Bill Text: MS SB2133 | 2014 | Regular Session | Introduced
Bill Title: Justice court; revise service of process.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Failed) 2014-02-04 - Died In Committee [SB2133 Detail]
Download: Mississippi-2014-SB2133-Introduced.html
MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Judiciary, Division A
By: Senator(s) Wiggins, Tindell
Senate Bill 2133
AN ACT TO AMEND SECTION 11-9-105, MISSISSIPPI CODE OF 1972, TO CLARIFY THE FORM OF A SUMMONS IN A CIVIL PROCEEDING COMMENCED IN JUSTICE COURT; TO AMEND SECTION 11-9-107, MISSISSIPPI CODE OF 1972, TO REVISE SERVICE OF PROCESS IN JUSTICE COURT; TO AMEND SECTION 11-9-109, MISSISSIPPI CODE OF 1972, TO PROVIDE WHAT CONSTITUTES PRIMA FACIE EVIDENCE OF SERVICE OF PROCESS; TO AMEND SECTION 11-9-113, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR TAXING OF CERTAIN COURT COSTS AND 13-3-5, MISSISSIPPI CODE OF 1972, TO REVISE THE SERVICE OF PROCESS IN JUSTICE COURT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-9-105, Mississippi Code of 1972, is amended as follows:
11-9-105. (1)
Anyone desiring to * * *
commence a civil action in the justice court shall lodge with the clerk
of the justice court the evidence of debt, statement of account, or other
written statement of the cause of action. The clerk shall record all filings
and shall, as far as practicable, assign the cases to each justice court judge
in the county on a rotating basis to insure equal distribution of the cases
among the judges of the county; however, in all counties in which the
courtrooms provided by the county for use of the justice court judges are
located in more than one (1) place in the county, the clerk, in addition to
assigning cases to the judges on a rotating basis, may also assign a courtroom
for each case, such assignment may be made based upon the proximity of the
courtroom to the defendant's residence or place of business. The clerk shall
issue a summons for the defendant, returnable to the next term of the court of
the justice court judge to which the case is assigned, which shall include a
copy of the sworn declaration and shall be executed five (5) days before
the return day; but if the process be executed less than five (5) days before
the return day, the service shall be good to require the appearance of the
defendant at the term next succeeding the one to which it is returnable. Any
summons issued within five (5) days before a term of the court shall be made
returnable to the next succeeding term, unless a shorter day * * * is named, in pursuance of the
provision for a trial without delay in the case of nonresident or transient
defendants. When the case has been recorded and assigned and process issued,
the clerk shall, within two (2) working days, forward certified copies of all
documents pertaining to the case to the justice court judge to * * * whom the case is assigned for
further processing.
(2) The summons shall:
(a) Name the court and the parties;
(b) Be directed to the defendant;
(c) State the name and address of the plaintiff's attorney or, if unrepresented, of the plaintiff;
(d) State the date and time within which the defendant must appear and defend;
(e) Notify the defendant that a failure to appear and defend may result in a default judgment against the defendant for the relief demanded in the sworn declaration;
(f) Be signed by the clerk; and
(g) Bear the court's seal.
(3) Process may be served by any constable in the county without regard to the district, sub-district, ward or beat from which a constable is elected.
SECTION 2. Section 11-9-107, Mississippi Code of 1972, is amended as follows:
11-9-107. When any process
has not been returned by a constable within ten (10) working days after
issuance by the clerk of the justice court, upon written request by the
plaintiff or the plaintiff's attorney, the clerk shall * * * issue an alias summons and deliver it
with a copy of the sworn declaration to either the sheriff of * * * the county * * * for service of process by the sheriff * * * or a deputy, or to the
plaintiff or the plaintiff's attorney for service by any other person who is
not a party and who is at least eighteen years (18) old, as directed by the
plaintiff or plaintiff's attorney.
SECTION 3. Section 11-9-109, Mississippi Code of 1972, is amended as follows:
11-9-109. * * * The
return of the person who serves a summons is prima facie proof of service, or
the defendant may acknowledge service in writing on the summons. When service
by mail, posting, or both mail and posting, is required, the person who serves
the summons shall also file with the clerk a sworn affidavit that a copy of the
summons and sworn declaration have been served in accordance with Section 13-3-5.
SECTION 4. Section 11-9-113, Mississippi Code of 1972, is amended as follows:
11-9-113. (1) The
process * * * shall be returned by * * * the person serving it to the clerk
of the justice court, according to its command.
(2) (a) When a copy of the summons and sworn declaration are served, an amount not exceeding what is statutorily allowed by law for service by the constable may be taxed as recoverable costs in the action.
(b) When a copy of the summons and sworn declaration are served by certified mail, the amount of postage for the certified mail may be taxed as recoverable costs in the action.
(3) A constable will not be paid a fee for serving process if the time prescribed by Section 11-9-107 has passed and the process has been directed to another person who has served the process.
SECTION 5. Section 13-3-5, Mississippi Code of 1972, is amended as follows:
13-3-5. (1) The process to bring in defendants in all civil actions in all courts except justice court shall be a summons, the form, issuance, service, waiver, return, amendment and time limits of which shall be governed by the Mississippi Rules of Civil Procedure.
(2) The process to bring in defendants in all civil actions in justice court shall be a summons conforming to the provisions of Title 11, Chapter 9, Mississippi Code of 1972, which shall be served in one (1) of the following modes unless the defendant waives service of process in a manner consistent with that set forth in the Mississippi Rules of Civil Procedure:
(a) First.
Upon the defendant personally, if * * * found in the county, by handing * * * the defendant a true copy of the
process.
Second. If the
defendant cannot * * *
be found in the county, then by leaving a true copy of the process at * * * the defendant's usual place of abode * * * with * * * the defendant's spouse or some
other person of * * *
the defendant's family * * * of the age of sixteen (16) years * * * or older who is willing to receive * * * the copy.
Third. If the
defendant cannot * * *
be found, and if no person of * * * the defendant's family * * * of the age of sixteen (16) years or
older can be found at * * *his the defendant's usual place of abode who is willing
to receive * * *
the copy, then by posting a true copy of the process on a door of
the defendant's usual place of abode * * * and at the courthouse.
(b) If the second or third mode is used, a copy of the summons and the sworn declaration shall be mailed to the defendant by the person who served the process using first-class mail, postage prepaid, or by certified mail, return receipt requested.
(c) Service of process is deemed complete:
(i) In the case of actual service, upon the date indicated in the return;
(ii) In the case of first-class mail, upon the tenth day after mailing;
(iii) In the case of certified mail, upon the date of delivery as evidenced by the return receipt or by the returned envelope marked "refused"; or
(iv) In the case of waiver of service of process, when service of process is waived.
SECTION 6. This act shall take effect and be in force from and after July 1, 2014.
