9 AN ACT
concerning civil procedure for limited actions; relating to
small
10 claims procedure;
amending K.S.A. 58-227, 58-2542, 58-25,102, 60-
11 201, 60-213, 60-265,
60-304, 60-725, 60-2418, 60-3331 and 75-6103
12 and K.S.A. 1999 Supp.
19-4737, 20-302b, 20-310a, 20-362, 58-2565
13 and 60-2202 and
repealing the existing sections; also repealing K.S.A.
14 61-1601, 61-1603
through 61-1605, 61-1608, 61-1701 through 61-
15 1703, 61-1703a,
61-1704 through 61-1709, 61-1711 through 61-1719,
16 61-1721 through
61-1723, 61-1725a, 61-1726, 61-1728, 61-1801
17 through 61-1803,
61-1805 through 61-1807, 61-1901 through 61-1909,
18 61-2001 through
61-2012, 61-2101, 61-2102, 61-2104 through 61-
19 2109, 61-2201 through
61-2204, 61-2301 through 61-2304, 61-2306
20 through 61-2311,
61-2402 through 61-2405, 61-2502, 61-2503, 61-
21 2601 through 61-2605,
61-2701, 61-2702, 61-2705, 61-2706, 61-2708,
22 61-2710, 61-2712 and
61-2714 and K.S.A. 1999 Supp. 61-1710, 61-
23 1720, 61-1724,
61-1725, 61-1729, 61-2013, 61-2014, 61-2103, 61-2305,
24 61-2401, 61-2501,
61-2703, 61-2704, 61-2707, 61-2709 and 61-2713.
25
26 Be it enacted by the Legislature of the
State of Kansas:
27 New Section
1. This act shall be known and may be cited as the code
28 of civil procedure for limited actions.
29 New Sec.
2. (a) This act may be used to govern the procedure for a
30 civil lawsuit filed in the district court
which:
31 (1) Seeks
judgment for a debt which is not secured by a lien and
32 arises out of a contract for the providing
of goods, services or money,
33 without limitation as to the amount claimed
in the lawsuit;
34 (2) seeks
judgment for a debt which is secured by a lien and arises
35 out of a contract for the providing of
goods, services or money, where the
36 amount claimed in the lawsuit, not counting
costs, interest and fees, does
37 not exceed $25,000; or
38 (3) seeks
judgment where the claim does not arise out of a contract
39 and the amount claimed in the lawsuit, not
counting costs, interest and
40 fees, does not exceed $25,000.
41 (b) The following
types of lawsuits may not be filed under this act:
42 (1) Actions
against any officers of the state, or any subdivisions
43 thereof, for misconduct in office, except
as authorized by the Kansas tort
2
1 claims act, K.S.A. 75-6101 et
seq., and amendments thereto;
2 (2) actions
for specific performance of contracts for real estate;
3 (3) actions
in which title to real estate is sought to be recovered or
4 in which an interest in real estate,
either legal or equitable, is sought to
5 be established, except that nothing
in this paragraph shall be construed
6 as limiting the right to bring an
action for forcible detainer as provided
7 in article 23 of chapter 61 of the
Kansas Statutes Annotated, and amend-
8 ments thereto;
9 (4) actions
to foreclose real estate mortgages or to establish and fore-
10 close liens on real estate as provided in
article 11 of chapter 60 of the
11 Kansas Statutes Annotated, and amendments
thereto;
12 (5) actions for
divorce, separate maintenance or custody of minor
13 children;
14 (6) habeas
corpus;
15
(7) receiverships;
16 (8) change of
name;
17 (9) declaratory
judgments;
18 (10) mandamus and
quo warranto;
19
(11) injunctions;
20 (12) class
actions;
21 (13) rights of
majority; and
22 (14) any appeal
from an order or ruling of an administrative officer
23 or body.
24 New Sec.
3. The supreme court of this state shall adopt rules to
gov-
25 ern the electronic filing of court matters
and the storage of and access by
26 the public to the same, to govern the form
of pleadings, other documents
27 to be filed and such other matters as is
necessary under the code of civil
28 procedure for limited actions.
29 New Sec.
4. Judicial districts in this state may accept for filing
under
30 this act lawsuits filed in the same method
in which lawsuits are filed prior
31 to the adoption of this act, or filed
pursuant to an electronic filing pro-
32 cedure, or a combination of the two, as
long as any such filings comply
33 with the rules of the supreme court of this
state.
34 New Sec.
5. Without regard to whether the word "court" or the word
35 "judge" is used in any provisions of this
act, all trials upon the merits shall
36 be conducted in open court and in a regular
courtroom if reasonably
37 possible. All other acts or proceedings,
including the entry of a ruling or
38 judgment, may be done or conducted by a
judge or judge pro tem in
39 chambers, or at such other place as is
designated by the judge for the
40 conduct of court business, without the
attendance of the clerk or other
41 court officials.
42 New Sec.
6. The provisions of this act shall be liberally construed
to
43 secure the just, speedy and inexpensive
determination of every action or
3
1 proceeding.
2 New Sec.
7. The party who files a lawsuit shall be called the
plaintiff
3 and the adverse party shall be called
the defendant.
4 New Sec.
8. (a) A lawsuit filed under this act shall be deemed to
be
5 commenced at the time a petition is
filed with the clerk of the district
6 court if service of process is
obtained within 120 days after the petition
7 is filed, otherwise the lawsuit shall
be deemed to be commenced at the
8 time service of process is
obtained.
9 (b) If the
plaintiff seeks to obtain service of process by publication,
10 service of process shall be obtained at the
time of first publication.
11 (c) If service of
process or first publication purports to have been
12 made but is later determined by a court to
have been invalid due to any
13 irregularity in form or procedure or any
defect in making service, the
14 lawsuit shall nevertheless be deemed to
have been commenced when
15 filed if valid service is obtained within
the next 120 days after such
16 determination.
17 (d) An entry of
appearance by the defendant shall have the same
18 effect as service of process on the
defendant.
19 (e) The
limitation of time for commencing lawsuits pursuant to the
20 code of civil procedure for limited actions
shall be as provided in article
21 5 of chapter 60 of the Kansas Statutes
Annotated, and amendments
22 thereto, except where a different
limitation is specifically provided by
23 statute.
24 New Sec.
9. (a) Pleadings. Only the pleadings set forth in K.S.A.
60-
25 207, and amendments thereto, shall be
allowed in an action commenced
26 pursuant to the code of civil procedure for
limited actions, but the only
27 pleadings required are a petition and an
answer. Third-party practice in
28 the manner prescribed by K.S.A. 60-214, and
amendments thereto, shall
29 be permitted.
30 (b) Petitions. A
petition shall state the claim or claims which the plain-
31 tiff has against the defendant. It shall
set forth the current address, phone
32 number, fax phone number and electronic
mail address for the plaintiff.
33 If the plaintiff is not represented by an
attorney, the petition shall be
34 signed by the plaintiff under penalty of
perjury.
35 (c) Motions and
other papers. An application to the court or judge
36 for an order shall be by motion which,
unless made during a hearing or
37 trial, shall be made in writing, shall
state the particular grounds for the
38 motion, shall set forth the relief or order
sought, and shall contain a notice
39 of when the motion is to be heard by the
court.
40 New Sec.
10. (a) A defendant shall either appear, in person or by
41 counsel, at the time and date set forth in
the summons or file on or before
42 such date a written answer. If the
defendant appears and disputes the
43 petition, the defendant shall file an
answer not later than 10 days after
4
1 the appearance date. The defendant
shall promptly send a copy of the
2 answer after filing to the
plaintiff's attorney or the plaintiff, if no attorney.
3 If the defendant is not represented
by an attorney, the answer shall be
4 signed by the defendant under penalty
of perjury.
5 (b) The
answer shall state the following:
6 (1) What
the dispute is;
7 (2) any
affirmative defenses the defendant has to the claim; and
8 (3) the
current address, phone number, fax phone number and elec-
9 tronic mail address for the
defendant.
10 (c) If the
defendant does not file an answer, the defendant waives
11 the right to present: (1) Any dispute to
the claim or claims set forth in
12 the petition or (2) any affirmative
defenses to the same, and judgment
13 may be taken against the defendant upon
oral or written motion for judg-
14 ment by the plaintiff.
15 (d) If the
defendant asserts a counterclaim against the plaintiff in the
16 answer, the plaintiff may file a reply
disputing the defendant's counter-
17 claim not later than 10 days after service
of the defendant's answer. The
18 plaintiff's reply shall comply with the
requirements set forth in subsection
19 (b). If the plaintiff does not file a
reply, the plaintiff waives the right to
20 present any dispute to the defendant's
counterclaim.
21 (e) Affirmative
defenses are those listed in subsection (c) of K.S.A.
22 60-208, and amendments thereto.
23 (f) The date the
defendant is required to appear as set forth in the
24 summons may be continued by the court upon
request of either party in
25 such manner as the court shall
prescribe.
26 New Sec.
11. (a) (1) Upon timely application of the plaintiff and
in
27 the discretion of the court, a defendant
may be required to plead any
28 counterclaim which such party has against
the plaintiff, if it arises out of
29 the transaction or occurrence that is the
subject matter of the plaintiff's
30 claim and does not require for its
adjudication the presence of third par-
31 ties of whom the court cannot acquire
jurisdiction, except that the de-
32 fendant shall not be required to plead any
such claim if: (A) At the time
33 the action was commenced the claim was the
subject of another pending
34 action; or (B) the plaintiff brought suit
upon such plaintiff's claim by
35 attachment or other process by which the
court did not acquire jurisdic-
36 tion to render a personal judgment on that
claim, and the defendant is
37 not pleading any other counterclaim.
38 (2) A defendant
shall not be estopped from asserting in a subsequent
39 action any claim which such defendant may
have against the plaintiff, if
40 such defendant is not required to plead
such claim pursuant to this sec-
41 tion. Except as provided in subsections (a)
and (k), the provisions of K.S.A.
42 60-213, and amendments thereto, relating to
counterclaims and cross-
43 claims, shall apply to proceedings pursuant
to the code of civil procedure
5
1 for limited actions, subject to the
provisions of K.S.A. 61-1720, and
2 amendments thereto.
3
(b) Notwithstanding the provisions of subsection (a), in an
action in-
4 volving a claim governed by K.S.A.
60-258a, and amendments thereto, a
5 party shall state as a counterclaim
any claim that party has against any
6 opposing party arising out of the
transaction or occurrence that is the
7 subject matter of the claim governed
by K.S.A. 60-258a, and amendments
8 thereto.
9 New Sec.
12. The content and form of all pleadings and other papers
10 filed shall be set forth by rule of the
supreme court of this state.
11 New Sec.
13. (a) The petition shall be served on the defendant in
12 accordance with the provisions of sections
19 through 24, and amend-
13 ments thereto.
14 (b) All pleadings
other than the petition, motions which cannot be
15 heard ex-parte, notices, and orders which
are required by their terms to
16 be served, shall be served upon the party's
attorney of record, if the party
17 is represented by an attorney, or upon the
party if not represented by an
18 attorney, in the following manner:
19 (1) By delivering
a copy;
20 (2) by mailing a
copy by first class mail, certified mail or registered
21 mail to the last known address;
22 (3) by sending or
transmitting a copy by telefacsimile communication;
23 (4) by sending a
copy by internet electronic mail; or
24 (5) if no address
is known, by leaving a copy with the clerk of the
25 court.For the purposes of this subsection,
delivering a copy means: Hand-
26 ing it to the attorney or to the party;
leaving it at the attorney's or party's
27 office with the clerk or other person in
charge thereof or, if there is no
28 one in charge, leaving it in a conspicuous
place therein; or, if the attorney's
29 or party's office is closed or the person
to be served has no office, leaving
30 it at the attorney's or party's dwelling
house or usual place of abode with
31 some person of suitable age and discretion
then residing therein. Service
32 by mail is complete upon mailing. Service
by telefacsimile communication
33 is complete upon receipt of a confirmation
generated by the transmitting
34 machine. Service by internet electronic
mail shall be as provided by rule
35 of the supreme court of this state. All
such pleadings, motions, notices
36 and orders covered by this subsection shall
be filed with the court either
37 before service or within a reasonable time
thereafter.
38 (c) The filing of
pleadings and other papers with the court as required
39 or permitted by this act shall be done in
accordance with rules of the
40 supreme court.
41 New Sec.
14. The provisions of K.S.A. 60-209, 60-210 and 60-211,
42 and amendments thereto, shall apply to
pleadings filed under sections 7
43 through 18, and amendments thereto.
6
1 New Sec.
15. The provisions of K.S.A. 60-206, and amendments
2 thereto, governing the computation
and extension of time, shall govern
3 actions pursuant to the code of civil
procedure for limited actions, except
4 where provisions to the contrary are
specifically included in the code.
5 New Sec.
16. Upon motion of any party, the court shall order that
6 an action filed under the code of
civil procedure for limited actions, except
7 an action filed pursuant to the small
claims procedure act, sections 102
8 through 114, and amendments thereto,
shall thereafter be governed by
9 the provisions of chapter 60 of the
Kansas Statutes Annotated, and
10 amendments thereto. The party obtaining an
order under this section
11 shall pay any additional docket fee
required had the action been filed
12 under chapter 60 of the Kansas Statutes
Annotated, and amendments
13 thereto.
14 New Sec.
17. (a) By plaintiff. Whenever a plaintiff demands judg-
15 ment beyond the scope of actions authorized
by the provisions of section
16 2, and amendments thereto, the court shall
either:
17 (1) Transfer the
action to the chief judge of the judicial district for
18 assignment and hearing pursuant to chapter
60 of the Kansas Statutes
19 Annotated, and amendments thereto,
assessing the increased docket fee
20 to the plaintiff; or (2) allow the
plaintiff to amend the pleadings and
21 service of process to bring the demand for
judgment within the scope of
22 actions authorized by the provisions of
section 2, and amendments
23 thereto, assessing the costs accrued to the
plaintiff.
24 (b) By defendant.
If a defendant asserts a counterclaim or cross-claim
25 beyond the scope of the code of civil
procedure for limited actions, the
26 case shall be referred by the chief judge
for assignment and hearing pur-
27 suant to chapter 60 of the Kansas Statutes
Annotated, and amendments
28 thereto, assessing the increased docket fee
to the defendant.
29 New Sec.
18. The following provisions of article 2 of chapter 60 of
30 the Kansas Statutes Annotated, and
amendments thereto, are hereby
31 adopted by reference and made a part of
this act as if fully set forth herein,
32 insofar as such provisions are not
inconsistent or in conflict with the pro-
33 visions of this act:
34 (a) K.S.A.
60-215, and amendments thereto, relating to amended and
35 supplemental pleadings, except that the
time for filing amended pleadings
36 and for responding thereto shall be 10
instead of 20 days;
37 (b) K.S.A.
60-217, and amendments thereto, relating to capacity of
38 parties;
39 (c) K.S.A.
60-218, and amendments thereto, providing for joinder of
40 claims and remedies, K.S.A. 60-219 and
60-220, and amendments
41 thereto, providing for joinder of parties,
and K.S.A. 60-221, and amend-
42 ments thereto, relating to misjoinder of
parties and claims;
43 (d) K.S.A.
60-224, and amendments thereto, relating to intervention,
7
1 and K.S.A. 60-225, and amendments
thereto, providing for substitution
2 of parties;
3 (e) K.S.A.
60-234, and amendments thereto, relating to production
4 of documents and things for
inspection;
5 (f) K.S.A.
60-241, and amendments thereto, providing for dismissal
6 of actions;
7 (g) K.S.A.
60-244, and amendments thereto, providing for proof of
8 records;
9 (h) K.S.A.
60-256, and amendments thereto, relating to summary
10 judgment;
11 (i) K.S.A. 60-259
and 60-260, and amendments thereto, concerning
12 new trial and relief from judgment or
order, respectively;
13 (j) K.S.A. 60-261
and 60-263, and amendments thereto, relating re-
14 spectively to harmless error and disability
of a judge; and
15 (k) K.S.A.
60-264, and amendments thereto, relating to process in
16 behalf of and against persons not
parties.
17 New Sec.
19. Upon the filing of the petition pursuant to the code
of
18 civil procedure for limited actions, the
clerk of the district court shall
19 issue a summons for service upon each
defendant in accordance with this
20 act. Additional summonses may be issued as
requested.
21 New Sec.
20. (a) The summons shall be issued by the clerk, dated
22 the day it is issued and contain the
information set forth in the rules to
23 be adopted by the supreme court of this
state. The summons shall state
24 the time when the law requires the
defendant to appear or file an answer
25 in response to the petition, and shall
notify such defendant that in case
26 of such defendant's failure to appear or
file an answer, judgment by de-
27 fault will be rendered against such
defendant for the relief demanded in
28 the petition. The summons shall be in
substantially the form set forth in
29 the rules to be adopted hereunder by the
supreme court.
30 (b) The time
stated in the summons requiring the defendant to ap-
31 pear in response to the petition shall be
determined by the court. Such
32 time shall be not less than 11 nor more
than 50 days after the date the
33 summons is issued.
34 New Sec.
21. (a) Service, levy and execution of all process under
this
35 act shall be made by a sheriff or deputy
within the sheriff's county, by an
36 attorney admitted to the practice of law
before the supreme court of
37 Kansas, by a party to a lawsuit, or by some
person appointed as a process
38 server by a judge, except that a subpoena
may also be served by any
39 person who is not a party and is not less
than 18 years of age. An appointed
40 process server may be an individual,
corporation, partnership, court em-
41 ployee or other legal entity. An authorized
attorney and appointed process
42 server shall have the same authority as the
sheriff or deputy to serve, levy
43 and execute all process under this act,
including, but not limited to, writs
8
1 of execution, orders of attachment,
replevin orders, orders for delivery,
2 writs of restitution and writs of
assistance. All persons authorized under
3 this subsection to serve, levy and
execute process shall be considered an
4 "officer" as used in K.S.A. 60-706
and 60-2401, and amendments thereto.
5 (b) Process
servers shall be appointed freely and may be authorized
6 either to serve process in a single
case or in cases generally during a fixed
7 period of time. A process server or
an authorized attorney may make the
8 service anywhere in or out of the
state and shall be allowed the fees
9 prescribed in K.S.A. 28-110, and
amendments thereto, for the sheriff and
10 such other fees and costs as the court
shall allow. The mileage and fees
11 of a appointed process server incurred in
the service of process shall upon
12 order of the court be allowed as court
costs in the lawsuit.
13 (c) The sheriff
of the county where the lawsuit is filed shall serve all
14 process unless request is made by the party
requesting issuance of pro-
15 cess, or the court enters an order, for
someone else to serve the process.
16 The clerk of the court shall deliver,
electronically or otherwise, the pro-
17 cess and petition or other document to be
served.
18 (d) The person
serving process may serve the process in any of the
19 methods set forth below in this
subsection.
20 (1) First class
mail, certified mail or registered mail. Process may be
21 sent to a person by first class mail,
certified mail or registered mail, by
22 placing a copy of the process and petition
or other document to be served
23 in an envelope addressed to the person to
be served in accordance with
24 section 22, and amendments thereto, at such
person's last known address.
25 The envelope used for such service shall be
addressed to the person in
26 accordance with section 22, and amendments
thereto, shall contain ade-
27 quate postage for the type of mail used,
and shall contain such additional
28 endorsements or receipts as is required for
the type of mail used. Such
29 envelope shall be sealed and placed in the
United States mail. Service by
30 first class mail shall be complete when the
envelope is placed in the mail
31 unless returned undelivered. Service by
certified mail or registered mail
32 shall be complete upon delivery of the
envelope by the post office. If the
33 certified mail or registered mail envelope
is returned with an endorse-
34 ment showing refusal of delivery, the
person serving the same shall send
35 a copy of the process and petition or other
document to be served to the
36 defendant by first-class mail. Service
shall be considered obtained upon
37 the mailing by first-class mail unless
returned undelivered. Failure to
38 claim certified mail or registered mail
service is not refusal of service
39 within the meaning of this subsection.
40 (2) Personal and
residence service. Personal service shall be made by
41 delivering or offering to deliver a copy of
the process and accompanying
42 documents to the person to be served.
Residence service shall be made
43 by leaving a copy of the process and
petition, or other document to be
9
1 served, at the dwelling house or
usual place of abode of the person to be
2 served with some person of suitable
age and discretion residing therein.
3 If service cannot be made upon an
individual, other than a minor or a
4 disabled person, by personal or
residence service, service may be made
5 by leaving a copy of the process and
petition, or other document to be
6 served, at the dwelling house or
usual place of abode of the person to be
7 served and mailing a notice to the
individual by first-class mail that such
8 copy has been left at such house or
place of abode.
9
(3) Telefacsimile communication. Process may be sent to a
person by
10 telefacsimile communication. Service is
complete upon receipt of a con-
11 firmation generated by the transmitting
machine.
12 (4) Internet
electronic mail. Process may be sent to a person by in-
13 ternet electronic mail as provided in the
rules to be adopted hereunder
14 by the supreme court.
15 (5) Publication.
Service of process by publication may be made pur-
16 suant to the provisions of K.S.A. 60-307,
and amendments thereto, which
17 are not inconsistent or in conflict with
this act.
18 (e) When the
person to be served, or an agent authorized by the
19 person to accept service of process,
refuses to accept or receive copies of
20 the process, the offer of the process
server to deliver copies thereof, and
21 the refusal, shall be a sufficient service
of the process.
22 (f) An
acknowledgment of service on the summons is equivalent to
23 service. The voluntary appearance by a
defendant is equivalent to service
24 as of the date of appearance.
25 New Sec.
22. (a) Service shall be made promptly and, in any event,
26 in time to make a timely return of service
as required by section 23, and
27 amendments thereto.
28 (b) If the
defendant is a nonresident who is employed in this state,
29 or if the place of residence of the
defendant is unknown, the plaintiff may
30 direct that the service of summons or other
process shall be made by
31 directing an officer, partner, managing or
general agent, or the person
32 having charge of the office or place of
employment at which the defendant
33 is employed, to make the defendant
available for the purpose of permit-
34 ting the summons or other process to be
served on the defendant at the
35 defendant's place of employment.
36 (c) As used in
this section, "serving" means making service by any of
37 the methods described in section 21, and
amendments thereto, unless a
38 specific method of making service is
prescribed in this section. Except
39 for service by publication, service of
process shall be made as follows:
40 (1) Service upon
an individual other than a minor or disabled person
41 shall be made by serving the individual or
by serving an agent authorized
42 by appointment or by law to receive service
of process, but if the agent
43 is one designated by statute to receive
service, such further notice as the
10
1 statute requires shall be given.
Service by certified mail or first-class mail
2 shall be addressed to an individual
at the individual's dwelling house or
3 usual place of abode and to an
authorized agent at the agent's usual or
4 designated address.
5 (2) Service
upon a minor, disabled person, as defined by K.S.A. 59-
6 3002, and amendments thereto, foreign
or domestic corporations, part-
7 nerships, insurance companies or
associations shall be made in accord-
8 ance with the applicable provisions
of K.S.A. 60-304, and amendments
9 thereto.
10 (3) Service upon
a governmental entity shall be made in accordance
11 with the applicable provisions of K.S.A.
60-304, and amendments thereto.
12 New Sec.
23. (a) The person serving process shall file a return
show-
13 ing proof of service as follows:
14 (1) Mail service.
The return shall show the nature of the process, the
15 date on which the process was mailed, the
name and address on the
16 envelope containing the process, the type
of mail service and the return
17 receipt, if any.
18 (2) Personal and
residence service. The return shall show the time,
19 place and manner of service of such
process.
20 (3) Telefacsimile
communication. The return shall show the nature
21 of the process, the time and date on which
the process was transmitted
22 by telefacsimile, the telephone number of
the transmitting machine and
23 the telephone number of the receiving
machine.
24 (4) Internet
electronic mail. The return shall show the nature of the
25 process, the time and date on which the
process was transmitted by in-
26 ternet electronic mail, the internet
electronic mail address of the trans-
27 mitting person and the internet electronic
mail address of the receiving
28 person.
29 (5) Publication.
The return shall show the dates upon, and the news-
30 paper in which the notice of publication
was published. When mailing of
31 copies of the publication notice is
required in accordance with subsection
32 (e) of K.S.A. 60-307, and amendments
thereto, the proof of such mailing
33 shall include the person to whom such
notice was mailed and any return
34 receipt.
35 (b) The person
receiving a summons or other process in forcible de-
36 tainer cases shall file a return of service
no later than three days before
37 the date stated in the summons for the
defendant to appear. In all other
38 cases, return of service shall be filed no
later than five days before the
39 date stated in the summons for the
defendant to appear. If the process
40 cannot be served as directed it shall be
returned to the court forthwith
41 with a statement of the reason for the
failure to serve the same.
42 (c) At any time
in the judge's discretion and upon such terms as the
43 judge deems just, the judge may allow any
process, return or proof of
11
1 service thereof to be amended, unless
it clearly appears that material
2 prejudice would result to the
substantial rights of the party against whom
3 the process issued.
4 New Sec.
24. (a) (1) Service of process may be made upon any party
5 outside the state. If upon a person
domiciled in this state or upon a person
6 who has submitted to the jurisdiction
of the courts of this state, it shall
7 have the force and effect of service
of process within this state; otherwise
8 it shall have the force and effect of
service by publication.
9 (2) The
service of process shall be made in the same manner as serv-
10 ice within this state, by any officer
authorized to make service of process
11 in this state or in the state where the
defendant is served. No order of a
12 court is required. An affidavit, or any
other competent proofs, of the
13 server shall be filed stating the time,
manner and place of service. The
14 court may consider the affidavit, or any
other competent proofs, in de-
15 termining whether service has been properly
made.
16 (3) The time
stated in the summons requiring the defendant to ap-
17 pear in response to the petition shall be
determined by the court. Such
18 time shall be not less than 11 nor more
than 50 days after the date the
19 summons is issued, except as provided in
subsection (a)(3) of K.S.A. 60-
20 308, and amendments thereto.
21 (b) The
provisions of subsection (b) of K.S.A. 60-308, and amend-
22 ments thereto, shall be used to determine
whether a person has submitted
23 to the jurisdiction of this state.
24 (c) Service of
process upon any person who is subject to the jurisdic-
25 tion of the courts of this state, as
provided in subsection (b), may be made
26 by serving the process upon the defendant
outside this state, as provided
27 in subsection (a)(2), with the same force
and effect as though process had
28 been served within this state, but only
causes of action arising from acts
29 enumerated in subsection (b) may be
asserted against a defendant in an
30 action in which jurisdiction over the
defendant is based upon this
31 subsection.
32 (d) Nothing
contained in this section limits or affects the right to
33 serve any process in any other manner
provided by law.
34 New Sec.
25. (a) When an answer has been filed in an action com-
35 menced pursuant to the provisions of the
code of civil procedure for
36 limited actions, any party may submit to
any other party a written request
37 for that party to admit:
38 (1) The
genuineness of any relevant document described in and at-
39 tached to the request; or
40 (2) the truth of
any relevant matter of fact set forth in the request.
41 The request shall be in a form which will
permit the party to whom it is
42 submitted to answer the questions on the
request form under oath. A
43 request for admissions may not contain more
than 10 requests unless
12
1 permission of the court is obtained
to increase the number.
2 (b) Each of
the matters requested shall be deemed to be admitted
3 for purposes of the pending lawsuit,
unless within 15 days after the re-
4 quest is served, the party to whom
the request is directed submits to the
5 party propounding the request
either:
6 (1) A sworn
statement denying specifically the matters requested; or
7 (2) written
objections on the ground that some or all of the requested
8 admissions are privileged or
irrelevant or that the request is otherwise
9 improper in whole or in part.
10 (c) If the
answering party cannot truthfully admit or deny a request,
11 the party shall set forth in detail the
reasons why. If the answering party
12 denies a request, the denial shall be in
good faith and shall fairly address
13 the substance of the request. If in good
faith the answering party can
14 deny only a part of the request or qualify
a request, the party shall specify
15 which part is admitted and qualify or deny
the remaining part. If the
16 answering party objects to a request, the
party shall notify the court and
17 the party propounding the request and
schedule a hearing on the objec-
18 tion to be held within 10 days after making
the objection.
19 New Sec.
26. If a party to whom a request for admission has been
20 submitted denies under oath any matter
requested, and the party sub-
21 mitting the request later proves the
genuineness of any document or the
22 truth of any matter of fact denied by the
answering party, the party sub-
23 mitting the request may ask the court for
an order requiring the answering
24 party to pay the reasonable expenses
incurred in making such proof, in-
25 cluding reasonable attorney fees. The court
shall enter the order unless
26 the court finds that there were good
reasons for the denial or that the
27 admissions sought were of no substantial
importance.
28 New Sec.
27. (a) Any party may submit to any other party up to 10
29 interrogatories. The party receiving the
interrogatories shall submit an-
30 swers or objections, if any, to the party
submitting the same within 15
31 days after the interrogatories are
submitted to the receiving party. On
32 motion, the court may allow a longer time
to answer or may permit a
33 greater number of interrogatories to be
submitted.
34 (b) The
provisions of K.S.A. 60-233, and amendments thereto, shall
35 be applicable to interrogatories pursuant
to this section, except that the
36 provisions of this section relating to the
time when interrogatories are to
37 be answered shall be applicable. The
general discovery provisions of sub-
38 sections (b), (c) and (e) of K.S.A. 60-226,
and amendments thereto, and
39 the sanction provisions of K.S.A. 60-237,
and amendments thereto, as
40 such sections relate to interrogatories,
shall be applicable to interroga-
41 tories pursuant to this section.
42 New Sec.
28. Subpoenas may be issued by the clerk of the district
43 court under the seal of such court or by
the judge to compel the attend-
13
1 ance of witnesses or for the
production of documentary evidence in the
2 manner provided in K.S.A. 60-245, and
K.S.A. 60-245a, and amendments
3 thereto. Subpoenas shall be served in
accordance with sections 19 through
4 24, and amendments thereto, and shall
be accompanied by the fees for
5 one day's attendance and the mileage
allowed by law.
6 New Sec.
29. (a) Any party to an action pursuant to the code of
civil
7 procedure for limited actions may
take the testimony of any person, in-
8 cluding a party, either within or
without the state, by deposition upon
9 oral examination or written questions
but only for use as evidence in the
10 action. Unless the court orders otherwise,
the parties may by written
11 stipulation provide that depositions may be
taken before any person, at
12 any time or place, upon any notice, and in
any manner and when so taken
13 may be used like other depositions. The
taking of such depositions shall
14 be governed by the provisions of K.S.A.
60-228, subsections (b) through
15 (h) of K.S.A. 60-230, K.S.A. 60-231 and
subsection (d) of K.S.A. 60-232,
16 and amendments thereto, except that any
party desiring to take a depo-
17 sition shall first file with the court, and
serve on all other parties to the
18 action, a motion that the taking of such
deposition be allowed due to the
19 existence of at least one of the conditions
prescribed in subsection (b) for
20 the use of depositions as evidence. Within
five days after any such motion
21 has been made, any other party to the
action may file an objection to such
22 motion, and in such event, the court shall
hold a hearing within five days
23 thereof to determine the issue. No
deposition shall be taken unless and
24 until the court shall have granted the
motion requesting permission
25 therefor.
26 (b) At the trial,
or upon the hearing of a motion or an interlocutory
27 proceeding, any part or all of a deposition
of a witness, whether or not a
28 party, so far as it is admissible under the
rules of evidence, may be used
29 for any purpose against any party who was
present or represented at the
30 taking of the deposition, or who had due
notice thereof, if the court finds
31 that:
32 (1) The witness
is dead;
33 (2) the witness
is outside of the county of the place of trial or hearing,
34 unless it appears that the absence of the
witness was procured by the
35 party offering the deposition;
36 (3) the witness
is unable to attend or testify because of age, sickness,
37 infirmity or imprisonment;
38 (4) the party
offering the deposition has been unable to procure the
39 attendance of the witness by subpoena;
or
40 (5) upon
application and notice, that such exceptional circumstances
41 exist as to make it desirable, in the
interest of justice and with due regard
42 to the importance of presenting the
testimony of witnesses orally in open
43 court, to allow the deposition to be
used.
14
1 (c) In
addition to the uses of depositions enumerated in subsection
2 (b), the court on motion may permit
the use of depositions as provided
3 in subsections (b)(1), (2) and (4) of
K.S.A. 60-232, and amendments
4 thereto, in the interest of justice
and on such terms and conditions as will
5 fairly protect the parties.
6 New Sec.
30. Production of documents and things for inspection
7 shall be allowed in accordance with
K.S.A. 60-234, and amendments
8 thereto.
9 New Sec.
31. (a) If the defendant appears on the date specified in
10 the summons and disputes the petition, the
court may set the case for a
11 pretrial hearing which shall be held as
soon as is reasonably practical. All
12 parties shall be notified of the date, time
and place for the pretrial hearing.
13 (b) After a case
has been set for pretrial, each of the parties shall
14 submit to the other party before the date
scheduled for the pretrial hear-
15 ing, copies of all documents which support
the petition or answer and an
16 identification of all witnesses who will
testify at trial to support the same.
17 (c) If the
defendant fails to appear at the pretrial hearing, the court
18 may enter default judgment against the
defendant for the relief de-
19 manded in the petition without further
notice. If the plaintiff fails to
20 appear at the pretrial hearing, the court
may dismiss the lawsuit.
21 (d) If both
parties appear at the pretrial hearing, the court shall con-
22 duct a conference with the parties to
clarify the issues for trial and explore
23 the possibilities of settlement. If the
defendant does not have a legal
24 defense to the petition, or if judgment
would be entered against the
25 defendant as a matter of law if the matter
were to proceed to trial, the
26 court may enter judgment against the
defendant for the relief demanded
27 in the petition or for such other relief
that the court believes is fair and
28 just. If the plaintiff has not stated a
claim upon which relief can be
29 granted, the court may dismiss the
petition.
30 New Sec.
32. (a) If a case is not settled or otherwise disposed of
at
31 the pretrial hearing, the case shall be set
for trial by the court.
32 (b) All lawsuits
filed under this act shall be tried by the court, unless
33 a trial by jury is demanded by one of the
parties. Demand for jury trial
34 shall be filed as a part of the petition or
answer.
35 (c) A lawsuit
tried by jury pursuant to the code of civil procedure for
36 limited actions shall be tried to a jury
composed of six persons having the
37 same qualifications of jurors as other
jurors in district court, unless the
38 parties agree on a lesser number. The court
shall summon not less than
39 12 prospective jurors from the source and
in the manner provided for
40 the summoning of petit jurors in the
district court. When there is more
41 than one plaintiff or more than one
defendant in such action, the court
42 shall summon three additional prospective
jurors for each such additional
43 plaintiff or defendant. Each juror shall be
paid as specified in K.S.A. 43-
15
1 171, and amendments thereto, for each
day of attendance and shall re-
2 ceive mileage at the rate prescribed
in K.S.A. 75-3203, and amendments
3 thereto. Such jury fees shall be paid
by the county. The provisions of
4 K.S.A. 60-247, subsections (b)
through (h) of K.S.A. 60-248, K.S.A. 60-
5 250 and 60-251, and amendments
thereto, shall be applicable to actions
6 pursuant to the code of civil
procedure for limited actions insofar as they
7 are not inconsistent with the
provisions of this act.
8 (d) In all
trials pursuant to the code of civil procedure for limited
9 actions, the testimony of witnesses
shall be taken orally in open court,
10 unless otherwise provided by this act. All
matters relating to witnesses
11 and the admission of evidence shall be
governed by article 4 of chapter
12 60 of the Kansas Statutes Annotated, and
amendments thereto.
13 New Sec.
33. (a) The court may enter a default judgment in the
14 following situations:
15 (1) If a
defendant fails to either appear or file a written answer on or
16 before the time specified in the summons,
judgment may be entered
17 against the defendant upon proof of service
and at such time as the plain-
18 tiff requests same, without further notice
to the defendant, except that
19 no default judgment may be taken against a
defendant where service was
20 by first class mail, telefacsimile
communication or internet electronic
21 mail.
22 (2) If a
defendant fails to appear at the time set for a pretrial or
trial
23 hereunder, judgment may be entered against
the defendant at the request
24 of the plaintiff without further notice to
the defendant.
25 (3) If the
defendant has filed a counterclaim against the plaintiff and
26 the plaintiff fails to appear at the time
set for a pretrial or trial hereunder,
27 judgment may be entered against the
plaintiff at the request of the de-
28 fendant without further notice to the
plaintiff.
29 (b) A default
judgment shall not be different in kind from or exceed
30 the amount of the relief sought in the
demand for judgment.
31 (c) If a
defendant seeks to set aside a default judgment for failure to
32 appear at the time specified in the
summons, the defendant shall file a
33 motion not more than 10 days from the date
of such judgment in a lawsuit
34 where the defendant was personally served
with summons within the
35 state, or not more than 45 days where
service of summons was by other
36 than personal service within the state. If
any party seeks to set aside any
37 other default judgment, that party shall
file a motion not more than 10
38 days from the date of such judgment. Any
motion to set aside a default
39 judgment, except for the time limits set
forth above, shall be in accord-
40 ance with the applicable provisions of
subsection (b) of K.S.A. 60-260,
41 and amendments thereto.
42 (d) In cases
where no service is had, for good cause shown, the court
43 may set aside a default judgment pursuant
to the applicable provisions of
16
1 subsection (b) of K.S.A. 60-260, and
amendments thereto.
2 New Sec.
34. (a) A judgment may be entered by master or other
3 journal entry or judgment form
approved by a judge. The judgment shall
4 be effective from the date the
journal entry or judgment form is filed
5 with the clerk of the court. The form
of the journal entry or judgment
6 form shall be set forth in the rules
of the supreme court of this state.
7 (b) One or
more cases may be shown on a journal entry or judgment
8 form as set forth in the rules of the
supreme court of this state.
9 (c) When
more than one claim for relief is presented in a lawsuit, the
10 court may direct the entry of a final
judgment upon one or more but less
11 than all of the claims upon such terms and
conditions as set forth in the
12 judgment of the court.
13 (d) Except as to
a party against whom a judgment is entered by de-
14 fault, every final judgment shall grant the
relief to which the party in
15 whose favor it is rendered is entitled,
regardless of whether the party has
16 demanded such relief in such party's
pleadings. Upon entry of such judg-
17 ment, the party in whose favor judgment is
entered shall be deemed to
18 have waived such party's right to recover
any amount due in excess of
19 such judgment, and such party may not
recover in a subsequent lawsuit
20 any amount in excess of such judgment.
21 (e) Whenever a
party has commenced postjudgment proceedings for
22 the enforcement of a judgment, and such
judgment is subsequently set
23 aside, reversed on appeal or otherwise
nullified, such party shall not be
24 liable for damages as a result of such
postjudgment proceedings, unless
25 it can be proven that the judgment upon
which such proceedings were
26 based was fraudulently obtained.
27 New Sec.
35. The provisions of K.S.A. 16-201, 16-204 and 16-205,
28 and amendments thereto, shall apply to
judgments entered under the
29 code of civil procedure for limited
actions.
30 New Sec.
36. The provisions of K.S.A. 60-252, 60-259 and 60-260,
31 and amendments thereto, shall apply to
judgments entered under the
32 code of civil procedure for limited actions
where such provisions are not
33 inconsistent with other provisions of the
code.
34 New Sec.
37. Actions for the recovery of a fine, forfeiture or
penalty,
35 other than against public utilities or
common carriers, must be brought
36 in the county in which the cause arose,
except if the act was committed
37 on a road or river which forms the boundary
of two or more counties the
38 action may be brought in any one of the
bordering counties opposite the
39 place where the act was committed.
40 New Sec.
38. An action against a resident of this state, other than
an
41 action for which venue is otherwise
specifically prescribed by law, may
42 be brought in the county in which:
43 (a) The defendant
resides;
17
1 (b) the
plaintiff resides if the defendant is served therein;
2 (c) the
cause of action arose;
3 (d) the
defendant has a place of business or of employment if the
4 defendant is served therein;
5 (e) the
estate of a deceased person is being probated if such deceased
6 person was jointly liable with the
defendant and a demand to enforce
7 such liability has been duly
exhibited in the probate proceedings of such
8 decedent's estate; or
9 (f) there
is located tangible personal property which is the subject of
10 an action for the possession thereof if
immediate possession is sought in
11 accordance with section 74, and amendments
thereto, at the time of the
12 filing of the action.
13 New Sec.
39. An action against a domestic corporation, or against a
14 foreign corporation which is qualified to
do business in this state, other
15 than an action for which venue is otherwise
specifically prescribed by law,
16 may be brought in the county in which:
17 (a) Its
registered office is located;
18 (b) the cause of
action arose;
19 (c) the defendant
is transacting business at the time of the filing of
20 the petition; or
21 (d) there is
located tangible personal property which is the subject of
22 an action for the possession thereof if
immediate possession is sought in
23 accordance with section 74, and amendments
thereto, at the time of the
24 filing of the action.
25 New Sec.
40. An action against a nonresident of this state, or
against
26 a corporation which is not qualified to do
business in this state, other than
27 an action for which venue is otherwise
specifically prescribed by law, may
28 be brought in the county in which:
29 (a) The plaintiff
resides, or if the plaintiff is a corporation, in the
30 county of its registered office or in which
it maintains a place of business;
31 (b) the defendant
is served;
32 (c) the cause of
action arose;
33 (d) the defendant
is transacting business at the time of the filing of
34 the petition;
35 (e) there is
property of the defendant, or debts owing to the defend-
36 ant; or
37 (f) there is
located tangible personal property which is the subject of
38 an action for the possession thereof if
immediate possession is sought in
39 accordance with section 74, and amendments
thereto, at the time of the
40 filing of the action.
41 New Sec.
41. Any action brought against a public utility, common
42 carrier or transportation system for any
liability or penalty or forfeiture,
43 may be brought in any county into or
through which such public utility,
18
1 common carrier or transportation
system operates regularly.
2 New Sec.
42. If there are several plaintiffs properly joined and
venue
3 is determined by the residence of one
of them, it shall be necessary that
4 such plaintiff's claim is a
substantial part of the action. If there are several
5 defendants properly joined, venue of
the action may be determined at
6 the election of the plaintiff as to
any one of the defendants against whom
7 a substantial claim exists. If,
before trial of an action on the merits is
8 commenced, a party with reference to
whom venue was determined
9 ceases to be a party and venue would
no longer be proper as to the
10 remaining parties, on the application of
any remaining party promptly
11 made, the cause shall be transferred to a
court of a county of proper
12 jurisdiction and venue. If there is more
than one such county, the transfer
13 shall be to a county selected by the
plaintiff.
14 New Sec.
43. In all cases pursuant to the provisions of the code of
15 civil procedure for limited actions in
which it shall be made to appear
16 that a fair and impartial trial cannot be
had in the county where the suit
17 is pending, for reasons other than the
disqualification of the judge, the
18 court, upon application of either party,
may change the place of trial to
19 the district court of some county where the
objection does not exist.
20 New Sec.
44. Objection to the venue of an action shall not be
allowed
21 except on timely motion made and for
grounds established before trial of
22 the action is commenced on the merits.
23 New Sec.
45. If an action is commenced in good faith and a subse-
24 quent timely objection to the venue is
sustained, or if before trial on the
25 merit commences, it is found that no cause
of action exists in favor of or
26 against a party upon whom venue was
dependent, the action shall be
27 transferred to a court of proper
jurisdiction of any county of proper venue.
28 If there is more than one such county, the
transfer shall be to the court
29 of a county selected by the plaintiff. In
accordance with section 96, and
30 amendments thereto, the receiving district
court shall require the pay-
31 ment of an appropriate docket fee from the
movant.
32 New Sec.
46. The provisions of article 7 of chapter 60 of the
Kansas
33 Statutes Annotated, and amendments thereto,
relating to attachment shall
34 govern attachment proceedings for actions
pursuant to the code of civil
35 procedure for limited actions, except the
provisions of K.S.A. 60-711, and
36 amendments thereto, relating to the
appointment of a receiver, shall not
37 be applicable in lawsuits filed under the
code of civil procedure for limited
38 actions.
39 New Sec.
47. Garnishment is a procedure whereby the wages,
40 money or property of a person can be seized
or attached pursuant to an
41 order of garnishment issued by the court
under the conditions set forth
42 in the order.
43 New Sec.
48. An order of garnishment before judgment may be ob-
19
1 tained only upon order of a judge of
the district court pursuant to the
2 procedure to obtain an order of
attachment. No order of garnishment
3 may be obtained before judgment where
the property sought to be at-
4 tached is wages earned by the person
being garnished.
5 New Sec.
49. (a) As an aid to the collection of a judgment, an
order
6 of garnishment may be obtained at any
time after 10 days following judg-
7 ment. There is no requirement that an
execution first be issued and re-
8 turned unsatisfied.
9 (b) The
party requesting a garnishment shall file a request in an in-
10 dividual case or by a master request
covering more than one case asking
11 the court to issue an order of garnishment.
The request shall designate
12 whether the order of garnishment is to be
issued to attach earnings or to
13 attach other property of the judgment
debtor. If such party seeks to attach
14 earnings of the judgment debtor to
enforce:
15 (1) An order of
any court for the support of any person;
16 (2) an order of
any court of bankruptcy under chapter XIII of the
17 federal bankruptcy act; or
18 (3) a debt due
for any state or federal tax, the direction of the party
19 shall so indicate.No bond is required for
an order of garnishment issued
20 after judgment.
21 New Sec.
50. This section shall apply if the garnishment is to
attach
22 property other than earnings of the
judgment debtor.
23 (a) The order of
garnishment shall be substantially in compliance with
24 the forms set forth in the rules of the
supreme court of this state.
25 (b) The order of
garnishment and the appropriate form for the gar-
26 nishee's answer shall be served on the
garnishee in the same manner as
27 process is to be served pursuant to
sections 19 through 24, and amend-
28 ments thereto, except that the garnishee
may be served by any means
29 provided under sections 19 through 24, and
amendments thereto, at the
30 garnishee's business or office location and
this shall be considered proper
31 service. Two copies of the answer form
shall be served if the garnishment
32 order is not served electronically. If the
order is served prior to a judg-
33 ment, the order shall also be served on the
judgment debtor, if the judg-
34 ment debtor can be found, except that the
order shall not be served on
35 the judgment debtor until after service has
been made on the garnishee.
36 Failure to serve the judgment debtor shall
not relieve the garnishee from
37 liability under the order.
38 (c) The order of
garnishment shall have the effect of attaching:
39 (1) All property,
funds, credits or other indebtedness belonging to or
40 owing the judgment debtor, other than
earnings, which is in the posses-
41 sion or under the control of the garnishee,
and all such credits and in-
42 debtedness due from the garnishee to the
judgment debtor at the time
43 of service of the order; and
20
1 (2) all
such personal property coming into the possession or control
2 of the garnishee and belonging to the
judgment debtor, and all such
3 credits and indebtedness becoming due
to the judgment debtor between
4 the time the order is served on the
garnishee and the time the garnishee
5 makes the answer of the garnishee.
Where the garnishee is an executor
6 or administrator of an estate in
which the judgment debtor is or may
7 become a legatee or distributee
thereof, the order of garnishment shall
8 have the effect of attaching and
creating a first and prior lien upon any
9 property or funds of such estate to
which the judgment debtor is entitled
10 upon distribution of the estate, and such
garnishee shall be prohibited
11 from paying over to the judgment debtor any
of such property or funds
12 until so ordered by the court from which
the order of garnishment was
13 issued.
14 (d) The
garnishee, without prior agreement, may withhold and retain
15 to defray the garnishee's costs, an
administrative fee of $10 for each order
16 of garnishment that attaches funds, credits
or indebtedness. Such admin-
17 istrative fee shall be in addition to the
amount required to be withheld
18 under the order for garnishment, except
that if the amount required to
19 be withheld under the order for garnishment
is greater than the amount
20 of the funds, credits or indebtedness held
by the garnishee, the fee shall
21 be deducted from the amount withheld.
22 New Sec.
51. (a) The written direction of a party seeking an order
23 of garnishment attaching funds, credits or
indebtedness held by a bank,
24 savings and loan association, credit union
or finance company shall state
25 the amount to be withheld, which shall be
110% of the amount of the
26 judgment creditor's claim, in the case of
prejudgment garnishment, or
27 110% of the amount of the current balance
due under the judgment, in
28 the case of postjudgment garnishment. The
garnishee, without prior
29 agreement, may withhold and retain to
defray the garnishee's costs, an
30 administrative fee of $10 for each order of
garnishment that attaches
31 funds, credits or indebtedness. Such
administrative fee shall be in addi-
32 tion to the amount required to be withheld
under the order for garnish-
33 ment, except that if the amount required to
be withheld under the order
34 for garnishment is greater than the amount
of the funds, credits or in-
35 debtedness held by a bank, savings and loan
association, credit union or
36 finance company, the fee shall be deducted
from the amount withheld.
37 (b) All orders of
garnishment issued in this state for the purpose of
38 attaching funds, credits or indebtedness
held by a bank, savings and loan
39 association, credit union or finance
company shall include the judgment
40 debtor's address and tax identification
number, if known, and shall specify
41 the amount of funds, credits or
indebtedness to be withheld by the gar-
42 nishee, which shall be 110% of the amount
of the judgment creditor's
43 claim or 110% of the amount of the current
balance due under the judg-
21
1 ment, as stated in the written
direction of the party seeking the order.
2 (c) The
forms provided by law for an order of garnishment attaching
3 funds, credits or indebtedness held
by a bank, savings and loan associa-
4 tion, credit union or finance company
shall include the following
5 statement:
6 "If you hold any
funds, credits or indebtedness belonging to or owing
7 the judgment debtor, the amount to be
withheld by you pursuant to this
8 order of garnishment is not to exceed
$_______ ."
9
(amount stated in direction)
10 (d) (1) The forms provided
by law for the answer to an order of
11 garnishment attaching funds, credits or
indebtedness held by a bank, sav-
12 ings and loan association, credit union or
finance company shall include
13 the following statement:
14 "The amount of the
funds, credits or indebtedness belonging to or
15 owing the judgment debtor which I shall
hold shall not exceed
16 $_______ ."
17
(amount stated in order)
18 (2) The answer
shall further include information that such account is
19 owned in joint tenancy with one or more
individuals who are not subject
20 to the garnishment, if applicable.
21 (e) If an order
of garnishment attaches funds, credits or indebtedness
22 held by a bank, savings and loan
association, credit union or finance com-
23 pany and the garnishee holds funds or
credits or is indebted to the judg-
24 ment debtor in two or more accounts, the
garnishee may withhold pay-
25 ment of the amount attached from any one or
more of such accounts.
26 (f) If an order
of garnishment attaches funds, credits or indebtedness
27 held by a bank, savings and loan
association, credit union or finance com-
28 pany and the garnishee holds funds or
credits or is indebted to the judg-
29 ment debtor in an account which judgment
debtor owns in joint tenancy
30 with one or more individuals who are not
subject to the garnishment, the
31 garnishee shall withhold the entire amount
sought by the garnishment.
32 Neither the garnishor nor the garnishee
shall be liable to the joint owners
33 if the ownership of the funds is later
proven not to be the judgment
34 debtor's.
35 (g) No party
shall seek an order of garnishment attaching funds, cred-
36 its or indebtedness held by a bank, savings
and loan association, savings
37 bank, credit union or finance company
except on good faith belief of the
38 party seeking garnishment that the party to
be served with the garnish-
39 ment order has, or will have, assets of the
judgment debtor. Except as
40 provided further, not more than two
garnishments shall be issued by a
41 party seeking an order of garnishment
applicable to the same claim or
42 claims and against the same judgment debtor
in any 30-day period. A
43 judge may order an exception to this
subsection in any case in which the
22
1 party seeking the garnishment shall
in person or by attorney: (1) Certify
2 that the garnishment is not for the
purpose of harassment of the debtor,
3 and (2) state facts demonstrating to
the satisfaction of the judge that there
4 is reason to believe that the
garnishee has property or credits of the debtor
5 which are not exempt from
execution.
6 New Sec.
52. This section shall apply if the garnishment is to
attach
7 earnings of the judgment debtor.
8 (a) The
order of garnishment shall be substantially in compliance with
9 the forms set forth in the rules of
the supreme court of this state.
10 (b) The order of
garnishment and the appropriate form for the gar-
11 nishee's answer shall be served on the
garnishee in the same manner as
12 process is to be served pursuant to
sections 19 through 24, and amend-
13 ments thereto, except that the garnishee
may be served by any means
14 provided under sections 19 through 24, and
amendments thereto, at the
15 garnishee's business or office location and
this shall be considered proper
16 service. Two copies of the answer form
shall be served if the garnishment
17 order is not served electronically.
18 (c) The order of
garnishment shall have the effect of attaching the
19 nonexempt portion of the judgment debtor's
earnings for all pay periods
20 which end while the order is in effect. The
order shall remain in effect
21 until either of the following occur,
whichever is sooner: (1) The judgment
22 is paid; or (2) the garnishment is
released. Nonexempt earnings are earn-
23 ings which are not exempt from wage
garnishment pursuant to K.S.A. 60-
24 2310, and amendments thereto. Computation
of the nonexempt portion
25 of the judgment debtor's wages for the pay
period or periods covered by
26 the order shall be made in accordance with
the directions accompanying
27 the garnishee's answer form, and a written
explanation of the garnishee's
28 computations shall be furnished to the
judgment debtor with each pay-
29 check from which earnings are withheld
pursuant to the order of gar-
30 nishment. The order of garnishment shall
also constitute an order of the
31 court directing the garnishee to pay to the
judgment creditor all earnings
32 which are to be withheld by the garnishee
under the order of garnishment
33 as more particularly provided in the answer
of the garnishee.
34 (d) From income
due the judgment debtor, the garnishee may with-
35 hold and retain to defray the garnishee's
costs, an administrative fee of
36 $10 for each pay period for which income is
withheld, not to exceed $20
37 for each 30 day period for which income is
withheld, whichever is less.
38 Such administrative fee shall be in
addition to the amount required to be
39 withheld under the order for garnishment.
If the addition of this fee
40 causes the total amount withheld to exceed
the restrictions imposed by
41 subsection (b) of K.S.A. 60-2310, and
amendments thereto, the fee shall
42 be deducted from the amount withheld.
43 New Sec.
53. Immediately following the time the order of garnish-
23
1 ment is served on the garnishee and
before the answer of garnishee is
2 made, the garnishee shall send a
notice to the judgment debtor in any
3 reasonable manner, notifying the
judgment debtor:
4 (a) That a
garnishment order has been issued against the judgment
5 debtor and the effect of such
order;
6 (b) of the
judgment debtor's right to assert any claim of exemption
7 allowed under the law with respect to
a garnishment against property
8 other than earnings or of the
judgment debtor's right to object to the
9 calculation of exempt and nonexempt
earnings with respect to a garnish-
10 ment against the earnings of the debtor;
and
11 (c) of the
judgment debtor's right to a hearing on such claim or ob-
12 jection. The notice shall be substantially
in compliance with the form set
13 forth in the rules of the supreme court of
this state, and shall contain a
14 description of the exemptions that are
applicable to garnishments and the
15 procedure by which the judgment debtor can
assert any claim of exemp-
16 tion. A copy of the notice form shall be
served on the garnishee with the
17 order of garnishment. If the garnishee does
not have possession of any
18 property, funds, credits, indebtedness or
wages belonging to or owing the
19 judgment debtor, the garnishee does not
need to send the notice to the
20 judgment debtor.
21 New Sec.
54. This section shall apply if the garnishment is to
attach
22 property other than earnings of the
judgment debtor.
23 (a) The answer of
the garnishee shall be substantially in compliance
24 with the forms set forth in the rules of
the supreme court of this state.
25 (b) Within 10
days after service upon a garnishee of an order of gar-
26 nishment the garnishee shall complete the
answer in accordance with the
27 instructions accompanying the answer form
stating the facts with respect
28 to the demands of the order and send the
completed answer to the judg-
29 ment creditor and judgment debtor at the
addresses listed on the answer
30 form. The answer shall be supported by
unsworn declaration in the man-
31 ner set forth on the answer form.
32 New Sec.
55. This section shall apply if the garnishment is to
attach
33 earnings of the judgment debtor.
34 (a) The answer of
the garnishee shall be substantially in compliance
35 with the forms set forth in the rules of
the supreme court of this state.
36 (b) Within 15
days following the end of each month, the garnishee
37 shall complete the answer in accordance
with the instructions accompa-
38 nying the answer form for all pay periods
ending during the month and
39 send the completed answer to each judgment
creditor and judgment
40 debtor at the addresses listed on the
answer form. The garnishee shall
41 designate on the answer in the space
provided on the answer form the
42 name and case number for each judgment
creditor who has a garnishment
43 order in effect for the same debtor at the
end of each month and the
24
1 amount that is due each judgment
creditor under the garnishment in
2 accordance with the instructions
accompanying the answer form. Only
3 one answer needs to be completed for
each judgment debtor by the gar-
4 nishee and the garnishee make
duplicate the completed answer in any
5 manner the garnishee desires for
distribution to each judgment creditor
6 and judgment debtor. The answer shall
be supported by unsworn dec-
7 laration in the manner set forth on
the answer form.
8 (c) If
there are other liens against the judgment debtor's earnings
9 which by law have priority over
garnishments, the garnishee shall so in-
10 dicate on the answer. In such event, the
garnishment shall remain in
11 effect but no earnings of the debtor shall
be withheld under the garnish-
12 ment order unless and until all of the
other liens having priority are re-
13 leased or satisfied or the earnings being
withheld under all of such liens
14 are less than the amount which is exempt
under K.S.A. 60-2310, and
15 amendments thereto.
16 New Sec.
56. (a) No later than 10 days after the garnishee makes
the
17 answer and sends it to the judgment
creditor and judgment debtor, the
18 judgment creditor or judgment debtor, or
both, may file a reply disputing
19 any statement in the answer of the
garnishee. A copy of the reply shall
20 be sent by the party filing same to the
other party, to any other judgment
21 creditors affected and to the garnishee.
The party filing the reply shall
22 notify the court and schedule a hearing on
the reply to be held within 30
23 days after filing of the reply.
24 (b) At the
hearing, the court shall determine and rule on all issues
25 related to the reply. The burden of proof
shall be upon the party filing
26 the reply to disprove the statements of the
answer, except that the gar-
27 nishee shall have the burden of proving
offsets or indebtedness claimed
28 to be due from the judgment debtor to the
garnishee, or liens asserted
29 by the garnishee against personal property
of the judgment debtor. The
30 provisions of K.S.A. 60-719, and amendments
thereto, relating to offsets
31 claimed by the garnishee shall be
applicable to lawsuits filed pursuant to
32 the code of civil procedure for limited
actions.
33 New Sec.
57. If the garnishment is to attach property other than
34 earnings of the judgment debtor, after 10
days following receipt of the
35 answer of the garnishee by the judgment
creditor, and no reply to the
36 answer has been filed, the judgment
creditor shall direct the garnishee
37 to pay to the judgment creditor such amount
that the garnishee is holding
38 as indicated by the answer, or such lesser
amount if the circumstances
39 warrant. If the garnishee is holding
property other than money, the judg-
40 ment creditor shall direct the garnishee to
deliver the property to the
41 judgment creditor. If through garnishment,
the claim is overpaid to the
42 judgment creditor, the judgment creditor
shall promptly refund to the
43 judgment debtor any such overpayment.
25
1 New Sec.
58. This section shall apply if the garnishment is to
attach
2 earnings of the judgment debtor. If
no reply is made to the answer of
3 garnishee within 10 days following
the date the garnishee has completed
4 the answer, the garnishee shall
promptly thereafter pay the earnings with-
5 held as indicated on the answer to
all judgment creditors designated on
6 the answer in the amount due each as
indicated on the answer, unless
7 the garnishee receives prior to such
payment an order of the court to the
8 contrary. If any judgment creditor
receives more than they are entitled
9 to, that judgment creditor shall
promptly pay the excess amount pro-rata
10 to the other judgment creditors designated
on the answer, or if no such
11 other judgment creditors are designated,
the judgment creditor shall
12 promptly pay the excess amount to the
judgement debtor.
13 New Sec.
59. If the garnishee fails to answer within the time and
14 manner specified in the order of
garnishment, the judgment creditor may
15 file a motion and shall send a copy of the
motion to the garnishee and
16 the judgment debtor in the manner allowed
under sections 7 through 18,
17 and amendments thereto. At the hearing on
the motion, the court may
18 grant judgment against the garnishee for
the amount of the judgment
19 creditor's judgment or claim against the
judgment debtor or for such
20 other amount as the court deems reasonable
and proper, and for the
21 expenses and attorney fees of the judgment
creditor. If the claim of the
22 plaintiff has not been reduced to judgment,
the liability of the garnishee
23 shall be limited to the judgment ultimately
rendered against the judgment
24 debtor.
25 New Sec.
60. If after the time the garnishee is to make payment of
26 funds or property held under a garnishment,
the garnishee fails or refuses
27 to pay or deliver property to the judgment
creditor, the judgment creditor
28 may file a motion and shall send a copy of
the motion to the garnishee
29 and the judgment debtor in the manner
allowed under sections 7 through
30 18, and amendments thereto. At the hearing
on the motion, the court
31 may find the garnishee in contempt and
punish the garnishee by a fine
32 or imprisonment in the county jail or both,
or may enter judgment against
33 the garnishee for such amount as the court
deems reasonable and proper,
34 including the expenses and attorney fees of
the judgment creditor.
35 New Sec.
61. The provisions of K.S.A. 60-721, 60-722, 60-723 and
36 60-724, and amendment thereto, shall be
applicable to lawsuits filed pur-
37 suant to the code of civil procedure for
limited actions.
38 New Sec.
62. The provisions of K.S.A. 60-262, and amendments
39 thereto, shall apply to judgments entered
under the code of civil proce-
40 dure for limited actions, except as to
judgments entered in eviction law-
41 suits under sections 79 through 86, and
amendments thereto. A judgment
42 entered in an eviction lawsuit may be
enforced as soon as it is entered.
43 New Sec.
63. General and special executions or orders of sale upon
26
1 judgments entered under the code of
civil procedure for limited actions
2 shall be taken in the manner provided
in article 24 of chapter 60 of the
3 Kansas Statutes Annotated, and
amendments thereto. Executions and or-
4 ders of sale issued hereunder may be
levied upon real property as pro-
5 vided under the appropriate
provisions of chapter 60 of the Kansas Stat-
6 utes Annotated, and amendments
thereto.
7 New Sec.
64. (a) Judgments rendered under the code of civil pro-
8 cedure for limited actions shall be a
lien on the real estate of the judgment
9 debtor within the county in which the
judgment is rendered. Except as
10 modified herein, the provisions of K.S.A.
60-2201, subsection (a) of K.S.A.
11 60-2202 and 60-2203a, and amendments
thereto, shall apply to actions
12 and judgments filed under the code of civil
procedure for limited actions.
13 (b) Judgments
previously rendered under chapter 61 of the Kansas
14 Statutes Annotated and amendments thereto
may be made a lien upon
15 real estate if a party in whose favor a
judgment is rendered under chapter
16 61 of the Kansas Statutes Annotated, shall
file a notice with the clerk to
17 have such judgment be made a lien against
the real estate of the judgment
18 debtor within the county in which the
judgment was rendered. The form
19 of the notice shall be prescribed by rule
of the supreme court of this state.
20 Thereafter, such judgment shall be a lien
on the real estate of the judg-
21 ment debtor within the county in which the
judgment is rendered just as
22 if the judgment had been rendered under
this act, and the provisions of
23 K.S.A. 60-2201, subsection (a) of K.S.A.
60-2202 and 60-2203a, and
24 amendments thereto, shall thereafter apply
to such judgment.
25 New Sec.
65. The provisions of article 23 of chapter 60 of the
Kansas
26 Statutes Annotated, and amendments thereto,
relating to exemptions
27 from seizure and sale, shall apply to
attachments, executions and other
28 process issued from any court in this state
pursuant to the code of civil
29 procedure for limited actions.
30 New Sec.
66. (a) As an aid to the collection of a judgment, the
judg-
31 ment creditor is entitled to have an order
for a hearing in aid of execution
32 issued by the court at any time after 10
days after judgment. There is no
33 requirement that an execution first be
issued and returned unsatisfied.
34 No application for such order needs to be
filed except as specially re-
35 quired in this section.
36 (b) An order for
a hearing in aid of execution may be issued at the
37 request of a judgment creditor in an
individual case or by a master request
38 covering more than one case, and shall
require the judgment debtor to
39 appear and furnish information under oath
or penalty of perjury when
40 required by the court concerning the
debtor's property and income be-
41 fore the court at a time and place
specified in the order within the county
42 where the court is situated. The form of
the order shall be set forth in
43 rules of the supreme court of this state.
The court may cancel the hearing
27
1 if the judgment debtor has furnished
to the judgment creditor satisfactory
2 information concerning the debtor's
property and income prior to the
3 date and time for the hearing.
Witnesses may also be subpoenaed to
4 testify at the hearing.
5 (c) If the
judgment debtor resides in another county in this state or
6 outside of this state, the court can
order such judgment debtor to appear
7 if the court finds that it will not
cause undue hardship on the judgment
8 debtor to appear.
9 (d) It
shall be the duty of the judge to assist in the enforcement of
10 the judgments of the court. To this end, at
any hearing in aid of execution,
11 when the existence of any nonexempt
property of the judgment debtor
12 is disclosed, the court shall order the
judgment debtor to deliver the
13 property to the sheriff or a duly appointed
process server. If the property
14 is other than currency, the property shall
be sold in the same manner as
15 other property taken under execution is
sold and the proceeds from the
16 sale shall be applied to the judgment and
costs.
17 New Sec.
67. If a judgment debtor appears pursuant to an order for
18 a hearing in aid of execution, the court
may order the debtor to return
19 to court from time to time to furnish
current information under the pro-
20 cedure set forth in section 66, and
amendments thereto. To avoid un-
21 necessary filings, the court shall adopt a
policy limiting the frequency
22 with which the judgment debtor may be
ordered to return to court. Such
23 policy shall provide that a judgment debtor
who has made regular pay-
24 ments as agreed between the parties, or who
is found to be disabled and
25 otherwise unable to pay, shall not be
required to return to court more
26 frequently than yearly.
27 New Sec.
68. If a person fails to appear in response to an order
for
28 a hearing in aid of execution, or if a
person who has been subpoenaed to
29 testify at the hearing fails to appear or
to testify concerning anything about
30 which the person can lawfully be
questioned, the court shall issue a ci-
31 tation for contempt to that person
providing that the person must either:
32 (a) Contact the
judgment creditor or attorney within 10 days to fur-
33 nish information under oath or penalty of
perjury concerning the judg-
34 ment debtor's property and income; or
35 (b) appear in
court at a date and time specified to show cause why
36 the debtor should not be held in contempt
and punished for con-
37 tempt.The form of the citation for contempt
shall be set forth in rules of
38 the supreme court of this state. The
citation for contempt does not need
39 to be supported by affidavit or other
verification.
40 New Sec.
69. If on hearing, the court determines that a judgment
41 debtor is guilty of contempt, the court may
punish the person by a fine
42 in an amount to be set by the court or by
imprisonment in the county jail
43 for a period of not to exceed 30 days, or
both. The court may also order
28
1 the person guilty of contempt to pay
the reasonable attorney fees incurred
2 by the judgment creditor at the
hearing.
3 New Sec.
70. (a) If a person fails to comply with the either of the
4 requirements of section 68, and
amendments thereto, or if it appears to
5 the court that the person is hiding
to avoid the process of the court or is
6 about to leave the county for that
purpose, the court may issue a bench
7 warrant commanding the sheriff to
whom it is directed to bring such
8 person before the court to answer for
contempt. The bench warrant does
9 not need to be supported by affidavit
or other verification. The court may
10 make such orders concerning the release of
the person pending the hear-
11 ing as the court deems proper.
12 (b) When such
person is brought before the court, a hearing shall be
13 held to determine if the person should be
punished for contempt. If the
14 court determines that the person is guilty
of contempt, the court may
15 punish the person by a fine in an amount to
be set by the court or by
16 imprisonment in the county jail for a
period of not to exceed 30 days, or
17 both. The court may also order the person
guilty of contempt to pay the
18 reasonable attorney fees incurred by the
judgment creditor in the filing
19 of the bench warrant and the hearing
thereon.
20 New Sec.
71. If the judgment debtor is employed in this state and
21 either the debtor is a nonresident of this
state or the place of residence
22 is unknown, the order for a hearing in aid
of execution and citation for
23 contempt may be served on the judgment
debtor at the place of employ-
24 ment. The order or citation may direct that
an officer, partner, managing
25 or general agent, or the person having
charge of the office or place of
26 employment at which the judgment debtor is
employed shall make the
27 judgment debtor available for the purpose
of permitting the order or
28 citation to be served on the judgment
debtor at the place of employment.
29 New Sec.
72. The provisions of K.S.A. 60-2403 and 60-2404, and
30 amendments thereto, shall apply to
judgments entered under the code
31 of civil procedure for limited actions.
32 New Sec.
73. Any person who claims to have succeeded to the in-
33 terest of the holder of a judgment by
appointment as personal represen-
34 tative for a deceased or incompetent
judgment holder, by assignment, by
35 operation of law, or otherwise, shall file
a notice setting forth the basis
36 for their claim, and thereafter such
successor in interest shall be entitled
37 to all the rights and remedies available to
such successor's predecessor
38 and may proceed to enforce the same in such
successor's own name as
39 such successor. It shall not be necessary
to file with the clerk the docu-
40 ments which form the basis for the claim.
If the validity of any such
41 transfer is disputed by any party affected
thereby, the court shall on rea-
42 sonable notice to all interested parties
whose whereabouts are known,
43 determine the respective rights and
liabilities of all the parties.
29
1 New Sec.
74. Upon the commencement of an action, the plaintiff
2 may recover possession of specific
personal property before or after
3 judgment.
4 (a) Claim
for possession of property. A plaintiff may seek an order to
5 obtain possession of specific
personal property as follows: Petition. The
6 plaintiff shall file a petition
stating:
7
(1) Plaintiff is the owner or the person lawfully entitled to
the pos-
8 session, the specific property and
the factual basis for the claim;
9 (2) a
description of the property;
10 (3) the property
is wrongfully detained by the defendant, or is held
11 by an officer under legal process who has
refused delivery on demand;
12 and
13 (4) the estimated
value of the property.
14 (b) Prejudgment
possession of property. A plaintiff may seek an order
15 to obtain immediate possession of specific
personal property, before judg-
16 ment as follows: Petition. The plaintiff
shall file a petition signed under
17 penalty of perjury stating:
18 (1) Plaintiff is
the owner or the person lawfully entitled to the pos-
19 session, the specific property, and the
factual basis for the claim;
20 (2) a description
of the property;
21 (3) the property
is wrongfully detained by the defendant, or is held
22 by an officer under legal process who has
refused delivery on demand;
23 and
24 (4) the estimated
value of the property.
25 (c) Hearing;
notice, bond. After filing the petition, the plaintiff may
26 apply to the court for an order for the
delivery of the property prior to
27 judgment on the merits of the case.
28 (1) The
application to the court for an order shall be by motion which,
29 unless made during a hearing or trial,
shall be made in writing, state with
30 particularity the grounds therefor and set
forth the relief or order sought.
31 (2) The petition
and application shall be served upon the defendant
32 pursuant to sections 19 through 24, and
amendments thereto.
33 (3) After a
hearing and presentation of evidence on plaintiff's motion,
34 and if the judge is satisfied as to the
probable validity of plaintiff's claim
35 and that delivery of the property to the
plaintiff is in the interest of justice
36 and will properly protect the interests of
all the parties, the judge may
37 enter or cause to be entered an order for
the delivery of the property to
38 the plaintiff.
39 (4) Prior to the
issuance of the order for delivery of the property, the
40 plaintiff shall file a bond with the clerk
of the court.
41 (d) Bond;
contents, insufficiency.
42 (1) The bond
shall be executed by the plaintiff and one or more suf-
43 ficient sureties in a sum double the amount
of the fair market value of
30
1 the property, as determined by the
judge, or such lesser amount as shall
2 be approved by an order of the
judge.
3 (2) The
bond shall be to the effect that the plaintiff shall duly pros-
4 ecute the action, and pay all costs
and damages that may be awarded
5 against the plaintiff, and that if
the plaintiff is given possession of the
6 property the plaintiff will return it
to the defendant if it be so adjudged.
7 If the bond shall be found to be
sufficient, the judge shall approve the
8 same and note approval thereon.
9 (3) The
defendant may challenge the sufficiency of the bond as pro-
10 vided in subsection (b) of K.S.A.
60-705, and amendments thereto.
11 (4) The court
shall release the bond, if the plaintiff abandons the right
12 to take possession of the property, prior
to taking possession of the
13 property.
14 (e) Replevin;
without hearing, notice. Notwithstanding the foregoing
15 provisions of this section, the judge may
enter or cause to be entered the
16 order for delivery of property after an ex
parte hearing and without notice
17 to and the opportunity for a hearing by the
defendant, if the judge is
18 satisfied as to the probable validity of
the following additional allegations
19 to be contained in plaintiff's
petition:
20 (1) Possession of
the property by the plaintiff is directly necessary to
21 secure an important governmental or general
public interest; and
22 (2) there is a
special need for very prompt action due to the imme-
23 diate danger that the defendant will
destroy or conceal the property.
24 (f) Property in
custodia legis. If the property is in the custody of an
25 officer under any legal process, it shall
nevertheless be subject to replevin
26 under this section, but if the same is in
the custody of any officer under
27 any process issued out of a judicial
proceeding, the petition and bond
28 shall be filed in the same proceeding out
of which such process issued.
29 (g) Order for
delivery of property. The order for the delivery of the
30 property to the plaintiff shall be
delivered to the appropriate officer or
31 person authorized to serve process of any
county in the state in which the
32 property is located. The order shall state
the names of the parties, the
33 description of the property and the value
as set out in plaintiff's petition,
34 or as found by the court at the hearing on
plaintiff's application pursuant
35 to subsection (c). The order shall command
the appropriate officer to
36 take immediate possession of the property
and deliver it to the plaintiff
37 and make return of the order on the day
named therein.
38 (h) Execution of
order, return. (1) In the execution of the order the
39 officer may break open any building or
enclosure in which the property
40 is located, if the officer cannot otherwise
obtain possession of the property
41 or entrance to the building on demand.
42 (2) The
appropriate officer shall execute the order by taking posses-
43 sion of the property described therein, and
serving a copy on the person
31
1 charged with the order of delivery in
the same manner as for personal or
2 resident service if the person can be
found in the county.
3 (3) The
return day of the order of delivery shall be 10 days after it
is
4 issued, if the order is executed
within the county where the court is sit-
5 uated. In all other cases, the return
day shall be 20 days after the order
6 is issued.
7 (4) The
plaintiff shall have the right to attend execution of the
order.
8 Upon inspection of the property the
plaintiff may abandon their right to
9 prejudgment possession and shall so
advise the appropriate officer and
10 the court.
11 (i) Perishable
goods. When property shall be actually seized which is
12 likely to perish or to materially
depreciate in value or threatens to decline
13 speedily in value before the probable
termination of the suit, or the keep-
14 ing of which would be attended with
unreasonable loss or expense, the
15 court may order the same to be sold on such
terms and conditions as the
16 judge may direct, by the person having
charge of the property, and a
17 return of the proceedings thereon shall be
made by the person at a time
18 to be fixed by the judge.
19 (j) Redelivery,
bond. The defendant, after service of a copy of the
20 delivery order, may apply to the court for
redelivery of the property. The
21 court shall order return of the property to
the defendant when the de-
22 fendant files a bond with the clerk of the
court, in an amount equal to
23 the plaintiff's bond, executed by the
defendant with one or more sufficient
24 sureties. The bond shall be to the effect
that the defendant will deliver
25 the property to the plaintiff if so
adjudged, and will pay all costs and
26 damages that may be adjudged against the
defendant. If the bond shall
27 be found to be sufficient, the judge shall
approve the same and note
28 approval thereon. If the defendant is a
public officer, board or govern-
29 ment agency, such officer, board or agency,
in lieu of giving a redelivery
30 bond, may retain possession of the property
seized by filing with the clerk
31 a response certifying that the public
health, safety or welfare would be
32 jeopardized or impaired if the plaintiff
acquired possession of the prop-
33 erty prior to final judgment, in which case
hearing may be had on the
34 issue of public interest at the instance of
any party.
35 (k) Judgment in
action. (1) In an action to recover the possession of
36 personal property, judgment for the
plaintiff may be for possession or for
37 the recovery of possession, or the value
thereof in case a delivery cannot
38 be had, and for damages for the detention.
If the property has been
39 delivered to the plaintiff and the
defendant claims a return thereof, judg-
40 ment for the defendant may be for a return
of the property, or the value
41 thereof in case a return cannot be had, and
damages for taking and with-
42 holding the same.
43 (2) In addition
to other orders, the court may direct an appropriate
32
1 officer to put the party entitled to
possession in possession of the property.
2 New Sec.
75. A plaintiff may bring an action to reduce an indebt-
3 edness to a money judgment and to
foreclose the security interest in
4 specific personal property given to
secure such indebtedness. The plain-
5 tiff, at any time before judgment is
rendered, may obtain immediate pos-
6 session of the specified property as
follows:
7 (a) Petition.
The plaintiff shall file a petition signed under penalty of
8 perjury stating:
9 (1) The
plaintiff is the secured creditor of the defendant;
10 (2) the
instrument of indebtedness or the terms thereof;
11 (3) the amount of
the indebtedness owed;
12 (4) the security
agreement or the terms thereof;
13 (5) a description
of the personal property;
14 (6) that
plaintiff is lawfully entitled to the foreclosure of the
specific
15 personal property;
16 (7) the estimated
value of each item of personal property; and
17 (8) the defendant
is no longer entitled to possess the property.
18 (b) Prejudgment
possession; hearing, notice, bond. After filing the
19 petition, the plaintiff may apply to the
court for an order for the delivery
20 of the property before judgment.
21 (1) The
application to the court for an order of delivery shall be by
22 motion which, unless made during a hearing
or trial, shall be made in
23 writing, state with particularity the
grounds therefor and set forth the
24 relief or order sought.
25 (2) The petition
and application shall be served upon the defendant
26 pursuant to sections 19 through 24, and
amendments thereto.
27 (3) After a
hearing and presentation of evidence on the plaintiff's
28 motion, if the judge is satisfied as to the
probable validity of the plaintiff's
29 claim and that delivery of the property to
the plaintiff is in the interest
30 of justice and will properly protect the
interests of all the parties, the
31 judge may enter or cause to be entered an
order for the delivery of the
32 property to the plaintiff.
33 (4) Prior to the
issuance of the order for delivery of the property, the
34 plaintiff shall file a bond with the clerk
of the court.
35 (c) Bond,
contents, insufficiency. (1) The bond shall be executed by
36 the plaintiff and one or more sufficient
sureties in a sum double the
37 amount of the fair market value of the
property, as determined by the
38 judge, or such lesser amount as shall be
approved by an order of the
39 judge.
40 (2) The bond
shall be to the effect that plaintiff shall duly prosecute
41 the action, and pay all costs and damages
that may be awarded against
42 the plaintiff, and that if the plaintiff is
given possession of the property
43 the plaintiff will return it to the
defendant if it be so adjudged. If the
33
1 bond shall be found to be sufficient,
the judge shall approve the same
2 and note approval thereon.
3 (3) The
defendant may challenge the sufficiency of the bond as pro-
4 vided in subsection (b) of K.S.A.
60-705, and amendments thereto.
5 (4) The
court shall release the bond, if the plaintiff abandons the
right
6 to take possession of the property,
prior to taking possession of the
7 property.
8
(d) Execution of order, return. (1) In the execution of the
order the
9 officer may break open any building
or enclosure in which the property
10 is located, if the officer cannot otherwise
obtain possession of the property
11 or entrance to the building on demand.
12 (2) The
appropriate officer shall execute the order by taking posses-
13 sion of the property described therein, and
serving a copy on the person
14 charged with the order of delivery in the
same manner as for personal or
15 resident service if the person can be found
in the county.
16 (3) The return
day of the order of delivery shall be 10 days after it is
17 issued, if the order is executed within the
county where the court is sit-
18 uated. In all other cases, the return day
shall be 20 days after the order
19 is issued.
20 (4) The plaintiff
shall have the right to attend execution of the order.
21 Upon inspection of the property the
plaintiff may abandon their right to
22 prejudgment possession and shall so advise
the appropriate officer and
23 the court.
24 (e) Perishable
goods. When property shall be actually seized which
25 is likely to perish or to materially
depreciate in value or threatens to
26 decline speedily in value before the
probable termination of the suit, or
27 the keeping of which would be attended with
unreasonable loss or ex-
28 pense, the court may order the same to be
sold on such terms and con-
29 ditions as the judge may direct, by the
person having charge of the prop-
30 erty, and a return of the proceedings
thereon shall be made by the person
31 at a time to be fixed by the judge.
32 (f) Redelivery,
bond. The defendant, after service of a copy of the
33 delivery order, may apply to the court for
redelivery of the property. The
34 court shall order return of the property to
the defendant when the de-
35 fendant files a bond with the clerk of the
court, in an amount equal to
36 the plaintiff's bond, executed by the
defendant with one or more sufficient
37 sureties. The bond shall be to the effect
that the defendant will deliver
38 the property to the plaintiff if so
adjudged, and will pay all costs and
39 damages that may be adjudged against the
defendant. If the bond shall
40 be found to be sufficient, the judge shall
approve the same and note
41 approval thereon. If the defendant is a
public officer, board or govern-
42 ment agency, such officer, board or agency,
in lieu of giving a redelivery
43 bond, may retain possession of the property
seized by filing with the clerk
34
1 a response certifying that the public
health, safety or welfare would be
2 jeopardized or impaired if the
plaintiff acquired possession of the prop-
3 erty prior to final judgment, in
which case a hearing may be had on the
4 issue of public interest at the
instance of any party.
5
(g) Possession in third party. When the officer finds the
property in
6 possession of a person other than a
defendant and deems it advisable to
7 leave such person in possession, the
officer shall declare to the person in
8 possession that such person shall
hold such property in such person's
9 possession, subject to the further
order of the court, and shall summon
10 such person as a garnishee by serving upon
such person a copy of the
11 order which directs the officer to take
immediate possession of the prop-
12 erty. The court may require of such person
in possession an undertaking
13 with good and sufficient sureties in such
sum as the court deems suffi-
14 cient. The undertaking shall be to the
effect that such person will deliver
15 the property to the officer at the time and
place fixed for sale, if such be
16 ordered by the court. The officer shall
give such person written notice of
17 the time and place fixed for the sale by
delivery in person or by restricted
18 mail.
19 (g) Property
claimed by third person. If the officer, before proceed-
20 ing, may require the possession of, or be
requested by the plaintiff to take
21 possession of, personal property claimed by
any person other than a de-
22 fendant, the court may require the
plaintiff to give the court an under-
23 taking with good and sufficient sureties to
pay all costs and damages that
24 the officer may sustain by reason of the
execution of such order.
25 (h) Judgment.
Judgment for the plaintiff shall be for a money judg-
26 ment and foreclosure of the security
interest, and the plaintiff may pro-
27 ceed to foreclose the security interest in
accordance with the terms of
28 the security agreement covering the
property, as governed by the provi-
29 sions of the uniform commercial code,
unless the court otherwise directs.
30 If the court directs the plaintiff to
proceed to enforce such plaintiff's
31 judgment other than pursuant to the
security agreement, and if the judg-
32 ment is not satisfied within 10 days
thereafter, then the clerk shall issue
33 an order of special execution directed to
the appropriate officer to sell
34 the property in accordance with section 76,
and amendments thereto. If
35 the property is not then in the possession
of the officer, the order shall
36 also direct the person having possession to
deliver such property to the
37 officer. If the property has been delivered
to the officer, and the defend-
38 ant claims a return thereof, judgment shall
be for the defendant or a
39 return of the property and damages for the
taking and withholding of
40 same.
41 New Sec.
76. (a) Any sale conducted under the provisions of this
42 section shall be subject to the provisions
of K.S.A. 60-2406, and amend-
43 ments thereto, except that the disposition
of proceeds after the satisfac-
35
1 tion of senior security interests or
liens shall be made in accordance with
2 the provisions of section 78, and
amendments thereto. The officer who
3 shall be directed to sell the
personal property, before the officer proceeds
4 to sell the same, shall cause public
notice to be given of the time and
5 place of sale, at least 10 days
before the day of sale. The notice shall be
6 given by publication at least once
each week for two consecutive weeks
7 in any newspaper published in the
county, and which is qualified to carry
8 legal publications, or, in the
discretion of the court, by posting notices in
9 five public places in the county, one
of which shall be on a bulletin board
10 established for public notices in the
county courthouse. Within five days
11 of the date of first publication or posting
of notice, plaintiff shall send by
12 restricted mail a copy of such notice to
the defendant and to those persons
13 known by the plaintiff to have a security
interest in the property. Such
14 notice shall be sent to the last known
address of the person to whom sent
15 and shall be in compliance with paragraph
(26) of K.S.A. 84-1-201, and
16 amendments thereto. If the personal
property cannot be sold at the spe-
17 cial execution sale for want of bidders,
the plaintiff may direct the officer
18 to return the special execution showing
that fact or, at the plaintiff's op-
19 tion, may report the same to the judge and
obtain an order permitting a
20 second sale under the same special
execution and an extension of the
21 return day of the special execution if that
be necessary.
22 (b) If the
personal property to be sold shall consist of more than one
23 item of property, the appropriate officer
conducting such sale shall sell
24 only so much of the personal property in
the officer's custody as is nec-
25 essary to satisfy the judgment, interest
and costs, and shall return the
26 balance of any property remaining unsold to
the defendant by notifying
27 the defendant of the time and place when
same may be obtained.
28 (c) Neither the
officer conducting the sale nor any other member of
29 the officer's staff may bid at any such
sale.
30 (d) The
provisions of K.S.A. 60-2411, and amendments thereto, re-
31 lating to advancement of printer's fees
shall apply to this section.
32 New Sec.
77. Upon sale of such property, the appropriate officer
33 shall make a return of such sale to the
clerk of the court, together with
34 an itemization of the officer's expenses of
sale. The court, upon finding
35 the proceedings regular and in conformity
with law, shall confirm the
36 same, and order the officer to make to the
purchaser a certificate of sale.
37 The certificate of sale shall accurately
describe the property sold, name
38 the purchaser and recite the facts of the
sale. If a certificate of title is
39 obtainable for such property under the laws
of this state, the description
40 of the property shall include the year,
make, style and identification num-
41 ber of such property. A certificate of sale
shall vest title to the property
42 in the purchaser.
43 New Sec.
78. (a) Upon the sale of personal property by the appro-
36
1 priate officer, the clerk of the
court shall apply the proceeds of sale in
2 the following priority:
3 (1) To the
court costs of the action including the officer's expenses
4 and cost of publication;
5 (2) in
accordance with the provisions of K.S.A. 60-2406, and amend-
6 ments thereto;
7 (3) in
satisfaction of all judgments rendered in the action against
the
8 defendant or the property in
accordance with the priority determined by
9 the court;
10 (4) any surplus
shall be paid to the defendant, except that if any other
11 security interest holder, subsequent to the
entering of the judgment of
12 foreclosure, files with the clerk of the
court a written notification of de-
13 mand furnishing reasonable proof of the
security interest holder's inter-
14 est, the clerk shall withhold any payment
to the defendant. Such security
15 interest holder shall serve the defendant
with notice of the demand within
16 10 days after such filing and furnish proof
of such notice to the court.
17 (b) If the
defendant does not, within 10 days, notify the clerk in writ-
18 ing that the defendant takes exception to
the demand of such security
19 interest holder, the clerk shall apply the
surplus to the demand and pay
20 any balance to the defendant.
21 (c) If the
defendant, within 10 days, notifies the clerk in writing that
22 the defendant takes exception to the
demand, the clerk shall withhold all
23 surplus in the clerk's possession for a
period of 30 days. If the security
24 interest holder has not commenced a
separate action to recover the se-
25 curity interest holder's claim and
garnished the clerk within the time, the
26 clerk shall pay the surplus to the
defendant.
27 New Sec.
79. Sections 79 through 86, and amendments thereto, shall
28 govern lawsuits brought to evict a person
from possession of real property
29 or of an interest in real property.
30 New Sec.
80. A judgment in a lawsuit brought under sections 79
31 through 86, and amendments thereto, shall
not be a bar to any subsequent
32 lawsuit brought by either party for claims
not included in such judgment.
33 New Sec.
81. Before a lawsuit to evict a person pursuant to
sections
34 79 through 86, and amendments thereto, is
filed, the party desiring to
35 file such lawsuit shall deliver to the
other party a notice to leave the
36 premises for which possession is sought.
The notice shall be delivered at
37 least three days before commencing the
lawsuit, by leaving a written copy
38 with the other party or by leaving a copy
thereof with any person over
39 the age of 12 years residing on the
premises described in such notice, or
40 if no such person is found upon the
premises, by posting a copy of such
41 notice in a conspicuous place thereon, or
by mailing a copy of the notice
42 to the other party at the address of the
premises described in the notice.
43 The three day notice period provided for in
this section shall be computed
37
1 as three consecutive 24-hour periods
to commence at the time the notice
2 is delivered, posted or mailed. If
the notice is mailed, an additional two
3 days from the date of mailing shall
be allowed for the person to leave the
4 premises before the lawsuit is filed.
Intermediate Saturdays, Sundays and
5 legal holidays shall be included in
the computation of the notice period.
6 The form of the notice shall be
substantially in the form set forth in the
7 rules of the supreme court of this
state.
8 New Sec.
82. The petition shall describe the premises for which
pos-
9 session is sought and why the
plaintiff is seeking possession. If there is
10 rent due for possession of the premises,
the petition may include a request
11 for judgment for that amount or the
plaintiff may bring a subsequent
12 lawsuit for that amount. The form of the
petition shall be set forth in the
13 rules of the supreme court of this
state.
14 New Sec.
83. The form of summons in lawsuits under sections 79
15 through 86, and amendments thereto, shall
be the same as for other
16 lawsuits filed under the code of civil
procedure for limited actions. The
17 time stated in the summons requiring the
defendant to appear in response
18 to the petition shall be determined by the
court. Such time shall be not
19 less than three nor more than 14 days after
the date the summons is
20 issued.
21 New Sec.
84. A defendant shall either appear in person or by
counsel
22 at the time and date set forth in the
summons or file on or before such
23 date a written answer. The answer shall
contain the information as re-
24 quired under subsection (b) of section 10,
and amendments thereto.
25 New Sec.
85. (a) If a trial is necessary, the trial shall be
conducted
26 within eight days after the appearance date
stated in the summons.
27 (b) No
continuance shall be granted unless the defendant requesting
28 a continuance shall file a bond with good
and sufficient security approved
29 by the court, conditioned for the payment
of all damages and rent that
30 may accrue if judgment is entered against
the defendant.
31 New Sec.
86. (a) If judgment is entered against the defendant for
32 possession of the subject premises, the
court shall issue, at the request of
33 the plaintiff, a writ of restitution which
shall direct anyone who is au-
34 thorized to serve process and who is named
in the writ to place the plain-
35 tiff in possession of the premises
described in the writ. The form of the
36 writ shall be set forth in the rules of the
supreme court of this state.
37 (b) The writ of
restitution shall be executed within 10 days after the
38 person named in the writ receives it, and
that person shall file a return
39 as with other writs under the code of civil
procedure for limited actions.
40 The person serving the writ may use such
reasonable force as is necessary
41 to execute the writ.
42 (c) If the person
named in the writ receives a notice from the court
43 that the proceedings have been stayed by
appeal, that person shall im-
38
1 mediately delay all further
proceedings upon the execution. If the prem-
2 ises have been restored to the
plaintiff, the person named in the writ shall
3 immediately place the defendant in
the possession thereof.
4 New Sec.
87. Any party to a civil action pursuant to the code of
civil
5 procedure for limited actions may
appeal from:
6 (a) A final
judgment, except a judgment rendered on confession;
7 (b) any
order, ruling or decision which determines the action at any
8 stage of the proceedings;
9 (c) any
order, ruling or decision that sustains or overrules a motion
10 to dissolve an attachment or to discharge a
garnishment; or
11 (d) any order,
ruling or decision that sustains or overrules a motion
12 to vacate the levy under an execution on
property claimed to be exempt
13 under the laws of this state.
14 New Sec.
88. (a) All appeals from orders, rulings, decisions or
judg-
15 ments of district magistrate judges under
the code of civil procedure for
16 limited actions shall be taken in the
manner provided in subsection (a) of
17 K.S.A. 60-2103a, and amendments thereto.
All appeals from orders, rul-
18 ings, decisions or judgments of district
judges under the code of civil
19 procedure for limited actions shall be
taken in the manner provided in
20 subsections (a) and (b) of K.S.A. 60-2103,
and amendments thereto. Not-
21 withstanding the foregoing provisions of
this subsection, if judgment has
22 been rendered in an action for forcible
detainer and the defendant desires
23 to appeal from that portion of the judgment
granting restitution of the
24 premises, notice of appeal shall be filed
within five days after entry of
25 judgment. The notice of appeal shall
specify the party or parties taking
26 the appeal; the order, ruling, decision or
judgment appealed from; and
27 the court to which the appeal is taken.
28 (b) The
provisions of K.S.A. 60-2001, and amendments thereto, shall
29 apply to appeals pursuant to this
section.
30 (c) An appeal
from an action heard by a district magistrate judge shall
31 be taken to a district judge of the county.
An appeal from an action heard
32 by a district judge shall be taken to the
court of appeals.
33 New Sec.
89. Subject to the rules of the supreme court of this
state,
34 once an appeal is perfected, if the judge
from whom such appeal is taken
35 is a district magistrate judge, such judge
shall notify the chief judge of
36 the judicial district that the appeal has
been perfected. The chief judge
37 then shall assign the case to a district
judge to hear the appeal.
38 New Sec.
90. No execution shall issue upon a judgment, nor shall
39 proceedings be taken for its enforcement,
until the expiration of 10 days
40 after its entry. If an appellant does not
file a supersedeas bond as provided
41 in the code of civil procedure for limited
actions, the taking of an appeal
42 shall not operate to stay proceedings for
the enforcement of a final judg-
43 ment or to take execution thereon. Nothing
in this section shall be con-
39
1 strued as limiting any power of a
judge hearing such appeal to stay pro-
2 ceedings during the pendency of an
appeal, to grant an injunction during
3 the pendency of such appeal or to
make any other appropriate order to
4 preserve the status quo or the
effectiveness of the judgment subsequently
5 to be rendered.
6 New Sec.
91. (a) Whenever an appellant entitled thereto desires a
7 stay on appeal from an action
pursuant to the code of civil procedure for
8 limited actions, such appellant may
present to the judge from which the
9 appeal is taken, for the judge's
approval, a supersedeas bond which shall
10 have such surety or sureties as the judge
requires. The bond may be given
11 at or after the time of filing the notice
of appeal, and the stay is effective
12 when the supersedeas bond is approved by
the judge. Such bond shall be
13 conditioned for the satisfaction of the
judgment in full together with costs,
14 interest and damages for delay, if for any
reason the appeal is dismissed,
15 or if the judgment is affirmed; and to
satisfy in full any modification of
16 the judgment and such costs, interests and
damages as the appellate court
17 may adjudge and award.
18 (b) When the
judgment is for the recovery of money not otherwise
19 secured, the amount of the bond shall be
fixed at such sum as will cover
20 the whole amount of the judgment remaining
unsatisfied, costs on the
21 appeal, interest and damages for delay,
unless the court after notice and
22 hearing and for good cause shown fixes a
different amount or orders
23 security other than the bond. When the
judgment determines the dis-
24 position of the property in controversy as
in replevin, or when such prop-
25 erty is in the custody of the sheriff or
when the proceeds of such property
26 or a bond for its value is in the custody
or control of the court, the amount
27 of the supersedeas bond shall be fixed
after notice and hearing at such
28 sum only as will secure the amount
recovered for the use and detention
29 of the property, the costs of the action,
costs on appeal, interest and
30 damages for delay. When an order is made
discharging, vacating or mod-
31 ifying a provisional remedy, a party
aggrieved thereby shall be entitled,
32 upon application to the judge, to have the
operation of such order sus-
33 pended for a period of not to exceed 10
days on condition that, within
34 the period of 10 days, such party shall
file notice of appeal and obtain the
35 approval of such supersedeas bond as is
required under this section.
36 (c) In lieu of a
supersedeas bond, the court may condition a stay of
37 proceedings pending appeal upon the timely
payment into court of the
38 periodic rent otherwise due from the
defendant to the plaintiff under the
39 rental agreement pertaining to the real
property in issue.
40 New Sec.
92. In appeals taken by the defendant in actions for the
41 forcible detention of real property, the
supersedeas bond filed on appeal
42 shall be conditioned that the appellant
will not commit or suffer waste to
43 be committed on the premises in
controversy, and if upon appeal the
40
1 court judgment be rendered against
the appellant, the appellant will pay
2 the value of the use and occupation
of the property, from the date such
3 bond was filed until the delivery of
the property pursuant to the judgment,
4 and all damages and costs that may be
awarded against the appellant.
5 New Sec.
93. If a supersedeas bond was not filed with the notice of
6 appeal, and if the action is not yet
docketed on appeal, a bond may be
7 filed with the court from which the
appeal is taken. After the action is so
8 docketed, application for leave to
file a bond may be made only in the
9 appellate court. When the surety for
a supersedeas bond shall be insuf-
10 ficient, or such bond is insufficient in
form or amount, the appellate court
11 may on motion order a change or renewal of
such bond, and direct that
12 it be filed in such court.
13 New Sec.
94. By entering into a supersedeas bond given pursuant to
14 sections 91 and 92, and amendments thereto,
the surety submits to the
15 jurisdiction of the court wherein the
judgment becomes final, and irrev-
16 ocably appoints the clerk of such court as
the surety's agent upon whom
17 any papers affecting the surety's liability
on the bond may be served. The
18 surety's liability may be enforced on
motion without the necessity of an
19 independent action. The motion and such
notice of the motion as the
20 judge prescribes may be served on the clerk
of the court who shall forth-
21 with mail copies to the surety if the
surety's address is known.
22 New Sec.
95. If the appeal is dismissed by the judge hearing such
23 appeal, the action shall be remanded to the
judge from which such appeal
24 was taken.
25 New Sec.
96. (a) Docket fee. No case shall be filed or docketed
pur-
26 suant to the code of civil procedure for
limited actions without the pay-
27 ment of a docket fee in the amount of
$19.50, if the amount in controversy
28 or claimed does not exceed $500; $39.50, if
the amount in controversy or
29 claimed exceeds $500 but does not exceed
$5,000; or $64.50, if the
30 amount in controversy or claimed exceeds
$5,000. If judgment is ren-
31 dered for the plaintiff, the court also may
enter judgment for the plaintiff
32 for the amount of the docket fee paid by
the plaintiff.
33 (b) Poverty
affidavit; additional court costs. The provisions of subsec-
34 tions (b), (c) and (d) of K.S.A. 60-2001,
and amendments thereto, shall
35 be applicable to lawsuits brought under the
code of civil procedure for
36 limited actions.
37 New Sec.
97. The provisions of K.S.A. 60-2002, 60-2003, 60-2006,
38 60-2610 and 60-2611, and amendments
thereto, shall be applicable to
39 lawsuits brought under the code of civil
procedure for limited actions.
40 New Sec.
98. The applicable provisions of article 25 of chapter 60
of
41 the Kansas Statutes Annotated, and
amendments thereto, relating to lost
42 or destroyed court files and records, shall
govern lost court files and re-
43 cords in actions pursuant to the code of
civil procedure for limited actions,
41
1 except as otherwise provided in the
rules of the supreme court of this
2 state.
3 New Sec.
99. Whenever an oath is required by the code of civil pro-
4 cedure for limited actions, the
affirmation of a person conscientiously
5 opposed to taking an oath shall have
the same effect.
6 New Sec.
100. If a case arises in which an action or proceeding for
7 the enforcement or protection of a
substantive right, or the redress or
8 prevention of a wrong, cannot be had
under any specific provisions of the
9 code of civil procedure for limited
actions or other statutes, then the court
10 shall proceed as nearly in conformity with
the provisions of the code of
11 civil procedure for limited actions as the
circumstances permit to do what-
12 ever law and justice require for the
protection of the parties.
13 New Sec.
101. The procedures prescribed by the code of civil pro-
14 cedure for limited actions shall apply to
any actions or proceedings com-
15 menced, or judgments entered, prior to the
enactment of this act.
16 New Sec.
102. The forms contained in the rules to be adopted here-
17 under by the supreme court are sufficient
under this act and are intended
18 to indicate the simplicity and brevity of
statement which this act
19 contemplates.
20 New Sec.
103. Sections 103 through 115, and amendments thereto,
21 shall be known and may be cited as the
small claims procedure act.
22 New Sec.
104. Sections 103 through 115, and amendments thereto,
23 shall apply to and be an alternative
procedure for the processing of small
24 claims pursuant to the code of civil
procedure for limited actions, and the
25 provisions of sections 103 through 115, and
amendments thereto, shall
26 be part of and supplemental to the code of
civil procedure for limited
27 actions, and any acts amendatory thereof or
supplemental thereto. Except
28 as otherwise specifically provided or where
a different or contrary pro-
29 vision is included in sections 103 through
115, and amendments thereto,
30 the code of civil procedure for limited
actions shall be applicable to the
31 processing of small claims and judgments
under sections 103 through 115,
32 and amendments thereto.
33 New Sec.
105. As used in sections 103 through 115 and amendments
34 thereto:
35 (a) "Small claim"
means a claim for the recovery of money or personal
36 property, where the amount claimed or the
value of the property sought
37 does not exceed $1,800, exclusive of
interest, costs and any damages
38 awarded pursuant to K.S.A. 60-2610, and
amendments thereto. In actions
39 of replevin, the petition fixing the value
of the property shall be deter-
40 minative of the value of the property for
jurisdictional purposes. A small
41 claim shall not include:
42 (1) An assigned
claim;
43 (2) a claim based
on an obligation or indebtedness allegedly owed to
42
1 a person other than the plaintiff,
where the plaintiff is not a full-time,
2 salaried employee of the person to
whom the obligation or indebtedness
3 is allegedly owed; or
4 (3) a claim
obtained through subrogation.
5
(b) "Person" means an individual, partnership, limited
liability com-
6 pany, corporation, fiduciary, joint
venture, society, organization or other
7 associations of persons.
8 New Sec.
106. (a) An action seeking the recovery of a small claim
9 shall be considered to have been
commenced at the time a statement of
10 claim is filed with the clerk of the court
if, within 90 days after the state-
11 ment of claim is filed, service of process
is obtained or the first publication
12 is made for service by publication.
Otherwise, the action is deemed com-
13 menced at the time of service of process or
first publication. An entry of
14 appearance shall have the same effect as
service.
15 (b) Upon the
filing of a plaintiff's small claim, the clerk of the court
16 shall require from the plaintiff a docket
fee of $19.50 if the claim does
17 not exceed $500; or $39.50 if the claim
exceeds $500; unless for good
18 cause shown the judge waives the fee. The
docket fee shall be the only
19 costs required in an action seeking
recovery of a small claim. No person
20 may file more than 10 small claims under
the small claims procedure act
21 in the same court during any calendar
year.
22 New Sec.
107. It is the purpose of the small claims procedure act
to
23 provide and maintain simplicity of
pleading, and the court shall supply
24 the forms prescribed by the act to assist
the party in preparing their
25 pleading. The only pleading required in an
action commenced under the
26 act shall be the statement of plaintiff's
claim, which shall be denominated
27 a petition, except a defendant who has a
claim against the plaintiff, which
28 arises out of the transaction or occurrence
that is the subject matter of
29 the plaintiff's claim shall file a
statement of the defendant's dispute and
30 counterclaim if the claim does not exceed
the amount specified in sub-
31 section (a) of section 105, and amendments
thereto. If the defendant's
32 claim exceeds the amount specified in
subsection (a) of section 105, and
33 amendments thereto, the defendant may file
a statement of the defend-
34 ant's claim on the form prescribed by the
small claims procedure act. The
35 court shall not have any jurisdiction under
the small claims procedure act
36 to hear or determine any claim by a
defendant which does not arise out
37 of the transaction or occurrence which is
the subject matter of the plain-
38 tiff's claim.
39 New Sec.
108. (a) Whenever a plaintiff demands judgment beyond
40 the scope of the small claims jurisdiction
of the court, the court shall
41 either:
42 (1) Dismiss the
action without prejudice at the cost of the plaintiff;
43 (2) allow the
plaintiff to amend the plaintiff's pleading and service of
43
1 process to bring the demand for
judgment within the scope of the court's
2 small claims jurisdiction and thereby
waive the right to recover any excess,
3 assessing the cost accrued to the
plaintiff; or
4 (3) if the
plaintiff's demand for judgment is within the scope of the
5 court's general jurisdiction, allow
the plaintiff to amend the plaintiff's
6 pleading and service of process so as
to commence an action in such court
7 in compliance with section 8, and
amendments thereto, assessing the costs
8 accrued to the plaintiff.
9
(b) Whenever a defendant asserts a claim beyond the scope of
the
10 court's small claims jurisdiction, but
within the scope of the court's gen-
11 eral jurisdiction, the court may determine
the validity of the defendant's
12 entire claim. If the court refuses to
determine the entirety of any such
13 claim, the court must allow the defendant
to:
14 (1) Make no
demand for judgment and reserve the right to pursue
15 the defendant's entire claim in a court of
competent jurisdiction;
16 (2) make demands
for judgment of the portion of the claim not ex-
17 ceeding $1,800, plus interest, costs and
any damages awarded pursuant
18 to K.S.A. 60-2610, and amendments thereto,
and reserve the right to
19 bring an action in a court of competent
jurisdiction for any amount in
20 excess thereof; or
21 (3) make demand
for judgment of that portion of the claim not ex-
22 ceeding $1,800, plus interest, costs and
any damages awarded pursuant
23 to K.S.A. 60-2610, and amendments thereto,
and waive the right to re-
24 cover any excess.
25 New Sec.
109. (a) The trial of all actions shall be by the court,
and
26 no party in any such action shall be
represented by an attorney prior to
27 judgment, except as provided in section
115, and amendments thereto.
28 Discovery methods or proceedings shall not
be allowed nor shall the tak-
29 ing of depositions for any purpose be
permitted. No order of attachment
30 of garnishment shall be issued in any
action commenced under the small
31 claims procedure act prior to judgment in
such action.
32 (b)
(1) When entering judgment in the action, the judge shall
include
33 as part of the judgment form or order a
requirement that, within 15 days
34 of the date judgment is entered, unless
judgment has been paid, the
35 judgment creditor shall mail a copy of the
judgment form or order to the
36 judgment debtor together with a form for
providing the information re-
37 quired to be submitted under this
subsection, and that the judgment
38 creditor shall file with the court proof of
the mailing thereof.
39 (2) The judgment
form or order shall also include a requirement that
40 unless the judgment has been paid, the
judgment debtor shall submit to
41 the clerk of the district court within 30
days after receipt of the form
42 therefor, a verified statement describing
the location and nature of prop-
43 erty and assets which the person owns,
including the person's place of
44
1 employment, account numbers and names
of financial institutions holding
2 assets of such person and a
description of all property owned by such
3 person. The office of judicial
administration shall develop the form to be
4 used in submitting information to the
clerk under this subsection.
5 (3) When
the form containing the required information is submitted
6 to the clerk as required by this
subsection, the clerk shall note in the
7 record of the proceedings that it was
received and then shall mail the
8 form to the judgment creditor. No
copy of such form shall be retained in
9 the court records nor shall it be
made available to other persons. Upon
10 motion of the judgment creditor, the court
may punish for contempt any
11 person failing to submit information as
required by this subsection.
12 (c) In a judgment
entered under the small claims procedure act on
13 a claim which is not a small claim or which
has been filed at the court in
14 contravention of the limitation prescribed
by section 105, and amend-
15 ments thereto, on the number of claims
which may be filed by any person,
16 shall be void and unenforceable.
17 New Sec.
110 The venue of actions commenced under the small
18 claims procedure act shall be as prescribed
in sections 37 through 45, and
19 amendments thereto, except that the county
in which the cause of action
20 arose shall be proper venue only where it
is affirmatively shown that the
21 defendant was a resident of the county
where the cause of action arose.
22 New Sec.
111. (a) An appeal may be taken from any judgment under
23 the small claims procedure act. All appeals
shall be by notice of appeal
24 specifying the party or parties taking the
appeal and the order, ruling,
25 decision or judgment complained of and
shall be filed with the clerk of
26 the district court within 10 days after
entry of judgment. All appeals shall
27 be tried and determined de novo before a
district judge, other than the
28 judge from which the appeal is taken. The
provisions of K.S.A. 60-2001
29 and section 32, and amendments thereto,
shall be applicable to actions
30 appealed pursuant to this subsection. The
appealing party shall cause
31 notice of the appeal to be served upon all
other parties to the action in
32 accordance with the provisions of K.S.A.
60-205, and amendments
33 thereto. An appeal shall be perfected upon
the filing of the notice of
34 appeal. When the appeal is perfected, the
clerk of the court or the judge
35 from which the appeal is taken shall refer
the case to the chief judge for
36 assignment in accordance with this section.
All proceedings for the en-
37 forcement of any judgment under the small
claims procedure act shall be
38 stayed during the time within which an
appeal may be taken and during
39 the pendency of an appeal, without the
necessity of the appellant filing a
40 supersedeas bond. If the appellee is
successful on an appeal pursuant to
41 this subsection, the court shall award to
the appellee, as part of the costs,
42 reasonable attorney fees incurred by the
appellee on appeal.
43 (b) Any order,
ruling, decision or judgment rendered by a district
45
1 judge on an appeal taken pursuant to
subsection (a) may be appealed in
2 the manner provided in article 21 of
chapter 60 of the Kansas Statutes
3 Annotated, and amendments
thereto.
4 New Sec.
112. The costs of any action commenced under the small
5 claims procedure act shall be taxed
against the parties as in other actions
6 pursuant to the code of civil
procedure for limited actions.
7 New Sec.
113. It is the purpose of the small claims procedure act
to
8 provide a forum to the speedy trial
of small claims, and to this end, the
9 court may make such orders or
rulings, consistent with the provisions of
10 the act, as are necessary to permit justice
and fairly protect the parties.
11 New Sec.
114. (a) The petition shall be in substantially the
following
12 form:
13 In the District Court
of ________ County, Kansas.
14
__________________
15
Plaintiff
16 vs.
No.
____
17
__________________
18
Defendant
19 PETITION PURSUANT TO THE CODE OF CIVIL
PROCEDURE FOR LIMITED
20
ACTIONS OF THE KANSAS STATUTES ANNOTATED
21 Statement of claim:
22 I, ________, having
read the instruction below, hereby assert the following claim
23 against ________, defendant:
24 Demand for judgment:
25 Based on the claim
stated above, judgment is demanded against defendant as
follows:
26 1. Payment of
$________, plus interest, costs and any damages awarded under
27 K.S.A. 60-2610 and amendments thereto.
28 2. Recovery of
the following described personal property, plus costs:
________.
29 This property has an estimated value of
$________.
30 Instructions to plaintiff:
31 1. State the
claim you have against the defendant in the space provided. Be
clear and
32 concise.
33 2. Your total
claim against defendant may not exceed $1,800, not including
interest,
34 costs and any damages awarded under K.S.A.
60-2610 and amendments thereto. If you are
35 seeking the recovery of personal property,
the value of that property shall be based on your
36 estimate of its value under oath.
37 3. You must be
present in person at the hearing in order to avoid default
judgment
38 against you on any claim defendant may have
which arises out of the transaction or occur-
39 rence which is the subject to your claim
against the defendant.
40 4. You must make
demand for judgment in one or both of the spaces provided
above.
41 5. Except as
provided by law, neither you nor the defendant is permitted to
appear with
42 an attorney at the hearing.
43 6. You may not
file more than 10 small claims under the small claims procedure act
in
46
1 this court during any calendar
year.
2 7. After
completing this form, you must subscribe to the following oath:
3 I, ________,
hereby swear that, to the best of my knowledge and belief, the
foregoing
4 claim asserted against the defendant
(including the estimate of value of any property sought
5 to be recovered) is a just and true
statement, exclusive of any valid claim or defense which
6 defendant may have.
7
[Signature]
_________________________
8
Plaintiff
9 Subscribed and
sworn to before me this ________ day of ________, __
10 (year).
11
[Signature]
_________________________
12
Judge (clerk or notary)
13
14 (b) The summons
shall be in substantially the following form:
15 In the District Court
of ________ County, Kansas.
16
_________________
17
Plaintiff
18 vs.
No. ______
19
_________________
20
Defendant
21
SUMMONS
22
(Small Claims Procedure)
23 To the above-named defendant:
24 You are hereby
notified that the above-named plaintiff has filed a claim against
you under
25 the small claims procedure of this court.
The statement of plaintiff's claim and demand for
26 judgment against you are set forth in the
petition which is served upon you with this sum-
27 mons.
28 A trial will be held
on this matter at __o'clock __m. on the ______ day of ______,
29 __ (year), at ____________.
30 (Place of hearing and address)
31 You must be present in
person at the trial or a judgment by default will be entered
against
32 you. Except as otherwise provided by law,
neither you nor the plaintiff is permitted to appear
33 with an attorney.
34 If your defense is
supported by witnesses, books, receipts or other papers, you
should
35 bring them with you at the time of the
hearing. If you wish to have witnesses summoned,
36 see the judge or clerk of the court at once
for assistance.
37 If you admit the
claim, but desire additional time to satisfy plaintiff's demands,
you must
38 be present at the trial and explain the
circumstances to the court.
39 If you have a claim
against the plaintiff, which arises out of the transaction or
occurrence
40 which is the subject of plaintiff's claim
and your claim does not exceed $1,800, you must
41 complete the form for "Defendant's Claim,"
which accompanies this summons, and return
42 it to the judge or clerk of the court on or
before the time set for the trial. If your claim
43 against plaintiff exceeds $1,800, you may
complete and return the form for "Defendant's
47
1 Claim" on or before the time set for
trial.
2
RETURN ON SERVICE OF SUMMONS
3 I hereby certify
that I have served this summons:
4
(1) Personal service. By delivering a copy of the
summons and a copy of the petition to
5 each of the following defendants on
the dates indicated:
6 ________, __(year)
________, __(year)
7
(2) Residence service. By leaving a copy of the summons
and a copy of the petition at
8 the usual place of residence of each
of the following defendants on the dates indicated:
9 ________, __(year)
________, __(year)
10 (3) No
service. The following defendants were not found in this
county:
11 Dated: __________.
12
____________________
13
(Signature
and Title of Officer)
14 (c) The
defendant's claim shall be in substantially the following form:
15 In the District Court
of ________ County, Kansas.
16
_________________
17
Plaintiff
18 vs.
No.____
19
_________________
20
Defendant
21
DEFENDANT'S CLAIM
22 Instructions:
23 1. As stated in
the summons, if you have a claim against the plaintiff which arises
out
24 of the transaction or occurrence which is
the subject of plaintiff's claim and your claim does
25 not exceed $1,800, you must state your
claim in the space provided below. If your claim
26 against the plaintiff exceeds $1,800, you
may state your claim in the space provided below.
27 In determining whether or not your claim
against the plaintiff exceeds $1,800, do not include
28 interest, costs and any damages under
K.S.A. 60-2610 and amendments thereto, but do
29 include the value of any personal property
sought to be recovered as determined by your
30 estimate of its value under oath.
31 2. Be clear and
concise in stating your claim.
32 3. If the value
of your claim exceeds $1,800 (not including interest, costs and any
dam-
33 ages awarded under K.S.A. 60-2610 and
amendments thereto, but including the value of
34 any personal property sought to be
recovered, as determined by your estimate of its value
35 under oath), the court must decide whether
you may pursue your entire claim or only that
36 portion not exceeding $1,800.
37 4. If your claim
exceeds $1,800 and the court determines that you may not pursue
the
38 entire claim at the hearing, you have three
alternatives: (1) Make no demand for judgment
39 and reserve the right to pursue your entire
claim in a court of competent jurisdiction; (2)
40 make demand for judgment of that portion of
your claim which does not exceed $1,800 and
41 reserve the right to bring an action in a
court of competent jurisdiction for any amount in
42 excess thereof; or (3) make demand for
judgment of that portion of your claim which does
43 not exceed $1,800 and waive your right to
recover any excess.
48
1 5. When
completed, this form must be filed with the judge or the clerk of
the court on
2 or before the time stated in the
summons for the trial.
3 Statement of claim:
4 I, ________,
having read the instructions above, assert the following claim
5 against ________, plaintiff:
6 Demand for judgment:
7 Based on the
claim stated above, judgment is demanded against plaintiff as
follows:
8 1. Payment
of $ ________, plus interest, costs and any damages awarded
under
9 K.S.A. 60-2610 and amendments
thereto.
10 2. Recovery of
the following described personal property, plus costs: This
property has
11 an estimated value of $________.
12 I, ________, hereby
swear that, to the best of my knowledge and belief, the above
13 claim asserted against the plaintiff
(including the estimate of value of any property sought
14 to be recovered) is a just and true
statement.
15
[Signature]
_________________________
16
Plaintiff
17 Subscribed and sworn
to before me this ________ day of ________, ____
18 (year).
19
[Signature]
_________________________
20
Judge
(clerk or notary)
21 New Sec.
115. (a) If any party in small claims litigation: (1) Uses
any
22 person in a representative capacity or such
person representing the party
23 is an attorney or was formerly an attorney;
or (2) is an attorney repre-
24 senting the attorney's self in a small
claims action, then all other parties
25 to such litigation shall be entitled to
have an attorney appear on their
26 behalf in such action.
27 (b) When
appropriate, the court shall advise all parties of this right
28 to hire counsel pursuant to this section
and, if requested by any party,
29 shall grant one reasonable continuance in
such matter to afford a party
30 an opportunity to secure representation of
an attorney.
31 (c) The filing of
a small claims action is a certification by the plaintiff
32 that such plaintiff is complying with the
provisions of the small claims
33 procedure act, specifically with the
provisions of section 106, and amend-
34 ments thereto, relating to the limited
number of claims the person may
35 file in the same court during any calendar
year.
36 (d) Any defendant
may raise as a defense to a small claims action the
37 plaintiff has filed or caused to be filed
more claims than allowed by the
38 small claims procedure act. When such
defense is raised, if the court finds
39 the plaintiff to have filed more claims
than allowed by law, the court shall
40 dismiss the action with prejudice and such
a finding shall be considered
41 a violation of the unconscionable acts and
practices section of the Kansas
42 consumer protection act. The defendant may
file a collateral action under
43 the Kansas consumer protection act.
49
1 (e) As used
in this section, "attorney" means persons licensed to prac-
2 tice law in Kansas or in any other
state whether on active or inactive
3 status, or persons otherwise
qualified to take the Kansas bar examination
4 and acting under the supervisory
authority of a licensed attorney.
5 Sec.
116. K.S.A. 1999 Supp. 19-4737 is hereby amended to read
as
6 follows: 19-4737. (a) An appeal may
be taken from any judgment under
7 the code for the enforcement of
county codes and resolutions. All appeals
8 shall be by notice of appeal
specifying the party or parties taking the
9 appeal and the order, ruling,
decision or judgment complained of and
10 shall be filed with the clerk of the
district court within 10 days after entry
11 of judgment. All appeals shall be tried and
determined de novo before a
12 district judge, other than the judge from
which the appeal is taken. The
13 provisions of K.S.A. 60-2001 and
61-1716section 32, and amendments
14 thereto, shall be applicable to actions
appealed pursuant to this subsec-
15 tion. The appealing party shall cause
notice of the appeal to be served
16 upon all other parties to the action in
accordance with the provisions of
17 K.S.A. 60-205 and amendments thereto. An
appeal shall be perfected
18 upon the filing of the notice of appeal.
When the appeal is perfected, the
19 clerk of the court or the judge from which
the appeal is taken shall refer
20 the case to the chief judge for assignment
in accordance with this section.
21 All proceedings for the enforcement of any
judgment under the code for
22 the enforcement of county codes and
resolutions shall be stayed during
23 the time within which an appeal may be
taken and during the pendency
24 of an appeal, without the necessity of the
appellant filing a supersedeas
25 bond.
26 (b) Any order,
ruling, decision or judgment rendered by a district
27 judge on an appeal taken pursuant to
subsection (a) may be appealed in
28 the manner provided in article 21 of
chapter 60 of the Kansas Statutes
29 Annotated.
30 Sec.
117. K.S.A. 1999 Supp. 20-302b is hereby amended to read
as
31 follows: 20-302b. (a) A district magistrate
judge shall have the jurisdiction
32 and power, in any case in which a violation
of the laws of the state is
33 charged, to conduct the trial of traffic
infractions, cigarette or tobacco
34 infractions or misdemeanor charges to
conduct the preliminary exami-
35 nation of felony charges and to hear felony
arraignments subject to as-
36 signment pursuant to K.S.A. 20-329 and
amendments thereto. In civil
37 cases, a district magistrate judge shall
have concurrent jurisdiction, pow-
38 ers and duties with a district judge,
except that, unless otherwise specif-
39 ically provided in subsection (b), a
district magistrate judge shall not have
40 jurisdiction or cognizance over the
following actions:
41 (1) Any action,
other than an action seeking judgment for an unse-
42 cured debt not sounding in tort and arising
out of a contract for the
43 provision of goods, services or money, in
which the amount in contro-
50
1 versy, exclusive of interests and
costs, exceeds $10,000, except that in
2 actions of replevin, the affidavit in
replevin or the verified petition fixing
3 the value of the property shall
govern the jurisdiction; nothing in this
4 paragraph shall be construed as
limiting the power of a district magistrate
5 judge to hear any action pursuant to
the Kansas probate code or to issue
6 support orders as provided by
paragraph (6) of this subsection;
7 (2) actions
against any officers of the state, or any subdivisions
8 thereof, for misconduct in
office;
9 (3) actions
for specific performance of contracts for real estate;
10 (4) actions in
which title to real estate is sought to be recovered or
11 in which an interest in real estate, either
legal or equitable, is sought to
12 be established, except that nothing in this
paragraph shall be construed
13 as limiting the right to bring an action
for forcible detainer as provided
14 in the acts contained in article 23
of chapter 61 of the Kansas Statutes
15 Annotated, and any acts amendatory
thereof or supplementalsections 79
16 through 86, and amendments thereto;
and nothing in this paragraph shall
17 be construed as limiting the power of a
district magistrate judge to hear
18 any action pursuant to the Kansas probate
code;
19 (5) actions to
foreclose real estate mortgages or to establish and fore-
20 close liens on real estate as provided in
the acts contained in article 11 of
21 chapter 60 of the Kansas Statutes
Annotated, and any acts amendatory
22 thereof or supplementalamendments thereto;
23 (6) actions for
divorce, separate maintenance or custody of minor
24 children, except that nothing in this
paragraph shall be construed as lim-
25 iting the power of a district magistrate
judge to: (A) Hear any action
26 pursuant to the Kansas code for care of
children or the Kansas juvenile
27 justice code; (B) establish, modify or
enforce orders of support, including,
28 but not limited to, orders of support
pursuant to the Kansas parentage
29 act, K.S.A. 23-451 et seq., 39-718a,
39-718b, 39-755 or 60-1610 or K.S.A.
30 23-4,105 through 23-4,118, 23-4,125 through
23-4,137, 38-1542, 38-1543
31 or 38-1563, and amendments thereto; or (C)
enforce orders granting a
32 parent visitation rights to the parent's
child;
33 (7) habeas
corpus;
34
(8) receiverships;
35 (9) change of
name;
36 (10) declaratory
judgments;
37 (11) mandamus and
quo warranto;
38
(12) injunctions;
39 (13) class
actions;
40 (14) rights of
majority; and
41 (15) actions
pursuant to K.S.A. 59-29a01 et seq. and amendments
42 thereto.
43
(b) Notwithstanding the provisions of subsection (a), in the
absence,
51
1 disability or disqualification of a
district judge, a district magistrate judge
2 may:
3 (1) Grant a
restraining order, as provided in K.S.A. 60-902 and
4 amendments thereto;
5 (2) appoint
a receiver, as provided in K.S.A. 60-1301 and amend-
6 ments thereto; and
7 (3) make
any order authorized by K.S.A. 60-1607 and amendments
8 thereto.
9 (c) In
accordance with the limitations and procedures prescribed by
10 law, and subject to any rules of the
supreme court relating thereto, any
11 appeal permitted to be taken from an order
or final decision of a district
12 magistrate judge shall be tried and
determined de novo by a district judge,
13 except that in civil cases where a record
was made of the action or pro-
14 ceeding before the district magistrate
judge, the appeal shall be tried and
15 determined on the record by a district
judge.
16 (d) Upon motion
of a party, the chief judge may reassign an action
17 from a district magistrate judge to a
district judge.
18 Sec.
118. K.S.A. 1999 Supp. 20-310a is hereby amended to read
as
19 follows: 20-310a. (a) Upon the application
of the chief judge of a judicial
20 district to the departmental justice of
that district, for good cause shown,
21 or in the absence, sickness or disability
of a district judge or district mag-
22 istrate judge in any judicial district, a
judge pro tem may be appointed
23 whenever the departmental justice for such
judicial district has not as-
24 signed a district judge from another
judicial district, as provided in K.S.A.
25 20-319, and amendments thereto.
26 (b) Any judge pro
tem appointed pursuant to this section shall be a
27 regularly admitted member of the bar of
this state. The appointment of
28 any such judge pro tem shall be made by the
chief judge or, in the absence
29 of the chief judge, by the departmental
justice for the judicial district.
30 (c) Any judge pro
tem appointed pursuant to this section shall have
31 the full power and authority of a district
judge with respect to any actions
32 or proceedings before such judge pro tem,
except that any judge pro tem
33 appointed pursuant to subsection (d) or (e)
shall have only such power
34 and authority as provided therein. A judge
pro tem shall receive such
35 compensation as is prescribed by the
district court, subject to the budget
36 limitations of such district court.
37 (d) Subject to
the budget limitations of the district court, the chief
38 judge of any judicial district may appoint
one or more judges pro tem for
39 the limited purpose of hearing the original
trials of actions filed pursuant
40 to the small claims procedures act or other
action within the jurisdiction
41 of a district magistrate judge as provided
in K.S.A. 20-302b, and amend-
42 ments thereto. Any such judge pro tem shall
have only such judicial power
43 and authority as is necessary to hear such
actions. Any party aggrieved by
52
1 any order of a judge pro tem under
this subsection may appeal such order
2 and such appeal shall be heard by a
district judge de novo. If the appeal
3 is a small claims action, the appeal
shall be under K.S.A. 61-2709section
4 111, and amendments thereto.
If the appeal is an action within the juris-
5 diction of a district magistrate
judge, the appeal shall be under K.S.A. 20-
6 302b, and amendments thereto.
7 (e) Subject
to the budget limitations of the district court, the chief
8 judge of any judicial district in
which the board of county commissioners
9 is authorized to use the code for the
enforcement of county codes and
10 resolutions as provided in subsection (b)
of K.S.A. 19-101d, and amend-
11 ments thereto, may appoint one or more
judges pro tem for the limited
12 purpose of hearing such cases. Any such
judge pro tem shall have only
13 such power and authority as is necessary to
hear such actions, and shall
14 have the power to compel appearances before
the court, to hold persons
15 in contempt for failure to appear, and to
issue bench warrants for ap-
16 pearances. Such judge pro tem shall receive
the salary and other com-
17 pensation set by resolution of the board of
county commissioners which
18 shall be paid from the revenues of the
county general fund or other fund
19 established for the purpose of financing
code enforcement.
20 (f) The chief
judge of each judicial district shall report to the judicial
21 administrator of the courts: (1) The dates
on which any judge pro tem
22 served in such district, (2) the
compensation paid to any judge pro tem,
23 and (3) such other information as the
judicial administrator may request
24 with regard to the appointment of judges
pro tem. The reports shall be
25 submitted annually on or before January 15
on forms provided by the
26 judicial administrator.
27 Sec.
119. K.S.A. 1999 Supp. 20-362 is hereby amended to read as
28 follows: 20-362. The clerk of the district
court shall remit at least monthly
29 all revenues received from docket fees as
follows:
30 (a) To the county
treasurer, for deposit in the county treasury and
31 credit to the county general fund:
32 (1) A sum equal
to $10 for each docket fee paid pursuant to K.S.A.
33 60-2001 and 60-3005, and amendments
thereto, during the preceding
34 calendar month;
35 (2) a sum equal
to $10 for each $36.50 or $61.50 docket fee paid
36 pursuant to K.S.A. 61-2501, 61-2704
or 61-2709section 96, 106 or 111,
37 and amendments thereto; and
38 (3) a sum equal
to $5 for each $16.50$19.50 docket fee
paid pursuant
39 to K.S.A. 61-2501 or
61-2704section 96 or 106, and amendments
thereto,
40 during the preceding calendar month.
41 (b) To the board
of trustees of the county law library fund, for deposit
42 in the fund, a sum equal to the library
fees paid during the preceding
43 calendar month for cases filed in the
county.
53
1 (c) To the
county treasurer, for deposit in the county treasury and
2 credit to the prosecuting attorneys'
training fund, a sum equal to $1 for
3 each docket fee paid pursuant to
K.S.A. 28-172a, and amendments
4 thereto, during the preceding
calendar month for cases filed in the county
5 and for each fee paid pursuant to
subsection (c) of K.S.A. 28-170, and
6 amendments thereto, during the
preceding calendar month for cases filed
7 in the county.
8 (d) To the
state treasurer, for deposit in the state treasury and credit
9 to the indigents' defense services
fund, a sum equal to $.50 for each
10 docket fee paid pursuant to K.S.A. 28-172a
and subsection (d) of K.S.A.
11 28-170, and amendments thereto, during the
preceding calendar month.
12 (e) To the state
treasurer, for deposit in the state treasury and credit
13 to the law enforcement training center
fund, during the period com-
14 mencing July 1, 1998, and ending June 30,
2002, a sum equal to $9, and
15 on and after July 1, 2002, a sum equal to
$8 for each docket fee paid
16 pursuant to K.S.A. 28-172a, and amendments
thereto, during the pre-
17 ceding calendar month.
18 (f) To the state
treasurer, for deposit in the state treasury and distri-
19 bution according to K.S.A. 20-367 and
amendments thereto, a sum equal
20 to the balance which remains from all
docket fees paid during the pre-
21 ceding calendar month after deduction of
the amounts specified in sub-
22 sections (a), (b), (c), (d) and (e).
23 Sec.
120. K.S.A. 58-227 is hereby amended to read as follows:
58-
24 227. (a) Any person leasing or renting
space for a manufactured home or
25 mobile home site shall have a lien upon any
manufactured home or mo-
26 bile home situated thereon for unpaid lease
or rental payments and for
27 other unpaid charges due such lessor under
the written terms and con-
28 ditions of any lease or rental agreement
with the lessee. Such lien shall
29 be effective after the lessee has defaulted
in payments as provided in the
30 written rental or lease agreement with the
lessor. Notice of such lien shall
31 be given by the lessor by causing written
notice of such lien to be posted
32 conspicuously upon such manufactured home
or mobile home.
33 The lien provided by
this act shall have priority over all other liens
34 except a previous validly perfected
security interest in such manufactured
35 home or mobile home.
36 (b) At any time
after 30 days beyond the date notice is given to the
37 lessee, the lessor may remove the
manufactured home or mobile home
38 from the leased or rented site and may
retain such lien as is provided in
39 this act. Upon such removal, reasonable
charges for such removal and
40 storage may be assessed against the
manufactured home or mobile home.
41 Notwithstanding the foregoing no
manufactured home or mobile home
42 may be removed pursuant to this subsection
if such manufactured home
43 or mobile home is occupied by the lessee;
in such cases the lessor may
54
1 obtain restitution of the premises
pursuant to article 23 of chapter 61 of
2 the Kansas Statutes
Annotatedsections 79 through 86, and
amendments
3 thereto.
4 (c) Such
lien may be enforced and foreclosed as security agreements
5 are enforced under the provisions of
the uniform commercial code.
6 Sec.
121. K.S.A. 58-2542 is hereby amended to read as follows:
58-
7 2542. The district court shall have
jurisdiction over any landlord or tenant
8 with respect to any conduct in this
state governed by this act or with
9 respect to any claim arising from a
transaction subject to this act, and
10 notwithstanding the provisions of
subsection (b) of K.S.A. 61-1603section
11 2, and any
amendments thereto, such actions may be commenced pur-
12 suant to the code of civil procedure for
limited actions. Unless otherwise
13 specifically provided in this act, the code
of civil procedure for limited
14 actions shall govern any action commenced
pursuant to this act.
15 Sec.
122. K.S.A. 1999 Supp. 58-2565 is hereby amended to read
as
16 follows: 58-2565. (a) If the rental
agreement requires the tenant to give
17 notice to the landlord of an anticipated
extended absence in excess of
18 seven days required in K.S.A. 58-2558, and
amendments thereto, and the
19 tenant willfully fails to do so, the
landlord may recover actual damages
20 from the tenant.
21 (b) During any
absence of the tenant in excess of 30 days, the landlord
22 may enter the dwelling unit at times
reasonably necessary. If, after the
23 tenant is 10 days in default for nonpayment
of rent and has removed a
24 substantial portion of such tenant's
belongings from the dwelling unit,
25 the landlord may assume that the tenant has
abandoned the dwelling unit,
26 unless the tenant has notified the landlord
to the contrary.
27 (c) If the tenant
abandons the dwelling unit, the landlord shall make
28 reasonable efforts to rent it at a fair
rental. If the landlord rents the
29 dwelling unit for a term beginning prior to
the expiration of the rental
30 agreement, it is deemed to be terminated as
of the date the new tenancy
31 begins. The rental agreement is deemed to
be terminated by the landlord
32 as of the date the landlord has notice of
the abandonment, if the landlord
33 fails to use reasonable efforts to rent the
dwelling unit at a fair rental or
34 if the landlord accepts the abandonment as
a surrender. If the tenancy is
35 from month-to-month, or week-to-week, the
term of the rental agree-
36 ment for this purpose shall be deemed to be
a month or a week, as the
37 case may be.
38 (d) If the tenant
abandons or surrenders possession of the dwelling
39 unit and leaves household goods,
furnishings, fixtures or any other per-
40 sonal property in or at the dwelling unit
or if the tenant is removed from
41 the dwelling unit as a result of a forcible
detainer action, pursuant to
42 K.S.A. 61-2301,et seq. sections 79 through 86, and
amendmentamend-
43 ments thereto, and fails to remove
any household goods, furnishings, fix-
55
1 tures or any other personal property
in or at the dwelling unit after pos-
2 session of the dwelling unit is
returned to the landlord, the landlord may
3 take possession of the property,
store it at tenant's expense and sell or
4 otherwise dispose of the same upon
the expiration of 30 days after the
5 landlord takes possession of the
property, if at least 15 days prior to the
6 sale or other disposition of such
property the landlord shall publish once
7 in a newspaper of general circulation
in the county in which such dwelling
8 unit is located a notice of the
landlord's intention to sell or dispose of
9 such property. Within seven days
after publication, a copy of the pub-
10 lished notice shall be mailed by the
landlord to the tenant at the tenant's
11 last known address. Such notice shall state
the name of the tenant, a brief
12 description of the property and the
approximate date on which the land-
13 lord intends to sell or otherwise dispose
of such property. If the foregoing
14 requirements are met, the landlord may sell
or otherwise dispose of the
15 property without liability to the tenant or
to any other person who has or
16 claims to have an interest in such
property, except as to any secured
17 creditor who gives notice of creditor's
interest in such property to the
18 landlord prior to the sale or disposition
thereof, if the landlord has no
19 knowledge or notice that any person, other
than the tenant, has or claims
20 to have an interest in such property.
During such 30 [30-day] period after
21 the landlord takes possession of the
property, and at any time prior to
22 sale or other disposition thereof, the
tenant may redeem the property
23 upon payment to the landlord of the
reasonable expenses incurred by the
24 landlord of taking, holding and preparing
the property for sale and of any
25 amount due from the tenant to the landlord
for rent or otherwise.
26 (e) Any proceeds
from the sale or other disposition of the property
27 as provided in subsection (d) shall be
applied by the landlord in the fol-
28 lowing order:
29 (1) To the
reasonable expenses of taking, holding, preparing for sale
30 or disposition, giving notice and selling
or disposing thereof;
31 (2) to the
satisfaction of any amount due from the tenant to the land-
32 lord for rent or otherwise; and,
33 (3) the balance,
if any, may be retained by the landlord, without lia-
34 bility to the tenant or to any other
person, other than a secured creditor
35 who gave notice of creditors interest as
provided in subsection (d), for
36 any profit made as a result of a sale or
other disposition of such property.
37 (f) Any person
who purchases or otherwise receives the property pur-
38 suant to a sale or other disposition of the
property as provided under
39 subsection (d) of this section, without
knowledge that such sale or dis-
40 position is in violation of the ownership
rights or security interest of a
41 third party in the property, takes title to
the property free and clear of
42 any right, title, claim or interest of the
tenant or such third party in the
43 property.
56
1 Sec.
123. K.S.A. 58-25,102 is hereby amended to read as follows:
58-
2 25,102. (a) The
district court shall have jurisdiction over a landlord or
3 tenant with respect to conduct in
this state governed by this act or with
4 respect to any claim arising from a
transaction subject to this act, and
5 notwithstanding the provisions of
subsection (b) of K.S.A. 61-1603section
6 2, and amendments thereto,
such actions may be commenced pursuant
7 to the code of civil procedure for
limited actions. Unless otherwise spe-
8 cifically provided in this act, the
code of civil procedure for limited actions
9 shall govern any action commenced
pursuant to this act. If the relief
10 sought is beyond the jurisdiction of a
district magistrate judge as provided
11 in K.S.A. 20-302b, and amendments thereto,
the action shall be heard by
12 a district judge.
13 Sec.
124. K.S.A. 60-201 is hereby amended to read as follows:
60-
14 201. This article governs the procedure in
the district courts of Kansas,
15 other than actions commenced pursuant to
chapter 61 of the Kansas Stat-
16 utes Annotated, and any amendments
thereto,the code of civil procedure
17 for limited actions and governs the
procedure in all original proceedings
18 in the supreme court in all suits of a
civil nature whether cognizable as
19 cases at law or in equity, except as
provided in K.S.A. 60-265, and amend-
20 ments thereto.
21 Sec.
125. K.S.A. 60-213 is hereby amended to read as follows:
60-
22 213. (a) Compulsory counterclaims. A
pleading shall state as a counter-
23 claim any claim which at the time of
serving the pleading the pleader has
24 against any opposing party, if it arises
out of the transaction or occurrence
25 that is the subject matter of the opposing
party's claim and does not
26 require for its adjudication the presence
of third parties of whom the
27 court cannot acquire jurisdiction; but the
pleader need not state the claim
28 if (1) at the time the action was commenced
the claim was the subject of
29 another pending action, or (2) the opposing
party brought suit upon such
30 party's claim by attachment or other
process by which the court did not
31 acquire jurisdiction to render a personal
judgment on that claim, and the
32 pleader is not stating any other
counterclaim under this section.
33 (b) Permissive
counterclaims. A pleading may state as a counterclaim
34 any claim against an opposing party not
arising out of the transaction or
35 occurrence that is the subject matter of
the opposing party's claim.
36
(c) Counterclaim exceeding opposing claim. A
counterclaim may or
37 may not diminish or defeat the recovery
sought by the opposing party. It
38 may claim relief exceeding in amount or
different in kind from that sought
39 in the pleading of the opposing party.
40 (d) Effect of
death or limitations. When cross demands have existed
41 between persons under such circumstances
that, if one had brought an
42 action against the other, a counterclaim or
cross-claim could have been
43 set up, neither can be deprived of the
benefit thereof by the assignment
57
1 or death of the other or by reason of
the statute of limitations if arising
2 out of the contract or transaction
set forth in the petition as the foundation
3 of plaintiff's claim or connected
with the subject of the action; but the
4 two demands must be deemed
compensated so far as they equal each
5 other.
6
(e) Counterclaim maturing or acquired after pleading. A
claim which
7 either matured or was acquired by the
pleader after serving the pleading
8 may, with the permission of the
court, be presented as a counterclaim by
9 supplemental pleading.
10 (f) Omitted
counterclaim. When a pleader fails to set up a counter-
11 claim through oversight, inadvertence, or
excusable neglect, or when jus-
12 tice requires, the pleader may by leave of
court set up the counterclaim
13 by amendment.
14 (g) Compulsory
cross-claim against co-party. In an action involving
15 a claim governed by K.S.A. 60-258a and
amendments thereto, a party
16 shall state as a cross-claim any claim that
party has against any co-party
17 arising out of the transaction or
occurrence that is the subject matter of
18 the claim governed by K.S.A. 60-258a and
amendments thereto.
19 (h) Permissive
cross-claim against co-party. A pleading may state as
20 a cross-claim any claim by one party
against a co-party arising out of the
21 transaction or occurrence that is the
subject matter either of the original
22 action or of a counterclaim therein or
relating to any property that is the
23 subject matter of the original action. Such
cross-claim may include a claim
24 that the party against whom it is asserted
is or may be liable to the cross-
25 claimant for all or part of a claim
asserted in the action against the cross-
26 claimant.
27 (i) Joinder of
additional parties. Persons other than those made par-
28 ties to the original action may be made
parties to a counterclaim or cross-
29 claim in accordance with the provisions of
K.S.A. 60-219 and 60-220, and
30 amendments thereto.
31 (j) Separate
trials; separate judgments. If the court orders separate
32 trials as provided in K.S.A. 60-242 and
amendments thereto judgment on
33 a counterclaim or cross-claim may be
rendered in accordance with the
34 terms of K.S.A. 60-254 and amendments
thereto when the judge has
35 jurisdiction so to do, even if the claims
of the opposing party have been
36 dismissed or otherwise disposed of.
37 (k) Appealed
and removed actions. When an action is filed in the
38 district court pursuant to chapter
61the code of civil procedure for limited
39 actions and such action is
transferred as provided in K.S.A. 61-1717sec-
40 tion 16, and amendments thereto or
such action is heard by a district
41 magistrate judge and is appealed and a
trial de novo will be held before
42 a district judge, any counterclaim made
compulsory by subsection (a) shall
43 be stated as an amendment to the pleading
within 20 days after such filing
58
1 or such other time as the court shall
allow. Other counterclaims and cross-
2 claims shall be permitted as in an
original action in the district court
3 pursuant to this chapter.
4 Sec.
126. K.S.A. 60-265 is hereby amended to read as follows:
60-
5 265. The provisions of this article
shall apply only to actions and pro-
6 ceedings in the district courts,
other than actions commenced pursuant
7 to chapter 61 of the Kansas
Statutes Annotated, and any amendments
8 thereto,the code
of civil procedure for limited actions and shall apply to
9 original actions in the supreme court
except:
10 (1) When made
applicable in any other courts, boards, commissions,
11 or other judicial or quasi-judicial bodies
by specific statutory provisions
12 referring to this article.
13 (2) When any
other such court or judicial or quasi-judicial body
14 adopts by an order, which order is
consistent with all statutes controlling
15 its procedures, all or a part of this
article for its own proceedings, either
16 in a particular matter before it or in any
matters generally, or
17 (3) When any
statute pertaining to any such court or other judicial
18 or quasi-judicial body, which statute was
enacted prior to the adoption of
19 this article and which incorporated by
reference procedures under the
20 then existing code of civil procedure, then
the most nearly comparable
21 provisions of this article shall be
applicable to the procedures in such
22 court or body until modified or
supplemented by specific statutes or or-
23 ders in accordance with clauses (1) or (2)
of this section.
24 In any matter over
which the court has jurisdiction but with reference
25 to which no specific provision is included
in this article, the court shall
26 proceed in such manner as shall be just and
equitable to protect the rights
27 and interests of all parties affected
thereby.
28 Sec.
127. K.S.A. 60-304 is hereby amended to read as follows:
60-
29 304. As used in this section, "serving"
means making service by any of
30 the methods described in K.S.A. 60-303, and
amendments thereto, unless
31 a specific method of making service is
prescribed in this section. Except
32 for service by publication under K.S.A.
60-307, and amendments thereto,
33 service of process under this article shall
be made as follows:
34
(a) Individual. Upon an individual other than a minor
or a disabled
35 person, by serving the individual or by
serving an agent authorized by
36 appointment or by law to receive service of
process, but if the agent is
37 one designated by statute to receive
service, such further notice as the
38 statute requires shall be given. Service by
certified mail shall be addressed
39 to an individual at the individual's
dwelling house or usual place of abode
40 and to an authorized agent at the agent's
usual or designated address. If
41 service by certified mail to the
individual's dwelling house or usual place
42 of abode is refused or unclaimed, the
sheriff, party or party's attorney
43 seeking service may complete service by
certified mail, restricted delivery,
59
1 by serving the individual at a
business address after filing a return on
2 service stating the certified mailing
to the individual at such individual's
3 dwelling house or usual place of
abode has been refused or unclaimed
4 and a business address is known for
such individual.
5
(b) Minor. Upon a minor, by serving the minor and also
either the
6 minor's guardian or conservator if
the minor has one within the state or
7 the minor's father or mother or other
person having the minor's care or
8 control or with whom such minor
resides, or if service cannot be made
9 upon any of them, then as provided by
order of the judge. Service by
10 certified mail shall be addressed to an
individual at the individual's dwell-
11 ing house or usual place of abode and to a
corporate guardian or conser-
12 vator at such guardian or conservator's
usual place of business.
13 (c) Disabled
person. Upon a disabled person, as defined in K.S.A.
14 59-3002, and amendments thereto, by serving
(1) such person's guardian,
15 conservator or a competent adult member of
such person's family with
16 whom the person resides, or if such person
is living in an institution, then
17 the director or chief executive officer of
the institution or, if service can-
18 not be made upon any of them, then as
provided by order of the judge,
19 and (2) unless the judge otherwise orders,
the disabled person. Service
20 by certified mail shall be addressed to a
director or chief executive officer
21 of an institution at the institution, to
any other individual at the individ-
22 ual's dwelling house or usual place of
abode, and to a corporate guardian
23 or conservator at such guardian or
conservator's usual place of business.
24
(d) Governmental bodies. (1) Upon a county, by serving
one of the
25 county commissioners or the county clerk or
the county treasurer; (2)
26 upon a township, by serving the clerk or
the trustee; (3) upon a city, by
27 serving the clerk or the mayor; (4) upon
any other public corporation,
28 body politic, district or authority by
serving the clerk or secretary or, if
29 not to be found, to any officer, director
or manager thereof; and (5) upon
30 the state or any governmental agency of the
state, when subject to suit,
31 by serving the attorney general or an
assistant attorney general. Service
32 by certified mail shall be addressed to the
appropriate official at the of-
33 ficial's governmental office. Income
withholding orders for support and
34 orders of garnishment of earnings of state
officers and employees shall
35 be served upon the state or governmental
agency of the state in the man-
36 ner provided by K.S.A. 60-723 and
amendments thereto.
37
(e) Corporations and partnerships. Upon a domestic or
foreign cor-
38 poration or upon a partnership or other
unincorporated association, when
39 by law it may be sued as such, (1) by
serving an officer, partner or a
40 resident, managing or general agent, or (2)
by leaving a copy of the sum-
41 mons and petition at any business office of
the defendant with the person
42 having charge thereof, or (3) by serving
any agent authorized by appoint-
43 ment or required by law to receive service
of process, and if the agent is
60
1 one authorized by law to receive
service and the law so requires, by also
2 mailing a copy to the defendant.
Service by certified mail on an officer,
3 partner or agent shall be addressed
to such person at the person's usual
4 place of business.
5
(f) Foreign corporation or foreign limited partnership
resident agent.
6 Service of process or service of any
notice or demand required or per-
7 mitted by law to be served on a
foreign corporation or foreign limited
8 partnership may also be made on the
corporation or limited partnership
9 by service thereof on the resident
agent of the corporation or limited
10 partnership. Whenever any foreign
corporation or foreign limited part-
11 nership authorized to transact business or
transacting business without
12 authority in this state fails to appoint or
maintain in this state a resident
13 agent upon whom service of legal process or
service of any such notice
14 or demand may be had, whenever the resident
agent of such corporation
15 or limited partnership cannot with
reasonable diligence be found at the
16 registered office in this state or whenever
the certificate of authority of
17 any foreign corporation or foreign limited
partnership is forfeited, the
18 secretary of state shall be irrevocably
authorized as the agent and repre-
19 sentative of the foreign corporation or
foreign limited partnership to ac-
20 cept service of any process or service of
any notice or demand required
21 or permitted by law to be served upon the
corporation or limited part-
22 nership. Service on the secretary of state
of any process, notice or demand
23 against the foreign corporation or foreign
limited partnership shall be
24 made by delivering to and leaving with the
secretary of state, or with any
25 clerk having charge of the corporation
department of the secretary of
26 state's office, the original and two copies
of the process and two copies
27 of the petition, notice or demand, or the
clerk of the court may send the
28 original process and two copies of both the
process and the petition,
29 notice or demand directly to the secretary
of state by restricted mail. In
30 the event that any process, notice or
demand is served on the secretary
31 of state, the secretary shall immediately
cause a copy thereof to be for-
32 warded by restricted mail, addressed to the
corporation or limited part-
33 nership at its principal office as it
appears in the records of the secretary
34 of state, or to the registered or principal
office of the corporation or
35 limited partnership in the state of its
incorporation or formation. The
36 secretary of state shall keep a record of
all processes, notices and demands
37 served upon the secretary under this
subsection, and shall record in the
38 record the time of the service and the
action of the secretary with ref-
39 erence to it. A fee of $30 shall be paid to
the secretary of state by the
40 party requesting the service of process, to
cover the cost thereof. That
41 fee shall not be included within or paid
from any deposit as security for
42 any costs or docket fee required by K.S.A.
60-2001 or 61-2501section 96,
43 and amendments thereto.
61
1
(g) Insurance companies or associations. Service of
summons or other
2 process may also be made on any
insurance company or association, or-
3 ganized under the laws of the state
of Kansas by service on the commis-
4 sioner of insurance in the same
manner as that provided for service on
5 foreign insurance companies. All the
requirements of law relating to serv-
6 ice on foreign insurance companies so
far as applicable shall also apply
7 to domestic insurance companies.
8
(h) Service upon an employee. If the plaintiff or the
plaintiff's agent
9 or attorney files an affidavit that
to the best of the affiant's knowledge
10 and belief the defendant is a nonresident
who is employed in this state,
11 or that the place of residence of the
defendant is unknown, the affiant
12 may direct that the service of summons or
other process be made by the
13 sheriff or other duly authorized person by
directing an officer, partner,
14 managing or general agent, or the person
having charge of the office or
15 place of employment at which the defendant
is employed, to make the
16 defendant available for the purpose of
permitting the sheriff or other duly
17 authorized person to serve the summons or
other process.
18 Sec.
128. K.S.A. 60-725 is hereby amended to read as follows:
60-
19 725. Whenever the secretary of labor,
pursuant to authority vested in said
20 the secretary under P.L. 90-321,
shall promulgate rules and regulations
21 establishing the amount of disposable
earnings subject to wage garnish-
22 ment, which rules and regulations are a
result of a change in and based
23 upon multiples of the minimum hourly wage
established by section
24 206(a)(1) of title 29 of the United States
code, the clerks of the several
25 district courts are hereby authorized and
directed to amend the instruc-
26 tions to the garnishee in the garnishee's
answer form, as contained in
27 subsection (b) of K.S.A. 60-718, and
amendments thereto, to correspond
28 to saidsuch rules
and regulations and in like manner, to amend the
in-
29 structions to the garnishee in the
garnishee's answer form, as contained
30 in Form No. 8a in the appendix of
forms following K.S.A. 61-2605, to
31 correspond to said rules and
regulations.
32 Sec.
129. K.S.A. 1999 Supp. 60-2202 is hereby amended to read
as
33 follows: 60-2202. (a) Any judgment rendered
in this state by a court of
34 the United States or by a district court of
this state in an action com-
35 menced under chapter 60 of the Kansas
Statutes Annotated shall be a
36 lien on the real estate of the judgment
debtor within the county in which
37 judgment is rendered. Except as provided in
subsection (c), the lien shall
38 be effective from the time at which the
petition stating the claim against
39 the judgment debtor was filed but not to
exceed four months prior to the
40 entry of the judgment. An attested copy of
the journal entry of the judg-
41 ment, together with a statement of the
costs taxed against the judgment
42 debtor in the case, may be filed in the
office of the clerk of the district
43 court of any other county upon payment of
the fee prescribed by K.S.A.
62
1 28-170 and amendments thereto, and
the judgment shall become a lien
2 on the real estate of the debtor
within that county from the date of filing
3 the copy. The clerk shall enter the
judgment on the appearance docket
4 and index it in the same manner as if
rendered in the court in which the
5 clerk serves. Executions shall be
issued only from the court in which the
6 judgment is rendered.
7 (b) Any
judgment rendered by a district court of this state in an
action
8 commenced under chapter 61 of
the Kansas Statutes Annotatedthe code
9 of civil procedure for limited
actions shall become a lien on the real prop-
10 erty of the judgment debtor when the party
in whose favor the judgment
11 was rendered pays the fee prescribed by
K.S.A. 28-170 and amendments
12 thereto and the clerk of the district court
enters the judgment in the
13 appearance docket. The lien shall become a
lien only upon the debtor's
14 real property that is located in the county
in which the filing is made, but
15 a filing may be made in any county in which
real property of the judgment
16 debtor is located. Upon the filing of a
journal entry of judgment and
17 payment of the fee as provided in this
section, the clerk of the district
18 court shall enter it in the appearance
docket. The lien shall cease to be a
19 lien on the real property of the judgment
debtor at the time provided in
20 article 24 of this chapter.
21
(c) Notwithstanding the foregoing provisions of this section,
the filing
22 of a petition or other pleadings against an
employee of the state or a
23 municipality which alleges a negligent or
wrongful act or omission of the
24 employee while acting within the scope of
the employee's employment
25 shall create no lien rights as against the
property of the employee prior
26 to judgment, regardless of whether or not
it is alleged in the alternative
27 that the employee was acting outside the
scope of the employee's em-
28 ployment. A judgment against an employee
shall become a lien upon the
29 employee's property when the judgment is
rendered only if it is found
30 that (1) the employee's negligent or
wrongful act or omission occurred
31 when the employee was acting outside the
scope of the employee's em-
32 ployment or (2) the employee's conduct
which gave rise to the judgment
33 was because of actual fraud or actual
malice of the employee; in those
34 cases the lien shall not be effective prior
to the date judgment is rendered.
35 As used in this subsection, "employee" has
the meaning provided by
36 K.S.A. 75-6102 and amendments thereto.
37 (d) If unpaid
arrearages accrued under a support order rendered in
38 another state give rise to a lien on real
property in the state where ren-
39 dered, such arrearages shall become a lien
on the real property of the
40 obligor as of the date the clerk of the
court in this state enters the order
41 in the appearance docket. The clerk of the
court shall enter the order in
42 the appearance docket upon receiving
payment of the fee prescribed by
43 K.S.A. 28-170 and amendments thereto; a
sworn statement that the ob-
63
1 ligor was provided at least 30 days'
prior written notice that the lien would
2 be filed in this state, that the
obligor was provided an opportunity for
3 hearing concerning the proposed
filing and that no hearing was timely
4 requested or the decision therein
allows the lien to be filed; a sworn
5 statement of the amount of the lien;
and a legible copy of the support
6 order or, in a title IV-D case, a
notice of lien that describes the support
7 order. The lien shall become a lien
only upon the obligor's real property
8 that is located in the county in
which the filing is made, but a filing may
9 be made in any county in which real
property of the obligor is located.
10 The lien shall cease to be a lien on the
real property of the obligor at the
11 time provided in article 24 of this
chapter. As used in this section, "title
12 IV-D case" means a case being administered
pursuant to part D of title
13 IV of the federal social security act (42
U.S.C. § 651 et seq.) and amend-
14 ments thereto. Any person filing the
documents required by this subsec-
15 tion shall be deemed to have submitted to
the jurisdiction of the courts
16 of this state with respect to any action in
this state to determine the
17 validity of the lien or the lien's
attachment to any real property.
18 (e) A person
named as the debtor in a notice of lien filed pursuant
19 to subsection (d) based upon a support
order issued in another state, or
20 a person whose interest in real estate is
affected by the filing of such a
21 notice of lien may file a petition pursuant
to chapter 60 of the Kansas
22 Statutes Annotated, and amendments thereto,
with the district court
23 where the notice of lien was filed. The
petitioner shall notify the person
24 who filed the notice of lien that a hearing
to contest the validity of the
25 lien or the lien's attachment to the
petitioner's property will be held no
26 less than 30 days after the date of mailing
or personal service of the notice.
27 Sec.
130. K.S.A. 60-2418 is hereby amended to read as follows:
60-
28 2418. (a) In all cases in which a judgment
is rendered pursuant to chapter
29 61 of the Kansas Statutes
Annotatedthe code of civil procedure for
limited
30 actions, the party in whose favor
judgment is rendered may pay the fee
31 prescribed by K.S.A. 28-170 and amendments
thereto. Upon payment of
32 the fee the clerk of the district court in
the county in which the judgment
33 was rendered shall renumber the case as a
case filed under this chapter
34 and enter payment of the fee and the
renumbering of the case on the
35 appearance docket of the case. The judgment
shall become a lien on the
36 real estate of the judgment debtor in the
county from the date of the
37 entry. Execution to satisfy the judgment
shall proceed in the same manner
38 as original judgments in the district court
pursuant to this chapter.
39 (b) If any
judgment filed pursuant to this section becomes dormant,
40 it may be revived in the same manner as
other judgments in the district
41 court.
42 Sec.
131. K.S.A. 60-3331 is hereby amended to read as follows:
60-
43 3331. (a) Except as otherwise provided, a
merchant may file a civil action
64
1 to receive a civil penalty against
any adult or emancipated minor who
2 shoplifts from that merchant. If the
merchant does not recover the mer-
3 chandise in merchantable condition,
the merchant shall be entitled to a
4 civil penalty for an amount equal to
twice the retail cost of the merchan-
5 dise, or $50, whichever is greater,
but in no case shall such civil penalty
6 be more than $500. If the merchant
recovers the merchandise in mer-
7 chantable condition, the merchant
shall be entitled to a civil penalty of
8 $50 or 50% of the retail cost of the
merchandise, whichever is greater,
9 but in no case shall such civil
penalty be more than $350.
10 (b) Unless the
action is brought pursuant to the Kansas small claims
11 act and a final judgment is rendered in
small claims court, the prevailing
12 party in such action brought pursuant to
this section shall be entitled to
13 reasonable attorney fees and costs. If the
action is brought in small claims
14 court and the judgment is appealed to
district court pursuant to chapter
15 60 of the Kansas Statutes Annotated or
K.S.A. 61-2709section 111, and
16 amendments thereto, the prevailing party on
appeal shall be entitled to
17 reasonable attorney fees and costs.
18 (c) A conviction
or a plea of guilty to the offense of theft of the mer-
19 chandise is not a prerequisite to the
filing of a civil action under this
20 section.
21 (d) Prior to
filing a civil action under this section, a merchant dam-
22 aged by shoplifting may demand that an
individual alleged to be civilly
23 liable under this act reimburse such
merchant in an amount of the civil
24 penalty as prescribed in subsection (a).
Such demand, if made, shall be
25 in writing and may be offered in
consideration for the merchant's agree-
26 ment not to commence a civil action under
this section. Such demand
27 shall not contain a threat of criminal
prosecution against such individual.
28 Any merchant who makes a demand with a
threat of criminal prosecution
29 against such individual shall be precluded
from filing a civil action under
30 this section and pursuing any other remedy
at law or equity. A demand
31 pursuant to this subsection is not a
prerequisite to filing a civil action
32 under this section, but no demand may be
made which does not comply
33 with this subsection.
34 (e) Nothing
contained in this act shall be construed to preclude a
35 merchant from pursuing any other remedy at
law or equity prior to filing
36 an action under this act.
37 (f) For purposes
of this act, "shoplift" means any one or more of the
38 following acts committed by a person
without the consent of the merchant
39 and with the intent of appropriating
merchandise to that person's or an-
40 other's own use without payment, obtaining
merchandise at less than its
41 stated sales price or otherwise depriving a
merchant of all or any part of
42 the value or use of merchandise:
43 (1) Removing any
merchandise from the premises of the merchant's
65
1 establishment;
2
(2) concealing any merchandise with intent to leave the
premises with
3 the merchandise;
4
(3) substituting, altering, removing or disfiguring any label
or price
5 tag;
6
(4) transferring any merchandise from a container in which
that mer-
7 chandise is displayed or packaged to
any other container; or
8
(5) disarming any alarm tag attached to any merchandise.
9 Sec.
132. K.S.A. 75-6103 is hereby amended to read as follows:
75-
10 6103. (a) Subject to the limitations of
this act, each governmental entity
11 shall be liable for damages caused by the
negligent or wrongful act or
12 omission of any of its employees while
acting within the scope of their
13 employment under circumstances where the
governmental entity, if a
14 private person, would be liable under the
laws of this state.
15 (b)
(1) Except as otherwise provided in this act, either the code
of
16 civil procedure or, subject to provision
(2) of this subsection, the code of
17 civil procedure for limited actions shall
be applicable to actions within
18 the scope of this act. Actions for claims
within the scope of the Kansas
19 tort claims act brought under the code of
civil procedure for limited
20 actions are subject to the limitations
provided in K.S.A. 61-1603section
21 2, and amendments thereto.
22 (2) Actions
within the scope of the Kansas tort claims act may not be
23 brought under the small claims procedure
act.
24 Sec. 133. K.S.A. 58-227,
58-2542, 58-25,102, 60-201, 60-213, 60-
25 265, 60-304, 60-725, 60-2418, 60-3331,
61-1601, 61-1603 through 61-
26 1605, 61-1608, 61-1701 through 61-1703,
61-1703a, 61-1704 through 61-
27 1709, 61-1711 through 61-1719, 61-1721
through 61-1723, 61-1725a,
28 61-1726, 61-1728, 61-1801 through 61-1803,
61-1805 through 61-1807,
29 61-1901 through 61-1909, 61-2001 through
61-2012, 61-2101, 61-2102,
30 61-2104 through 61-2109, 61-2201 through
61-2204, 61-2301 through 61-
31 2304, 61-2306 through 61-2311, 61-2402
through 61-2405, 61-2502, 61-
32 2503, 61-2601 through 61-2605, 61-2701,
61-2702, 61-2705, 61-2706, 61-
33 2708, 61-2710, 61-2712, 61-2714 and 75-6103
and K.S.A. 1999 Supp.
34 19-4737, 20-302b, 20-310a, 20-362, 58-2565,
60-2202, 61-1710, 61-1720,
35 61-1724, 61-1725, 61-1729, 61-2013,
61-2014, 61-2103, 61-2305, 61-
36 2401, 61-2501, 61-2703, 61-2704, 61-2707,
61-2709 and 61-2713 are
37 hereby repealed.
38 Sec. 134. This act shall
take effect and be in force from and after its
39 publication in the statute book.