officers must remember that all their returns are required to answer who, where, why, what, how, and when.


35

Civil Process

b) G.S. 1-75.10 requires the sheriff to certify that he or she has served the process, showing the place, time, and manner of service. This answers the question of who, where, why, what, how, and when.

c) A deputy’s return that shows legal service is prima facie evidence of service in fact, but if it is not complete, other evidence may be offered to establish that service was made as required by law. [Williams v. Burroughs Wellcome Co., 46 N.C. App. 459 (1980).] A return may not be set aside except on clear and unequivocal evidence by more than one person. [Guthrie v. Ray, 293 N.C. 67 (1977).]

d) The best practice is for deputy to make a return specifying in detail upon whom and in what manner service was made. And if the deputy is unable to serve the defendant, the deputy should describe what attempts were made to locate the defendant. For example, “went to defendant’s house on 5/6 at 10 a.m.;5/8 at 6:30 p.m.; 5/15 at 7:00 p.m. No one answered the door at any of those times, although on 5/8 and 5/15 two cars were in the driveway. I could not find out where the defendant works.” [Rollins v. Gibson, 293 N.C. 73 (1977).]

e) §162-14. Duty to execute process. Every sheriff, by himself or his lawful deputies, shall execute and make due return of all writs and other process to him legally issued and directed, within his county or upon any river, bay or creek adjoining thereto, or in any other place where he may lawfully execute the same.

f) §162-50. Penalties. Upon a finding that the sheriff, personally or through his lawful deputies, has willfully failed or neglected to perform any duty imposed by this Chapter, or has made any false return, he shall be subject to damages of not more than five hundred dollars ($500.00), and such damages recovered shall be paid to the person aggrieved. Nothing in this section bars an independent action for damages by the person aggrieved.

g) Return of service on natural person.

(1) If the defendant is a natural person and served personally, the sheriff must indicate the name of the defendant, the date of service, and that the defendant was served personally. Although the statute indicates that the return must indicate the place of service, the present summons form does not require that information when the defendant is served personally. To


36

Civil Process

fully comply with the statute, deputies should write in the place of service.

(2) If the defendant is served by leaving a copy with a person of suitable age and discretion, the return must indicate the date of service, the place, the name of the person with whom it was left, and that it was left at the dwelling with a person of suitable age and discretion who also resides at the defendant’s dwelling.

NOTE: Show students a copy of return of Civil Summons to indicate how to fill out return.

h) Return for service on corporation

(1) When making a return on a corporation, the return must show the corporation as the defendant, and it must show the date, place, name, and title of person to whom the process is delivered.

(2) For example, “ABC, Inc. was served on June 25,1997, by delivering a copy to Robert Smith, Registered Agent, at 4504 Main Street, Winter ,N.C.”

NOTE: Show students a copy of return on Civil Summons to indicate how to fill out return.

NOTE: Show NCJA video, Civil Process (14 minutes).

9. Bankruptcy

Where the defendant has filed for bankruptcy protection, the deputy should not attempt to serve a summons if the nature of the underlying legal proceeding is an attempt to collect a debt. In such cases, the deputy should return the summons to the clerk of court, specifying in the return that defendant has filed for bankruptcy.

Where the deputy is uncertain about the status of defendant’s bankruptcy filing or the nature of the underlying legal claim, a deputy may wish to contact plaintiff’s attorney for advice about how to proceed. Another approach is to call the bankruptcy court and ask to speak with the bankruptcy “trustee.’ (A trustee may be thought of as a “referee” who is assigned to a bankruptcy case to ensure that the rules are followed.)Trustees are experts in bankruptcy law and are in the best position to advise the deputy about whether to serve the summons or return it to the clerk unserved.


37

Civil Process

A final approach: As with all difficult legal issues, a deputy should consider contacting the sheriff’s legal counsel or county attorney for guidance about how to proceed.

NOTE: Review with students the sample ("filled out") summonses in the handout section. Students should of course examine the party defendant(s), classifying each for proper method of service. Students should be alert for special service situations, such as summonses that have more than one defendant (for example, "Whitewater Land Development Associates and William Clinton"--partnership and natural person on the same summons), and other summonses that give rise to special service considerations. Instructors may wish to add facts for discussion purposes. For example:

Role play that a student is attempting to serve the "Brady" summons. Create illustrative hypotheticals for analysis and decision-making (e.g., who is home when service is attempted: defendant Mike only; Alice the housekeeper; 13-year-old Greg; etc.).

With the "Chappaquiddick Construction" summons, you may advise the students that a receptionist is the only person present, all corporate officers are out of town on business. Can the receptionist be served? What facts are important? What questions might an officer direct to the receptionist to determine whether she is a managing agent? Apparently in charge? etc.

Assume the "Charles Faircloth" Magistrate Summons is a summary ejectment action. Review with students how this service differs from a standard summons. (Students may ask how, in "real life," they will recognize this as a summary ejectment summons as compared with other types of small claims actions--by simply examining the complaint to see that it is for "summary ejectment.")

Role play that while attempting the "Keith Burrows" summons, defendant Burrows refuses to "accept" the summons and closes the door. In the alternative, assume Keith’s wife answers the door, states Keith is not home, and that he instructed her not to accept any paperwork from the sheriff.

Instructors may also wish to direct students’ attention


38

Civil Process

to the reverse (return) side of the summonses for discussion of how to properly complete the return; whether special facts should be added in support of the service attempted; etc.

B. Serving Subpoenas (AOC-G-100)

NOTE: Show slide, "Serving Subpoenas."

1. A subpoena is a legal process that commands a person to appear in court at the appointed time. There are two kinds of subpoenas. One is a subpoena to testify, which is an order to a witness to appear to testify at a court proceeding or deposition.

The subpoena tells the witness the name of the court, title of the case, and the date, time, and location where the witness is to appear. The second is a subpoena to produce evidence (formally called a subpoena duces tecum), which is an order to bring specified evidence (typically documents) to a court proceeding. This subpoena tells the witness the name of the court, title of the case, specific items to be produced, and the date, time, and location of the court proceeding where the items are to be brought. [G.S. 1A-1, Rule 45.]

2. The sheriff, a deputy, or any other person at least 18 years of age who is not a party may serve a subpoena by delivering it to the person named in the subpoena. Sometimes the attorney will serve the subpoena and the sheriff will not be asked to serve it. However, frequently the party will give the subpoena to the sheriff’s office for service.

3. A subpoena to testify or to produce documents may be issued by a clerk, judge, or magistrate. A subpoena to testify also is sufficient if signed by an attorney or a party to the lawsuit, and a subpoena to produce documents is sufficient if it is signed by the attorney requesting it.

4. There is no time limit on the validity of a subpoena, but as a practical matter the subpoena must be served before the time set for the appearance of the person named. One of the difficult problems with subpoenas is that often subpoenas for a large number of witnesses in a case are given to the sheriff’s department two or three days before the case is set for trial.

5. Service of subpoena to testify

a) The sheriff may serve a subpoena to testify by:


39

Civil Process

NOTE: Show slide, "Subpoena to Testify."

(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.

b) 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.

c) Service by telephone communication

(1) The sheriff may designate anyone who is at least18 years of age and not a party to serve subpoenas to testify by telephone communication.

(2) The sheriff usually designates all deputies t serve this process, but may also designate office employees or jailers who are not sworn deputies to serve subpoenas.

(3) The deputy must determine that he or she is speaking with the person named in the subpoena and must tell the named person the location, date, and time that he or she is subpoenaed to appear to testify in the named case.

(4) The deputy must talk to the person named in the subpoena. Leaving a telephone message with a person other than the person named is not valid service of a subpoena.

d) One issue that arises is when a deputy in County A has a subpoena for an individual who lives or works in County B.

(1) It would probably not be proper service for the deputy in County A to telephone the person at location in County B to serve the process. No case has answered this question, but it is likely that the court would hold that the witness is served in the county where he receives the telephone communication and because that is not the deputy’s county, the deputy has no authority to serve process there.


40

Civil Process

(2) The person issuing the subpoena may send a copy of the subpoena to the sheriff’s office in County B to have it served, or it may be sent by the Clerk of Superior Court in the county in which it was issued. County A could send a copy of the subpoena to the sheriff of County B and ask him to serve it or could fax a copy to County B and have a sheriff of County B serve it by telephone communication and then notify the deputy in County A when and how that service was effected. If there is not time for the foregoing, the best approach may be to go ahead and attempt "service" by telephone and let the witness know he/she is needed in court.

6. Subpoena to produce evidence may be served by:

NOTE: Show slide, "Subpoena to Produce Evidence."

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 o signature confirmation mail, he or she will serve in that manner without involving the sheriff.

C. Service of Certain Process Arising Out of Family Disputes

1. Child custody orders

NOTE: Show slide, "Child Custody Orders." Refer students to handout, “Morris v. Morris.”


41

Civil Process

a) One of the most difficult orders that sheriffs must serve are ones involving child custody matters. These orders arise out of district court actions in which one parent is granted custody of the child to the exclusion of the other parent, and the order to the sheriff is to pick up the child and deliver him or her to the parent who is granted custody.

b) Frequently, child custody orders will state which parent is entitled to custody of the child and might even order one parent to deliver the child or turn over custody to another parent. The sheriff should not get involved in helping the parent 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.

c) The order must be signed by a North Carolina district court judge.

(1) The order is effective if issued by a NC judge anywhere in NC; it need not be issued in the county in which the sheriff is located.

(2) The order is not effective if issued by a judge from another state. Sheriffs should make sure that the order is from a North Carolina court. It is not uncommon for a person to come to the sheriff asking for a child to be picked up based on an out-of-state order. To be enforceable in this state, the person must get a NC district court judge to issue the order pursuant to procedure set forth in G.S. 50A.

2. Domestic violence civil protective orders (AOC-CV-306)

NOTE: Show slide, "Domestic Violence Protective Order."

a) Another frequent action in which deputies must serve process is a civil action in which the plaintiff is seeking a domestic violence protective order. The purpose of this lawsuit is to protect victim (aggrieved party) from violence.

b) Definition

(1) 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)


42

Civil Process

upon an aggrieved party by a person with whom the aggrieved party has had a personal relationship.

(2) The term "personal relationship" includes current or former spouses, persons of opposite sex who live or have lived together, parents and grand parents of a child, persons who have a child in common, current or former household members, or persons of the opposite sex who are in a dating relationship. (A "dating relationship" is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship.)

Definitions: 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)

c) Civil domestic violence protective orders are in addition to criminal remedies, not instead of those remedies.

d) Procedure to begin a domestic violence action

(1) Domestic violence actions are begun like other civil lawsuits. The plaintiff files a complaint (AOC-CV-303) and a civil summons is issued. What is different about this action is that at the time the plaintiff files the complaint, he or she automatically asks for a hearing within 10 day and may also ask for an immediate ex parte hearing to grant a protective order. An ex parte hearing means a hearing without the defendant being notified and having an opportunity to appear.

(2) If the plaintiff requests an ex parte hearing, he or she will usually be given a hearing immediately but must be given one with 72hours. The ex parte hearing may be before a district court judge or a magistrate if a judge I not available. (Because the chief district court judge must authorize the magistrates to hear ex parte domestic violence protective orders, in some counties magistrates are authorized to hear them and in other counties they are not.) The judge or magistrate will determine whether to issue an ex parte protective order to give the plaintiff immediate protection from the defendant. Whether or not the judge or magistrate


43

Civil Process

issues an ex parte order, a hearing for a regular protective order will be set within 10days.

e) Length of validity of protective orders

(1) An ex parte order issued by a magistrate is good for the shorter of 72 hours or the end of the next day on which the district court is in session. The order itself has the specific ending time on it. It is not enforceable after that time.

(2) The length of time ex parte order issued by a district court judge is valid is not clear. It is either good for 10 days only like other temporary restraining orders, or it is valid until a regular protective order is issued or one year, whichever occurs first. The order itself has the specific ending time on it. It is not enforceable after that time unless a new order extending the validity of the ex parte order has been entered by a district court judge.

(3) A domestic violence protective order is valid for one year and is renewable for up to one additional year.

(4) The law gives the judge or magistrate authority to grant any relief to the victim that will protect him or her from violence. It specifically provides that the order may direct party to refrain from acts of domestic violence; grant possession of the residence to plaintiff and exclude defendant therefrom; require defendant to provide alternative housing for plaintiff and children; award temporary custody of children subject to custody rules; order eviction of defendant from residence and assistance to victim in returning to it; order defendant to make payments for support of child; order defendant to make payments for support of spouse; provide for possession of personal property of the parties; award costs and attorney’s fees to either party; prohibit a party from purchasing a firearm; order any party to attend an abuser treatment program; and any other prohibition or requirement necessary to protect a party or minor child.

f) Process served by sheriff

(1) If no ex parte is granted, the sheriff will have the following papers to serve on the defendant: a complaint for domestic violence protective order, a civil summons, and a notice of hearing on domestic violence protective


44

Civil Process

order (AOC-CV-305). These can be served in any way authorized for service on a natural person.

(2) If an ex parte order is granted, the sheriff will have the following papers to serve on the defendant: a complaint for domestic violence protective order, a civil summons, a notice of hearing on domestic violence protective order (AOC-CV-305), and an ex parte domestic violence protective order (AOC-CV-304). These papers can be served in any manner authorized for service on a natural person.

(3) Enforcing a domestic violence protective order

Like other civil orders, if a defendant violates the order, the plaintiff may seek to have a judge, clerk, or in some cases, a magistrate, issue a show cause order as to why the defendant should not be held in contempt for violating the order. In that case, an order to appear and show cause for failure to comply with domestic violence protective order (AOC-CV-308) will be issued. That order notifies the defendant when and where to appear for a hearing on contempt. It must be served by the sheriff by personal delivery to the defendant.

(4) Parts of the domestic violence protective order may be enforced in a completely different manner - by arrest by a law enforcement officer and release upon meeting the pretrial conditions set by a judge or a magistrate. A law enforcement officer shall arrest and take a person into custody without a warrant if the officer has probable cause to believe that the defendant violated the provisions of a domestic violence protective order excluding the defendant from the residence or directing the defendant to refrain from (1) threatening, abusing, or following the other party, (2) harassing the other party, including by telephone, visiting the home or workplace, or by other means, or (3) otherwise interfering with the other party; and if the victim, or someone acting on the victim’s behalf, presents the law enforcement officer with a copy of the order or if the officer determines that such an order exists and can ascertain the contents through phone, radio, or other communication with appropriate authorities. Officers should remember that probable cause is probable cause and the definition does not change for domestic violence calls. If the deputy has probable cause to believe the


45

Civil Process

defendant has violated the protective order in one of those two ways, the deputy must arrest the defendant and take him before a magistrate.

The magistrate will give the defendant his or her rights and then will place the defendant in jail until a district court judge sets conditions of pretrial release. If a judge has not set conditions of pretrial release within 48 hours after the arrest, the defendant must be brought back before a magistrate who will then set conditions of pretrial release and issue an order to appear and show cause for violation of court order after arrest by officer.

Note: Recent changes to Chapter 50B willful violations of any provisions of D-V Protective Order are now Class A-1 misdemeanors.

Note: As of February 1, 2000, requirements for officers to arrest for contempt or show cause orders will be repealed. As of December 1, 1999, officers are required to make warrantless arrests for violating protective orders provisions.

A NOTE ABOUT OUT-OF-STATE DOMESTIC VIOLENCE ORDERS: If presented with an out-of-state domestic violence protective order (by whatever name), an officer must enforce after December 1, 1999, when there is probable cause to believe a violation has occurred.

After February 1, 2000, an officer may rely on a copy and the victim’s statement that the order is still valid. (Between December 1, 1999 and February 1, 2000, check on its validity in the same manner as previously used.)

Note: As of December 1, 1999, no registration process is necessary and out of state orders are enforceable in the same manner as North Carolina orders.

(5) Emergency assistance (G.S. 50B-5)

A person who alleges that he or she has been the victim of domestic violence may request the assistance of a local law enforcement agency. The agency shall respond to the request for assistance as soon as practicable. The officer may take whatever steps are reasonably necessary to protect the complainant from


46

Civil Process

harm, transport to magistrate’s office, hospital, etc., and accompany complainant to residence so that he or she may remove food, clothing, medication, and such other property as is reasonably necessary to enable complainant and any minor children to remain elsewhere pending further proceedings. In providing assistance, no officer may be held criminally or civilly liable for reasonable measures taken under the authority of 50B-5.

D. Prejudgment Remedies

NOTE: Show slide, "Prejudgment Remedies."

A prejudgment remedy is the method used to enforce a right, redress an injury, prevent a violation of a right or compensate for a violation of rights before a final judgment is decided in a civil action. Different remedies have been developed to deal with different circumstances. There are four basic remedies provided under North Carolina law. They are: attachment, garnishment, claim and delivery, and restraining orders or injunctions. There are other more specialized remedies which may be obtained, but these are the most common. During the next period of instruction we will cover each of these remedies briefly to familiarize you with the basic requirements of each of them.

1. Attachment

The first prejudgment remedy we will discuss is attachment. 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. The purpose of an attachment is primarily to provide security for the satisfaction of any judgment awarded the plaintiff. An attachment is issued to supplement or aid a civil action and not to replace the action. The action must be completed or the order of attachment will be dissolved. The nature of attachment is like a preliminary execution against property. The property seized must be held in the custody of the law. Attachment does not give the plaintiff a right to possession of any of the property seized. The only right the plaintiff has under an order of attachment is aright to have the property sold and the proceeds applied to the satisfaction of his judgment. Attachments can only be issued at the beginning of a civil action or during the trial of the action. An attachment may not be issued or enforced after a final judgment has been reached in the action.


47

Civil Process

The seizure of property under an order of attachment will also give the court authority to decide a judgment even though the defendant was not served personally and did not appear in court. The property levied on under attachment will then be applied to the satisfaction of the judgment. This is intended to protect creditors from defendants who obtain money or property and then flee to avoid payment.

a) Issuance of order of attachment

The remedy of attachment is not available in all civil actions or all courts. 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.

The only officers who may issue an order of attachment are the clerk of the court in which the action is commenced or a judge of the appropriate trial division of the District or Superior Court. A magistrate cannot issue an order of attachment.

The plaintiff requests the issuance of an order of attachment by filing an affidavit. (Refer to AOC-CV-300)

An attachment will only be issued if the defendant is found to be one of the following:

a nonresident of the State of North Carolina;

a foreign corporation (any corporation chartered outside the State of North Carolina);

a domestic or North Carolina corporation whose officers cannot be found in this state after a reasonable search;

a resident of North Carolina who intends to defraud his creditors or avoid service of summons by leaving or preparing to leave North Carolina or by concealing


48

Civil Process

himself;

a person or domestic corporation who intends to defraud creditors by removing or preparing to remove property from North Carolina or by assigning, disposing of or hiding property or is preparing to assign, dispose of, or hide property.

Attachment is designed to protect creditors by seizing and holding property in the custody of the law to prevent a defendant from running out on his just debts.

Before the court issues the order of attachment, the plaintiff must furnish a bond in an amount set by the court. The purpose of the bond is to protect the defendant from damage or loss as a result of the attachment. Bond must be at least $200.00 and taken by the Clerk of Court or Judge.

b) Levy or seizure of property under order of attachment

The order of attachment must comply with the statutory requirements of G.S. 1-440.12 before it can be enforced. Before seizing property under an order of attachment, the sheriff or his deputy must note on the order the date it was received by his department and then check for the following items on the order of attachment: (AOC-CV-301)

NOTE: Show slide, "Valid Order of Attachment."

The name of the court in which the action has been filed (District or Superior Court of a particular county);

The title of the action (names of the parties);

Issued in the name of the State;

Directed to the sheriff of a named county (that county must be his county);

A statement that an affidavit in attachment has been filed with the court in this action;

A statement that the required attachment bond has been given to the court and that the court is satisfied that the facts stated in the affidavit are true;

Direct the named sheriff to attach and safely keep sufficient property of the defendant's to satisfy the


49

Civil Process

plaintiff's demands plus costs and expenses;

A command that the order of attachment be returned to the issuing court within the time allowed by law;

The date of issuance of the order;

Signatures of the clerk or issuing judge.

Unless the order contains all of these items, the order is not valid and cannot be enforced.

After confirming that the order of attachment complies with the above requirements, the deputy must proceed to locate and identify property which would be subject to levy and sale under this order. G.S. 1-440.4 states:

NOTE: Show slide, "G.S. 1-440.4."

"All of a defendant's property within this State which is subject to levy under execution, or which in supplemental proceedings in aid of execution is subject to the satisfaction of a judgment for money, is subject to attachment under the conditions prescribed by this Article."

Thus, to determine what property may be levied on, the deputy must look at the law of executions and supplemental proceedings. G.S. 1-315 lists the types of property subject to levy and sale under execution.

Officer serving Orders of Attachment may levy on personal property or place a lien on real property.

NOTE: Show slide, "Examples of Property Subject to Attachment."

The seizure of property under a court order is called "levy." To levy on property requires collecting, gathering, seizing and taking up of property. The purpose of a "levy" is to obtain money by the seizure and sale of property. The rights of the parties in the property are established at the time of the levy.

Merely levying on property will not affect the defendant's right of ownership or title in the property. The defendant retains title to the property until after a sale is held under legal authority. The levy on the property gives a plaintiff a


50

Civil Process

lien or encumbrance on the property which can be enforced by a sale.

The duty of the sheriff under an order of attachment is to execute the order within the time allowed. An order of attachment is executed by taking property of the defendant into the actual legal custody of the officer. To make a valid levy, the actions of the officer must put the property out of the control of the defendant. Improper levies will not affect the property in any way and will also result in liability for the officer who attempted to make a valid levy.

G.S. 1-440.18 gives the requirements for making a valid levy on personal property found in the defendant's possession. Personal property must be physically seized and taken into the possession of the levying officer. Wherever possible, personal property should be removed to a safe storage area to perfect the levy. If the property cannot be removed without substantial injury, expense or material damage, the levying officer must find another method of exercising control over the seized property. Usually property of this nature will be valuable enough to justify appointing a keeper or posting a guard to protect the property. Property which has been levied on should never be left in the custody of the defendant. The deputy has failed to properly assert control over property left in the custody of the defendant. There is no valid levy in such cases.

An order of attachment gives the sheriff a special right of possession in any property seized under a valid order. This right of possession only authorizes the sheriff to keep the property safe in his custody until a court order is issued authorizing some other action. The special right of possession is even more limited when real property is involved. The sheriff has the right to seize the property and hold it until an inventory can be completed. There is no right to maintain possession of real property and it is not necessary to protect the levy.

G.S. 1-440.17 gives the requirements for a valid levy on real property. Real property levies are made by endorsing on the order of attachment or attaching a statement showing that the sheriff has levied upon whatever right, title, or interest the defendant owns in described real property. The statement must also describe the real property in sufficient detail to identify it clearly. In addition to making a return, the sheriff must also certify his levy and the names of the parties to the clerk of the superior court of the county in


51

Civil Process

which the land lies. Under this statute, the sheriff does not even have to see the property to make a valid levy.

The differences in the methods of levy are a result of the nature of the property involved. Personal property is easily movable and usually has a personal nature. Some examples are: motor vehicles, animals or livestock, jewelry, furniture, lumber, merchandise, shares of stock, boats or ships and mobile homes. Any type of property which is not real property is considered to be personal property. As you can see, if these items are not seized, they will probably be unavailable when needed to satisfy a judgment. The defendant could still transfer title before a judicial sale; however, anyone who purchased from him would have actual notice of the plaintiff's claim when he asked for possession.

Real property, generally, is not movable. Houses and land are the clearest examples of real property. There are other types of property which are considered to be real property. Anything which has been erected or is growing on the land is real property. Items intended to be permanently attached to the land are real property when attached. Some examples of real property are: houses, barns, buildings, fences, wells, trees, crops and permanent fixtures.

The sheriff has the discretion to determine how much property should be levied on to satisfy the amount stated on the order of attachment for the plaintiff's claim. Enough property should be seized to satisfy that amount plus all fees and costs. Keep in mind that sheriff's sales ordinarily bring only a fraction of the actual value of the property when determining the property on which you will levy. If your original levy is insufficient, additional levies may be made as long as the time for return has not expired. If a return has been made, the court may issue an alias or pluries order of attachment to authorize the seizure of additional property.

Where more than one attachment has been received against the same defendant, the sheriff should execute and levy them in the following orders:

G.S. 1-440.33(b) - for real property G.S. 1-440.33(e) - simultaneous delivery

c) Care of attached property

The sheriff has a legal responsibility to provide for the


52

Civil Process

proper care and custody of any personal property he seizes under an order of attachment. He may demand in advance the necessary expenses for this care and custody and may demand additional expenses as they are needed. If the plaintiff refuses to pay these expenses, the sheriff would be justified in returning the order of attachment unexecuted. See G.S. 1-440.35.

Plaintiffs often find it hard to comprehend that the sheriff is not working for them when he levies on property under their order of attachment. The attachment is a court order and the sheriff is a court officer. He must comply exactly with the court order or be subject to liability. He cannot release the property back to the defendant just because the plaintiff feels the costs are too much. The plaintiff must obtain a court order modifying or dissolving the order before the sheriff can legally release the property.

d) Sheriff's return

Under G.S. 162-14, the sheriff has a duty to execute and make due return of writs and orders delivered to him. How well an order is executed is unimportant unless the order is returned to the court. The sheriff's return is necessary to protect the validity of the levy. The return advises the court that a levy was made on a certain date and time on described property.

Note: Again, the deputy should answer the following questions, who, what, where, how, and when.

To make a valid return, a deputy must perform two actions: 1) write out on the order exactly what the officer did, listing the property levied on and the dates of the levies; and, 2) actual delivery of the original of the writ or order to the clerk of superior court of the issuing county. If no levy was made, the return must state the reasons for the failure to levy. See G.S. 1-440.16.

The return must contain the following information to be valid:

NOTE: Show slide, "Requirements for Valid Return on Order of Attachment."

(1) The date the order was received by the sheriff's department.


53

Civil Process

(2) The date the defendant was served, if he could be served.

(3) A clear and particular description of the property under levy.

(4) The date or dates of the levy (levies) on the property.

(5) The date the writ or order was returned to the clerk's office.

(6) The name of the sheriff and the county in which the order was executed.

(7) The signature of the deputy sheriff who executed the writ or order and is making the return.

(8) If real property is attached, the return should give the Judgment Docket Book and Page where the Certificate of Levy was filed.

****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.

2. Garnishment

Garnishment is a very specialized remedy. An order of garnishment may only be issued in actions where an attachment has been issued. The purposes of the garnishment are to discover and subject to attachment tangible personal property of the defendant not in his possession and any indebtedness or other intangible personal property belonging to the defendant.

NOTE: Show slide, "Garnishment."

In North Carolina, garnishing people’s wages is not legal except for child support and taxes. This portion of the lesson plan discusses garnishing property.

A garnishment is a warning to a third person who has possession of property owned by a defendant or who owes the defendant a debt not to pay the money or deliver the property to the defendant. The third person is ordered to appear before the court and show what property of the defendant's he possesses.


54

Civil Process

Attachment can only apply a claim on property in the possession of the defendant and owned by him. Garnishment will reach property owned by the defendant but possessed or held by third persons. Attachment requires either seizure and custody or asserting control over the property. Garnishment does not require seizure or control. The property will remain in the possession of the third person until the scheduled hearing. If the party named as "garnishee" pays the defendant or delivers the property to the defendant, he may be held liable to pay to the court either the full amount due on the judgment awarded or the value of the property, whichever is less.

NOTE: Show slide, "Garnishee."

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.

a) Issuance of garnishment

A garnishment proceeding is begun just like an attachment. A summons to garnishee is issued either at the same time an order of attachment was issued or at any time after the issuance of the attachment but prior to final judgment in the principal action. Summons to Garnishees must be issued to each person designated by the plaintiff. On the back of the Summons to Garnishee is a Notice of Levy. This notice must be filled out and signed by the sheriff or his deputy at the time the Summons to Garnishee is served. (Refer to AOC-CV-302)

b) Levy of garnishment

A levy under an order of attachment is usually carried out by seizing and maintaining custody of the property in question.

Note: Levy on real property is not made by taking possession of property except for purposes of inventory.

Levy of a garnishment is governed by G.S. 1-440.25. These levies are very simple to carry out. Physical seizure and custody of the property in question is not required. A levy in garnishment is made by delivering to the garnishee copies of each of the following:


55

Civil Process

(1) The order of attachment,

(2) The summons to garnishee, and

(3) The notice of levy (found on the back of summons to garnishee).

For corporate garnishees, levy must be made by delivering copies of the above three processes to the president (or other head), secretary, cashier, treasurer, director, managing agent or local agent of the corporation. A local agent is anyone receiving or collecting money on behalf of the corporation.

c) Return of garnishment

To properly return the processes in a garnishment, the sheriff must complete the return sections on both the order of attachment and the Summons to Garnishee/Notice of Levy. An order of attachment should be served, levied, and returned within ten (10) days of the issuance date. The garnishment processes must be completed within the same time period. If the garnishee cannot be located within the allotted time, the sheriff must return the processes to the clerk of the issuing court and give the reasons for the failure to serve and levy.

3. Claim and delivery

Claim and delivery is a process which involves two different processes—a Notice of Hearing and an Order of Seizure. Each process is served differently, at different time during a civil action.

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 obtain 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. 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.

a) Issuance of order of seizure in claim and delivery


56

Civil Process

To claim delivery of property, the plaintiff must meet certain statutory requirements. The first requirement is the filing of an affidavit requesting a hearing under G.S. 1-473. The affidavit must contain statements showing: (Refer to AOC-CV-200)

(1) That the plaintiff owns or has a lawful right of possession to the property claimed;

(2) A particular description of the property claimed;

(3) That the defendant is wrongfully detaining the property;

(4) The cause of the wrongful detention, if known;

(5) That the property has not been taken for taxes, assessments, fines, execution, or attachment (If the property was seized under one of these statutes, the plaintiff must show it was exempt from seizure.);

(6) The actual value of the property.

Only persons who have a right of ownership or possession can obtain this remedy. The action for possession must be brought against the actual party in possession of property to be effective. Claim and delivery will not reach property in the hands of third persons unless they are shown to be agents of the defendant, such as an employee or the defendant's wife or children.

After the plaintiff files his affidavit, the clerk issues a Notice of Hearing to be served on the defendant. 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. This notice is the first legal warning the defendant has of the action. (Refer to AOC-CV-201)

The notice must be served by one of the methods authorized for the service of a civil summons. Contrary to the other processes, a deputy should read to the person served the "warning to defendant" found at the bottom of the notice of hearing. It may be a good policy to read this warning to the defendant; the defendant cannot later claim he was not notified if he damages or disposes of the property described.

Upon receiving a Notice of Hearing, the sheriff or his deputy should immediately check the date set for the hearing. Remember service must be made at least ten (10)


57

Civil Process

days prior to the hearing date. By checking this date, the deputy will know when the notice must be returned to the issuing court. Deputies should not take the responsibility on themselves to change the hearing dates even with a verbal or written authorization from the clerk. This responsibility is one of the duties of the clerk of superior court and should be performed by his office.

After the hearing has been held (if the plaintiff is given temporary possession), the plaintiff must give a written undertaking (bond). The undertaking must be payable to the defendant and signed by one or more sureties binding them to pay an amount equal to double the value of the property to be seized. The sureties must be approved by the sheriff, not the clerk. If the sureties are not sufficient, the sheriff becomes liable as a surety. The sheriff should always personally review the plaintiff's undertaking and approve the sureties if possible. The purpose for the undertaking is to protect the defendant by requiring the plaintiff to give a secured promise that the property will be returned unharmed if the defendant wins a judgment. The defendant is also entitled to recover any damages he may have from this undertaking. Until this undertaking is given and approved, the sheriff cannot execute the order of seizure.

b) Order of seizure in claim and delivery

The most important part of the remedy of claim and delivery is the command to seize property better known as the Order of Seizure in Claim and Delivery. (Refer to AOC-CV-203)

The first duty a deputy has upon receiving the order is to thoroughly investigate the sureties named on the Order of Seizure. If the sheriff approves the sureties then the deputy should proceed to promptly take the described property into his custody. The property to be seized will be described in the affidavit. A copy of the affidavit must be attached to the order of seizure unless the property is described on the face of the order of seizure. The property description given must be sufficient to distinguish and identify the property from any other property of like kind possessed by the defendant. If the property cannot be identified from the description given, the sheriff should not seize the property. Sometimes the defendant will identify the property by admitting that this property is the plaintiff's. Do not rely on an identification by the plaintiff unless s he demonstrates a personal knowledge of the property. (Finance companies usually never seethe


58

Civil Process

property before it is pledged as security so how can they identify it.) However, plaintiffs who sell this type of property can help with the identification.

To properly execute an order of seizure in claim and delivery, the sheriff must take the property described and retain it in his custody. The property in question may only be seized if it is in the possession of the person named on the order or his agent. The property could not be legally taken from a third party who has no notice of the action or possesses an interest in the property superior to or separate from the plaintiff's.

The only type of property which may be seized in claim and delivery is personal property. Personal property is property of a personal or easily movable nature. Some examples of personal property are: motor vehicles, animals, harvested crops, cut timber, boats or ships, clothing, furniture, jewelry, merchandise, shares of corporate stock, bank accounts, patents, copyrights, books and other property of like kind.

c) Time limits in claim and delivery

There is no stated time limit given for executing an order of seizure after issuance; however, certain orders described below expire 60 days after issuance.

NOTE: Show slide, "Time Limits in Claim and Delivery."

"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, . . ." G.S. 1-476 [Emphasis added].

"Forthwith" is defined by Black's Law Dictionary as requiring immediate action, to act without delay, or to act promptly and with reasonable dispatch. The order thus must be executed within a reasonable time under the circumstances of the case. This means as soon as possible or at the first opportunity. Do not delay on these orders. They are most often issued to prevent the defendant from damaging or disposing of the property described.

However, when delivery of property is claimed from a person who has defaulted on payments under a conditional sales contract, a purchase money security agreement or on a loan


59

Civil Process

secured by personal property, the order of seizure expires 60 days after it is issued. This means that it is no longer enforceable by seizure of property and should be returned unexecuted to the clerk of the issuing court. G.S. 1-474(b).

The defendant does not have to be served with a copy oft he order of seizure before the deputy takes the described property. But, he must be served with copies of the affidavit, order of seizure and undertaking as soon as possible. The language of the statute requires service "without delay." The service must be made either by delivering copies to the defendant if he can be found or to his agent, if the property was in his possession. If service cannot be made by either of these methods, copies of the above-named processes may be left at the usual place of abode of either the defendant or his agent with some person of suitable age and discretion. See G.S. 1-476.

The importance of serving these copies as soon as possible is illustrated by N.C. Gen. Stat. 1-477. This statute states that the defendant has three days after the service of a copy of the affidavit and undertaking to notify the sheriff he excepts (objects) to the sufficiency of the sureties. Since the sheriff is responsible for the sufficiency of the sureties, he will remain liable for the sureties until three days have passed after the defendant was served with the affidavit and undertaking. If the defendant objects to the sureties, he can regain possession of the property.

If the defendant objects to the sureties, he has two choices:

(1) Challenge sufficiency of sureties who then must justify, or

(2) Put up bond to have property returned pending outcome of lawsuit.

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. The sheriff is responsible for the sufficiency of the sureties on a defendant's undertaking and may retain the property until they satisfy the court on their


60

Civil Process

sufficiency. G.S. 1-478 and 1-479.

****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.

d) Care and seizure of property

Claim and delivery is the only prejudgment remedy which specifically authorizes the use of force to execute the order of seizure. G.S. 1-480 states:

NOTE: Show slide, "G.S. 1-480."

1-480. Property concealed in buildings. If the property, or any part of it, is concealed in a building or enclosure, the sheriff shall publicly demand its delivery. If it is not delivered he must cause the building or enclosure to be broken open, and take the property into his possession. If necessary, he may call to his aid the power of his county, and if the property is upon the person the sheriff or other officer may seize the person, and search for and take it.

Under the common law, a sheriff was prohibited from breaking and/or entering a dwelling forcibly to serve or execute any civil process. This statute created an exception to the general prohibition against forcible entry of a dwelling which is limited to claim and delivery only. However, if force is necessary to execute the order of seizure, the sheriff would still only be authorized to use the amount of force reasonably necessary to obtain possession of the property. Deadly force can never be used except in self-defense.

Before breaking into a building, the deputy should have reasonable grounds to believe that the property described is on the premises. The property must be concealed in some type of building or enclosure. The concealment intended here is merely location not that the property be hidden. If the property is located inside a house or fence and delivery is refused, this statute authorizes breaking into the enclosure to take possession of the property. The sheriff may call the power of the county to his aid to execute this order.

If the property is concealed on the person of a named


61

Civil Process

individual, the sheriff or his deputy may seize the person and search for and take the property.

The statute requires the sheriff to publicly demand the delivery of the property. If the property is not delivered, the sheriff must cause the building or enclosure to be broken open and take the property into his possession. This is the only authorization to break and enter to execute a civil process found in the General Statutes.

After seizing the property, the sheriff must keep the property in a secure place for three days after the service of the affidavit, undertaking and order of seizure on the defendant. The property must be properly cared for. If the property is damaged while in the custody of the sheriff, the sheriff could be liable if he failed to provide ordinary care and attention. The sheriff must receive his fees for taking the property and his necessary expenses for keeping it before he can be required to deliver the property to the person entitled thereto.

The plaintiff cannot legally obtain possession of the property and then dismiss his action. If the action is dismissed before final judgment, the defendant is entitled to recover possession of the seized property and may also recover damages from the plaintiff for the wrongful seizure.

The sheriff is not the agent of any of the parties involved. He is an officer of the court bound by law to enforce the orders of the court. He must carry out the court order in such a way that the least amount of harm is done to each of the parties involved.

e) Summary

Claim and delivery is a unique process in the laws of North Carolina. It is the only civil process which specifically requires the sheriff to break and enter to carry out a seizure of personal property. The sheriff should be extremely careful in executing these orders because of the importance of his duties in seizing the property and approving the bonds.

E. Postjudgment Remedies

Postjudgment remedies are the remedies which are available only after a decision or final judgment has been reached in a civil


62

Civil Process

action. They are the courts' method of enforcing its judgment or decision. Without them, there would be no way to force an uncooperative defendant to comply with the court's decision. To execute a judgment is to complete, fulfill or carry it into operation and effect. The most common postjudgment remedy is called "execution."

If the debtor has filed for bankruptcy, the deputy should not proceed with levy or other attempts to collect on the writ of execution. The deputy should return the writ to the clerk unsatisfied, stating in the return that debtor has filed for bankruptcy. The deputy may also wish to contact the plaintiff to advise him of this circumstance. Either the deputy or the plaintiff can contact the bankruptcy court by phone to confirm the filing status of the debtor (in the event there is doubt about whether debtor is being truthful - occasionally debtors will mislead creditors and deputies about bankruptcy filings).

If the deputy has already levied on property before discovering the bankruptcy filing, the deputy should “unlevy” (return) any property so taken.

1. Types of executions

NOTE: Show slide, "Types of Executions."

There are three basic types of executions available in our courts. a) Executions Against Property

Executions Against the Property are just called “executions” and are for satisfaction of a money judgment. The sheriff is to seize personal property and encumber real property to sell to get the money for the judgment. That is why they are called executions against the property.

b) Executions Against the Person

Executions Against the Person is a “civil order for arrest” and is very specific in nature and rare. Officers serving these may look at G.S. 303 and 313 for guidelines for service. They carry the weight of a misdemeanor warrant and are valid for 90 days since they are executions.


63

Civil Process

c) Executions for Delivery of Specific Property

Executions for Delivery of Specific Property are called “Writs of Possession for Real Property” and “Writs of Possession for Personal Property.” Both of these require the sheriff to take property away from a judgment debtor (defendant) and give it back to a judgment creditor (plaintiff).

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. Executions for Delivery of Specific Property are the second most frequently issued type of execution. These executions are better known as writs of possession for real or personal property and summary ejectments. They are carried out by seizing certain specifically described property and delivering it to a named person. The third type of execution is very rare. An execution against the person requires the sheriff to arrest the judgment debtor and hold him in custody until he pays the execution or complies with other statutory requirements for release. G.S. 1-303 and 1-313.

Most judgments are enforced by an execution. Judgments which require performance of some act other than the payment of money or delivery of specific property are enforced by serving a certified copy of the judgment upon the person or officer against whom it was given. If the person refuses to obey the judgment, he may be punished under the contempt of court provisions. See G.S. 1-302.

2. Issuance of execution

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. [McKethan v. McNeill, 74 N.C. 663 (1876)]. Under G.S. 1-305, the clerk of superior court must issue executions on all unsatisfied judgments rendered in his court when requested by the person entitled to recovery and upon payment of the necessary fees. No execution is valid without the signature of the clerk or the deputy or assistant clerk. To be considered issued, the execution must be signed by the clerk and delivered to the sheriff or some person to give to the sheriff. Executions which are to be sent to another county must be sealed with the official seal of the issuing court before they may be enforced. Before an execution can be issued to another county, the judgment must be docketed in the county to which the execution will be issued. Executions may be issued at the


64

Civil Process

same time to as many different counties as necessary.

Only the court where the judgment was rendered has the authority to issue an execution to enforce a judgment.

Executions must be returned to the issuing court by the sheriff. Executions for the delivery of specific property must be issued to the sheriff of the county where the property is located. Executions cannot be issued more than ten years after the date of the rendering of the judgment.

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 .Executions may be issued without service of the notice when the debtor's exemptions have already been designated or the clerk determines that the exemptions do not apply to this claim.

3. Contents of an execution

a) Before proceeding to levy on property under an execution, the sheriff or his deputy must make sure that the order is valid and enforceable in his county. Upon receiving an execution the sheriff should check the execution for the statutorily required contents and the other steps required for validity.

NOTE: Show slide, "Checklist for Validity of Executions." (Refer to form AOC-CV-400, "Writ of Execution")

b) CHECKLIST FOR VALIDITY OF EXECUTIONS

A deputy sheriff should check all executions for the following items before proceeding to enforce the execution by levy:

(1) Check for the name of the county from which the execution was issued.

(a) Executions issued from other counties must be directed to the sheriff or coroner of your county. (The same thing is true of executions issued by your clerk.) G.S.1-308, 1-313.


65

Civil Process

(b) Executions from other counties must be sealed with the seal of the issuing court. G.S. 1-303.

(c) Executions must be issued by the clerk of the court where the judgment was decided. G.S. 1-305, 1-307.

(d) A transcript of the judgment must be docketed in the county where the execution is to be enforced. G.S. 1-308.

(2) Check for the date of issuance. (G.S. 1-310)

(a) No execution may be issued until ten (10) days have passed after the entry of the judgment.

(b) The execution must be returned to the issuing court within ninety (90) days of the date of issuance. G.S. 1-307, 1-310.

(c) No execution may be issued more than ten (10) years after the date of the rendition of the judgment. G.S. 1-306.

(3) Check for the signature of the issuing official which must be the clerk, deputy clerk or assistant clerk of superior court of the issuing county. G.S. 1-303, 1-313.

(4) The execution must refer to the judgment and give the following information:

(a) The name of the county where the judgment roll or transcript is filed;

(b) The names of the parties;

(c) The amount of the judgment;

(d) The amount actually due on the judgment(or sufficient information to compute the amount actually due);

(e) The date and time of the docketing of the judgment in the county to which the execution is issued.

4. Levy on property

The purposes to be served by the issuing of an execution are


66

Civil Process

determined by the type of execution issued. An execution against property (form entitled "Execution") requires the sheriff to satisfy the judgment by levying on and selling the personal and/or real property of the judgment debtor. An execution against the person (Body Execution) requires the sheriff to arrest the judgment debtor and commit him/her to jail until he/she pays the judgment or is released or discharged according to law. The execution for delivery of specific property(Writ of Possessions) requires the sheriff to seize certain specifically described property and deliver possession to the party named by the court. This execution may also require the sheriff to satisfy any costs.

a) Property subject to levy (for money executions)

Any execution to satisfy a money amount on a judgment will require a levy on and sale of property. To make a valid levy on property, the sheriff and his deputies must know what property is subject to levy and how to protect their levy against other claims. The laws of North Carolina specify certain categories of property which may be levied on under an execution and they also exempt certain property from execution.

G.S. 1-315 lists the seven categories of property which are generally subject to levy and sale under execution. Officers may levy on tangible or intangible personal property or encumber real property.

NOTE: Show slide, "Property Subject to Sale Under Execution."

These categories include items such as: houses, land, mobile homes, furniture, jewelry, household appliances, books, clothing, tools, boats, ships, farm equipment, domestic and farm animals, farm produce, lumber or cut timber, industrial or business machinery, corporate stocks and bonds, real estate leases, negotiable instruments and many more types of property.

To protect residents of this State from zealous creditors who might take everything a debtor had, the legislature created certain categories and amounts of property a debtor may keep for the benefit of himself and his family. They are found in G.S. IC-1601:

Exemptions are claimed by the sheriff serving a “Notice of


67

Civil Process

rights to have exemptions designated” on the defendant. The defendant must fill out these papers, claiming exempt what property he has that fits into one of the legal categories. When the execution is issued, the Clerk of Superior Court will notify the sheriff through an order attached to the Execution as to what property is claimed that the sheriff cannot levy or lien.

There are two types of exemptions—Constitutional and Statutory. Examples of statutory exemptions are listed below.

NOTE: Show slide, "Property Exempt from Execution."

Property AmountReal or Personal Property Used as a

residence$10,000.00

One Motor Vehicle 1,500.00Household Goods and Furnishings

held primarily for personal, family or household use

3,500.00

Additional amount of $750.00 for each dependent up to four

3,000.00

Tools of the Trade 750.00Life Insurance as provided in Art. X,

Sect. 5 of N.C. Const.Unlimited

Professionally Prescribed Health Aids UnlimitedCompensation for Personal Injury or

Wrongful Death of person supporting debtor

If no residence claimed, may claim

Unlimited

3,500.00miscellaneous exemption in any property

IRA's Unlimited

However, there are certain types of cases which do not allow any exemptions. Some examples are:

NOTE: Show slide, "Claims Allowing No Exemptions."

Claims of United States or its agencies as provided by Federal law

State or local government claims for taxes, appearance bonds or fiduciary bonds


68

Civil Process

Laborer's liens on specific property affected

Mechanic's liens on premises affected

Contractual security interests in the specific property affected, except for nonpurchase, nonpossessory money security interests in debtor's household goods.

Statutory liens on property affected

Child support, alimony or equitable distribution award orders

b) Performing a levy

The first step in the actual levy on property under an execution is to determine if the debtor has any property. The next step is to decide what, if any, of his property will be subject to levy and sale. Only property owned by the judgment debtor may be levied on and sold under the execution.

The purpose of the levy is to appropriate certain property to satisfy the court order. The levy creates alien or claim on the property effective on the date the levy is made on personal property. Different types of property require different methods of levy. The sheriff must attempt to locate and levy on any persona property available before proceeding against real property. [See G.S. 1-313(1)]

5. Sale of property for money executions

After completing the levy on property, the sheriff begins his preparations to hold the execution sale. An execution sale is defined as:

NOTE: Show slide, "Execution Sale."

A sale of property by a sheriff or other officer made pursuant to an execution.

The sheriff is given the authority to hold this sale by the North Carolina General Statutes and must follow the procedures set in the statutes exactly. If the sheriff is unsure how to proceed in a given situation, the clerk of superior court who issued the execution has authority to determine the procedural details to be followed. G.S. 1-339.42.


69

Civil Process

a) Preparing for sale

The first step in preparing to hold an execution sale is to begin advertising. G.S. 1-339.52 and 1-339.53 give the requirements for advertisement of an execution sale. Real property sales must be advertised by posting a notice of sale at the courthouse door and by publishing the notice in a newspaper for two consecutive weeks. The defendant must also be served a copy of the notice at least 10 days before the sale for real property sales only. Notices of sale for personal property are simply posted at the courthouse door at least ten (10) days preceding the date of sale. A sale which is not properly advertised following the statutory requirements is void and will not transfer title to any property.

The notice of sale must be prepared by the sheriff or his agent and must contain the following:

NOTE: Show slide, "Notice of Sale."

(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.

Execution sales may be scheduled or held on any day of the week except Sunday. G.S. 1-339.60 requires that sales be held between the hours of 10:00 a.m. and 4:00 p.m. Execution sales cannot begin before 10:00 a.m. or continue after 4:00 p.m. The sale must begin within one hour of the scheduled time unless it is delayed by previous sales held at the same place. Sales which cannot be completed within the time limits set must be continued to the following day (except Sundays) unless they fall within the exception set by G.S. 1-339.60(c).

All real property sales must be held at the courthouse


70

Civil Process

door of the county where the land is located. Personal property sales must be held at the location of the property.

b) Conduct of sale

The sheriff or his deputy must conduct the sale in the manner and by a method most likely to bring the best price possible. Execution sales rarely, if ever, result in the property being sold for its full market value. This will not affect the validity of the sale. The property under levy may be sold in separate lots or parcels or as a unit depending on which will bring the highest price. he sheriff cannot sell more property than is reasonably necessary to satisfy the judgment plus the costs and expenses of the levy and sale.

If the judgment debtor wishes to halt the sale, he must pay the sheriff the full amount due on the execution and judgment. This amount includes: the amount of the judgment and costs, the sheriff's fees, commissions and expenses incurred on account of the sale which would include expenses of levy and storage.

All sales under execution must be made for cash or its equivalent. A certified check or money order may be accepted as cash but a personal check is accepted totally at the risk of the sheriff.

The sale should be conducted like an auction with the last and highest bidder receiving the property. An execution sale can only affect whatever right, title, or interest the judgment debtor had in the property at the time this claim attached. As a result, these sales are made subject to all prior liens and encumbrances on the property. The prospective buyer is responsible for checking to determine if there are any prior liens. Any proceeds obtained at the sale must be applied to the satisfaction of the claim under which the property was sold and the expenses of the levy and sale. The sheriff or deputy conducting the sale must announce at the beginning of the sale that the property will be sold subject to any existing prior liens and encumbrances. Questions about the payment of the proceeds of the sale must be resolved by the clerk.

Personal property sales are final upon the payment of the purchase price and the receipt of the bill of sale and property. Real property sales must remain open for a period


71

Civil Process

of ten (10) days to allow for the filing of an upset bid. If an upset bid is filed, the property must be re-advertised and resold. There can be more than one resale.

c) After the sale

After completing the sale, the deputy must file a written report of sale with the clerk of the issuing court within five (5) days after the date of sale. Each report of sale must contain the following information:

NOTE: Show slide, "Report of Sale."

1-339.63. Report of sale.

(1) The sheriff shall, within five days after the date of the sale, file a report thereof with the clerk of the superior court.

(2) The report shall be signed and shall show

(a) The title of the action or proceeding;

(b) The authority under which the sheriff acted;

(c) The date, hour and place of the sale;

(d) A description of real property sold, by reference or otherwise, sufficient to identify it, and, if sold in parts, a description of each part so sold;

(e) A description of personal property sold, sufficient to indicate the nature and quantity of the property sold to each purchaser;

(f) The name or names of the person or persons to whom the property was sold;

(g) The price at which the property, or each part thereof, was sold and that such price was the highest bid therefore; and

(h) The date of the report.

Real property sales cannot be finalized until the clerk confirms the sale after the upset bid period has passed. After receiving the confirmation of sale, the sheriff shall prepare a


72

Civil Process

duly executed deed and tender (offer) it to the purchaser. Upon payment of the purchase price, the deed shall be delivered to the purchaser.

NOTE: Be sure to remind students that this is a mere summary of procedures on an execution sale. Before actually conducting a sale, the deputy should read very carefully G.S. 1-339.41 to 1-339.71 and any other reference materials available such as Civil Process Handbook for Sheriffs and/or Handling Writs of Execution cited in the Academic Checklist.

d) Writs of possession for real or personal property

Some executions are issued primarily to obtain or recover possession of real or personal property. This type of execution is issued under several different names:

Writ of Possession for Real PropertySummary Ejectment Writ of Possession for Personal Property

The basic purpose of each of these writs is the same—the obtaining of possession of property by a named individual. If the property to be taken is real property, the sheriff must remove the person named in order to deliver possession to the person entitled. If necessary, the sheriff has the power to break and enter the premises to evict the tenant forcibly. This is the only post-judgment remedy by common law allowing use of force.

Writs of possession issued in summary ejectment cases must be enforced through procedures set out in G.S.42-36.2. These procedures are required only in summary ejectment (eviction) cases.

NOTE: Show slide, "Procedures to Enforce Writs of Possession in Summary Ejectment Actions."

The deputy must comply with the following procedures:

(1) 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.

(2) The sheriff must give notice of the eviction. This notice gives the tenant the approximate date and time the


73

Civil Process

sheriff will be there with the landlord to remove the tenant and turn the property back over to the landlord. This notice is not issued by the Clerk of Superior Court. It is sent out by the sheriff’s office. It may be served by one of the below methods.

(a) By delivering a copy of the notice to the tenant or his authorized agent at least two (2) days before the time stated in the notice for the removal.

(b) By leaving copies of the notice at the tenant's dwelling or usual place of abode with a person of suitable age and discretion who resides there at least two (2) days before the time stated in the notice for the removal.

(c) By mailing a copy of the notice by first class mail to the tenant at his last known address at least five (5) days before the time stated in the notice for the removal.

(3) No one except the tenant or his agents may remove the property prior to the date set in the notice.

(4) Serving the writ of possession for real property

After giving the required notice, the sheriff must remove the tenant's property unless one of the following events occur.

(a) The landlord signs a statement saying that the tenant's property can remain on the premises, in which case the sheriff shall simply lock the premises; or

(b) The landlord signs a statement saying that he does not want to eject the tenant because the tenant has paid all court costs charged to him and has satisfied his indebtedness to the landlord; or

(c) The sheriff requires the landlord to advance the cost of delivering the property to a storage warehouse plus the cost of one month's storage and the landlord refuses.

If any of the above three events occurs, the sheriff must return the writ unexecuted with a notation of the reason and attach a copy of any statement given.


74

Civil Process

Although the statute (42-36.2)says so, the writ has been served.

(5) After executing the writ, the sheriff must make a return to the issuing court immediately stating what action was taken.

(6) Writ of possession for personal property

A writ of possession for personal property authorizes the sheriff to seize personal property and deliver it to the person entitled. The sheriff, however, does not have the authority or the power to break and enter a dwelling to execute a writ of possession for personal property. If the defendant is given notice of the writ and refuses to deliver possession of the personal property, the sheriff cannot forcibly seize possession. "In the absence of some statutory provision to the contrary, the common law prohibition against the use of force to execute civil process on personal property applies." Red House Furniture Company v. Annie Smith, 310 N.C. 530 313 S.E.2d 569 (N.C. 1984).

6. Returns of executions

Each execution issued must include on its face the date it was issued by the clerk. This date is extremely important for the deputy enforcing the execution because from it he determines his time limits. 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. The deputy can return the execution at any time before the ninety day period has expired but he must make a return. Legally, there are no excuses recognized for failing to return a writ or process within the time allowed.

Once made, the return becomes part of the official court record. In making his return, the deputy should state exactly what actions he took to enforce the court order. The clerk must credit the judgment with any amount which was collected on the execution.

If the plaintiff or the court recalls the execution, the sheriff should simply make his return stating that the execution is being returned at the request of the party or the court.


75

Civil Process

The sheriff and his deputy are strictly liable for the contents of the return. Any word or statement in the return which is untrue may make the return false. Making a false return may subject the sheriff and his deputy to both civil and criminal liabilities. Knowledge or intent to make a false return are unimportant. If the return is false, regardless of the reason, the sheriff is liable.

F. Repossessions

It is a common occurrence for a law enforcement officer to receive a call about a vehicle theft in progress, or about two people arguing over a vehicle, and the call turns out to be a repossession. Repossessions in North Carolina which do not go through the court system are legal.

G.S. 25-9-503. Secured party’s right to take possession after default. Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of peace or may proceed by action. If the security agreement so provides, the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises under G.S. 25.9.504 (to make arrangements to sell it).

Default means the person buying the property has stopped paying for it. Secured party is the person the property was either purchased from or who loaned the money to purchase the property. Collateral is the property. Security agreement is the purchase or loan contract.

Very often when people sign contracts with banks or other loan institutions and don’t make the required payments the creditor may try to gain possession of the personal property back, without going through the court system. The form or paperwork a wrecker-driver or repossess or may have to take possession of the vehicle or other property is left up to the company initiating the repossession. It is not a court order, therefore law enforcement officials do not have the authority to assist, or hinder the action. Law enforcement’s role, of on scene, is to ensure peace.

It is not uncommon for law enforcement officials to speak to one or more parties at the scene to ensure peace is maintained. It is important to understand though, that law enforcement presence cannot be used as an intimidation factor to assist the completion of


76

Civil Process

there possession. And, law enforcement cannot act or comment in such a way as to slow, prevent or hinder a lawful action.

Note that the statute allows for things like booting of vehicles; requiring a boat to be loaded onto a trailer, or a motorcycle to be loaded onto a trailer; assembly of property pieces; or the repossess or may go in the yard of an owner to get property.

If there is a violation of breach of peace, the repossess or must take the action to court to regain possession of the property.

G. Eviction from Hotels/Motels

G.S. 72.1. Innkeepers must furnish accommodations; contracts for termination valid. Every innkeeper shall at all times provide suitable lodging accommodations for persons accepted as guests in his inn or hotel. A written statement setting forth the time period during which a guest may occupy an assigned room, signed, or initialed by the guest, shall be deemed a valid contract and at the expiration of such time period the lodger may be restrained from entering and any property of the guest may be removed by the innkeeper without liability, except for damages to or loss of such property attributable to its removal.

Occasionally, a hotel guest may refuse to leave the lodging. If law enforcement is called upon to intervene, the hotel employee or officer may restrain (verbally or otherwise) the guest from reentering the room; the hotel employee may go pack up the property of the guests and give the property to the guest; and the officer may assist the hotel employee in doing so.

There occasionally is question about the status of a piece of property—whether it falls in the category of a hotel where the guest may be evicted according to the innkeeper statute, or whether the property is a boarding house and the tenant must be evicted with a magistrate summons with a complaint in summary ejectment. This can easily be determined by how the business is licensed. Hotels, inns, motels and the like have to be licensed and each building the business uses for such purpose has to have its individual hotel license, clearly posted in its designated building. If the room in question is in a building without a hotel license, the room is generally classified as a boardinghouse room and the tenant must be evicted through court with a summary ejectment action. It is not uncommon to find some businesses with some of its buildings licensed as a hotel and some buildings unlicensed and classified as boarding house rooms.


77

Civil Process

H. Criminal Summons

Criminal summons are summons issued by a magistrate, clerk of superior court or judge which must be served in person on a defendant. It notifies a defendant that he will be tried for a felony, misdemeanor, or infraction for which he is being charged. The summons has a court date on it, and although a criminal summons is valid for 90 days, a copy of the summons has to be served on the defendant before the court date. It may be served by any law enforcement officer having authority and territorial jurisdiction to make an arrest for the offense charged. Or, a law enforcement CEO such as a sheriff or chief, may appoint a person to serve criminal summons, in person, at the law enforcement headquarters. A defendant may be contacted by phone or have a letter sent asking him to come to headquarters to accept the summons.

III.Conclusion

A. Summary

In this block of instruction we learned the importance of properly serving legal process, and how the manner of service may differ depending on the legal status of the defendant (natural person, corporation, partnership, and so on). We also learned special rules for service of process in summary ejectment actions, and how to correctly prepare a “return of service” in all cases. Service of subpoenas and enforcement of child custody and domestic violence protective orders were discussed in some detail. Finally, students were provided with a very basic overview of “executions” law.

NOTE: Show slide, “Training Objectives.”

B. Questions from Class

C. Closing Statement

Service of the civil court’s process is an extremely important function. While the law is somewhat complex, it should be remembered that civil process rarely calls for an “emergency response,” for which reason deputies have time to consult statutes, supervisors, senior officers, or agency legal advisors for guidance. Upon graduating from BLET, deputies should remember that civil process training opportunities - from “refresher” to advanced - are available through the North Carolina Justice Academy, Institute of Government, and the community college system.


78

Date post:	24-May-2018
Category:	Documents
Upload:	duongmien
View:	219 times
Download:	1 times

Microsoft Word - civil.DOC - Professional Protection Inc...

Documents