Session of 2000
HOUSE BILL No. 2806
By Committee on Judiciary
2-2
9 AN ACT
concerning civil procedure; relating to service of process;
10 amending K.S.A.
17-1642, 60-303, 61-1803 and 61-1807 and K.S.A.
11 1999 Supp. 60-312 and
repealing the existing sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. K.S.A. 17-1642 is hereby amended to read as follows:
17-
15 1642. (a) Except as provided in
subsection (j), the association or cor-
16 poration surviving or resulting from any
merger or consolidation, within
17 10 days after the effective date of the
merger or consolidation, shall notify
18 each member or stockholder of any
association or corporation of this state
19 so merging or consolidating who objected
thereto in writing and whose
20 shares either were not entitled to vote or
were not voted in favor of the
21 merger or consolidation, and who filed such
written objection with the
22 association or corporation before the
taking of the vote on the merger or
23 consolidation, that the merger or
consolidation has become effective. If
24 any such member or stockholder, within 20
days after the date of mailing
25 of the notice, shall demand in writing,
from the association or corporation
26 surviving or resulting from the merger or
consolidation, payment of the
27 value of the member's or stockholder's
interest, the surviving or resulting
28 association or corporation shall pay to the
member or stockholder, within
29 30 days after the expiration of the period
of 20 days, the value of the
30 member's or stockholder's interest on the
effective date of the merger or
31 consolidation, exclusive of any element of
value arising from the expec-
32 tation or accomplishment of the merger or
consolidation.
33 (b) If during a
period of 30 days following the period of 20 days
34 provided for in subsection (a), the
association and any such member or
35 stockholder fail to agree upon the value of
such member's or stockholder's
36 interest, any such member or stockholder,
or the association or corpo-
37 ration surviving or resulting from the
merger or consolidation, may de-
38 mand a determination of the value of the
member's or stockholder's in-
39 terest by an appraiser or appraisers to be
appointed by the district court,
40 by filing a petition with the court within
four months after the expiration
41 of the thirty-day period.
42 (c) Upon the
filing of any such petition by a member or stockholder,
43 service of a copy shall be made upon the
surviving association or corpo-
2
1 ration, which shall file with the
clerk of the district court, within 10 days
2 after such service, a duly verified
list containing the names and addresses
3 of all members or stockholders who
have demanded payment for such
4 member's or stockholder's interest
and with whom agreements as to the
5 value of such member's or
stockholder's interest have not been reached
6 by the association or corporation. If
the petition is filed by the surviving
7 association or corporation, the
petition shall be accompanied by such duly
8 verified list. The surviving
association or corporation shall give notice of
9 the time and place fixed for the
hearing of such petition pursuant to
10 subsection (b) (c)
of K.S.A. 60-303, and amendments thereto, to the
11 members or stockholders shown upon the list
at the addresses therein
12 stated and notice shall also be given by
publishing a notice at least once,
13 at least one week before the day of the
hearing, in a newspaper of general
14 circulation in the county in which the
district court is located. The court
15 may direct such additional publication of
notice as the court deems ad-
16 visable. The forms of the notices by mail
and by publication shall be
17 approved by the court.
18 (d) After the
hearing on the petition the court shall determine the
19 members or stockholders who have complied
with the provisions of this
20 section and become entitled to the
valuation of and payment for such
21 member's or stockholder's interest, and
shall appoint an appraiser or ap-
22 praisers to determine such value. The
appraiser or appraisers may ex-
23 amine any of the books and records of the
associations or corporations
24 the stock of which such appraiser or
appraisers is charged with the duty
25 of valuing, and following an investigation,
the appraiser or appraisers shall
26 make a determination of the value of the
member's or stockholder's in-
27 terest. The appraiser or appraisers shall
also afford a reasonable oppor-
28 tunity to the parties interested to submit
to the appraiser or appraisers
29 pertinent evidence on the value of the
member's or stockholder's interest.
30 The appraiser or appraisers, also, shall
have the powers and authority
31 conferred upon masters by K.S.A. 60-253,
and amendments thereto.
32 (e) The appraiser
or appraisers shall determine the value of the stock
33 of the members or stockholders adjudged by
the district court to be en-
34 titled to payment therefor and shall file a
report respecting such value in
35 the office of the clerk of the district
court, and notice of the filing of such
36 report shall be given by the petitioners to
the parties in interest. Such
37 report shall be subject to exceptions to be
heard before the court both
38 upon the law and facts. The court by decree
shall determine the value of
39 the stock of the members or stockholders
entitled to payment and shall
40 direct the payment of such value, together
with interest, if any, to the
41 members or stockholders entitled by the
surviving or resulting corpora-
42 tion. Upon payment of the judgment by the
surviving or resulting cor-
43 poration, the clerk of the district court
shall surrender to the surviving
3
1 association or corporation the
certificates of shares of stock held by the
2 clerk pursuant to subsection (f). The
decree may be enforced as other
3 judgments of the district court may
be enforced, whether such surviving
4 or resulting association be an
association of this state or of any other state.
5 (f) At the
time of appointing the appraiser or appraisers, the court
6 shall require the members or
stockholders who hold certificated shares
7 and who demanded payment for the
shares to submit the certificates of
8 stock to the clerk of the court, to
be held by the clerk pending the ap-
9 praisal proceedings. If any member or
stockholder fails to comply with
10 such direction, the court shall dismiss the
proceedings as to such member
11 or stockholder.
12 (g) The cost of
any such appraisal, including reasonable fees and ex-
13 penses of the appraiser or appraisers, but
exclusive of fees of counsel or
14 of experts retained by any party, shall be
determined by the court and
15 taxed upon the parties to such appraisal or
any of them as appears to be
16 equitable, except that the cost of giving
the notice by publication and by
17 certified mail shall be paid by the
surviving association or corporation.
18 Postjudgment interest, if any, shall be in
accordance with K.S.A. 16-204,
19 and amendments thereto, to be paid upon the
value of the stock of the
20 members or stockholders entitled
thereto.
21 (h) Any member or
stockholder who has demanded payment of the
22 member's or stockholder's interest as
herein provided shall not thereafter
23 be entitled to vote such member's or
stockholder's stock for any purpose
24 or be entitled to the payment of dividends
or other distribution on such
25 stock, except dividends or other
distributions payable to members or
26 stockholders of record at a date which is
prior to the effective date of the
27 merger or consolidation, unless the
appointment of an appraiser or ap-
28 praisers shall not be applied for within
the time herein provided, or the
29 proceeding be dismissed as to such member
or stockholder, or unless
30 such member or stockholder with the written
approval of the surviving
31 association or corporation shall deliver to
the association or corporation
32 a written withdrawal of the member's or
stockholder's objections to and
33 an acceptance of the merger or
consolidation, in any of which cases the
34 right of such member or stockholder to
payment for the member's or
35 stockholder's interest shall cease.
36 (i) The shares of
the surviving or resulting association or corporation
37 into which the shares of such objecting
members or stockholders would
38 have been converted had they assented to
the merger or consolidation
39 shall have the status of authorized and
unissued shares of the surviving
40 or resulting association or
corporation.
41 (j) This section
shall not be applicable to the members, stockholders
42 or other holders of equity securities of
the surviving association or cor-
43 poration in any merger where the active
members of the surviving asso-
4
1 ciation or corporation continue to be
eligible to be members of the sur-
2 viving association or corporation
after the merger and the agreement of
3 merger does not amend the articles of
incorporation, and shall not apply
4 to the members, stockholders or other
holders of equity securities of the
5 constituent association or
corporation not surviving the merger in any
6 merger where the active members of
such constituent association or cor-
7 poration are eligible to become
members of the surviving association or
8 corporation on the same terms and
conditions as other similarly classified
9 members of the surviving association
or corporation.
10 Section
2. K.S.A. 60-303 is hereby amended to read as follows: 60-
11 303. (a) Methods of service of process
within this state, except service by
12 publication as provided in K.S.A. 60-307,
and amendments thereto, are
13 described in this section. Methods of
out-of-state service of process are
14 described in K.S.A. 60-308, and amendments
thereto.
15 (b) Service by
certified mail. Except if the attorney for the party or
16 the party, if the party is not represented
by an attorney, requests personal
17 or residence service pursuant to subsection
(c) (d); if the attorney or the
18 party requesting service elects to serve
process by certified mail pursuant
19 to this subsection
(c); as provided in K.S.A. 60-903, 60-2401 or 60-3104,
20 and amendments thereto; or as otherwise
provided by law, the sheriff of
21 the county wherein the action is filed
shall serve any process by certified
22 mail, any method
authorized by this section.
23
(c) Service by certified mail. Service of process
by certified mail shall
24 be evidenced by return receipt signed by
any person or by restricted
25 delivery, unless otherwise permitted by
this article. The sheriff, attorney
26 for the party seeking service or the party,
if the party is not represented
27 by an attorney, shall cause a copy of the
process and petition or other
28 document to be placed in an envelope
addressed to the person to be
29 served in accordance with K.S.A. 60-304,
and amendments thereto, ad-
30 equate postage to be affixed and the sealed
envelope to be placed in the
31 United States mail as certified mail return
receipt requested with instruc-
32 tions to the delivering postal employee to
show to whom delivered, date
33 of delivery, and address where delivered.
The sheriff, party's attorney or
34 the party, if the party is not represented
by an attorney, shall execute a
35 return on service stating the nature of the
process, the date on which the
36 process was mailed, and the name and
address on the envelope containing
37 the process mailed as certified mail return
receipt requested. The sheriff,
38 party or the party's attorney shall file
the return on service and the return
39 receipt or return envelope in the records
of the action. Service of process
40 shall be considered obtained under K.S.A.
60-203, and amendments
41 thereto, upon the delivery of the certified
mail envelope. If the certified
42 mail envelope is returned with an
endorsement showing refusal of deliv-
43 ery, the sheriff, serving party or the
party's attorney shall send a copy of
5
1 the process and petition or other
document to be served to the defendant
2 by ordinary, first-class mail. The
mailing shall be evidenced by a certificate
3 of mailing which shall be filed with
the clerk. Service shall be considered
4 obtained upon the mailing by
ordinary, first-class mail. Failure to claim
5 certified mail service is not refusal
of service within the meaning of this
6 subsection.
7
(c) (d) Personal and residence
service. (1) When The plaintiff
files
8 may file a written request
with the clerk for service other than by
certified
9 mail, service of process
shall be made by personal or residence service.
10 Personal service shall be made by
delivering or offering to deliver a copy
11 of the process and accompanying documents
to the person to be served.
12 Residence service shall be made by leaving
a copy of the process and
13 petition, or other document to be served,
at the dwelling house or usual
14 place of abode of the person to be served
with some person of suitable
15 age and discretion residing therein. If
service cannot be made upon an
16 individual, other than a minor or a
disabled person, by personal or resi-
17 dence service, service may be made by
leaving a copy of the process and
18 petition, or other document to be served,
at the defendant's dwelling
19 house or usual place of abode and mailing a
notice that such copy has
20 been left at such house or place of abode
to the individual by first-class
21 mail.
22 (2) When process
is to be served under this subsection, the clerk of
23 the court shall deliver the process and
sufficient copies of the process and
24 petition, or other document to be served,
to the sheriff of the county
25 where the process is to be served or, if
requested, to a person appointed
26 to serve process or to the plaintiff's
attorney.
27 (3) Service, levy
and execution of all process under this subsection,
28 including, but not limited to, writs of
execution, orders of attachment,
29 replevin orders, orders for delivery, writs
of restitution and writs of assis-
30 tance, shall be made by a sheriff within
the sheriff's county, by the sheriff's
31 deputy, by an attorney admitted to the
practice of law before the supreme
32 court of Kansas or by some person appointed
as a process server by a
33 judge or clerk of the district court,
except that a subpoena may also be
34 served by any other person who is not a
party and is not less than 18 years
35 of age. Process servers shall be appointed
freely and may be authorized
36 either to serve process in a single case or
in cases generally during a fixed
37 period of time. A process server or an
authorized attorney may make the
38 service anywhere in or out of the state and
shall be allowed the fees
39 prescribed in K.S.A. 28-110, and amendments
thereto, for the sheriff and
40 such other fees and costs as the court
shall allow. All persons authorized
41 under this subsection to serve, levy and
execute process shall be consid-
42 ered an "officer" as used in K.S.A. 60-706
and 60-2401 and amendments
43 thereto.
6
1 (4) In all
cases when the person to be served, or an agent authorized
2 by the person to accept service of
process, refuses to receive copies
3 thereof, the offer of the duly
authorized process server to deliver copies
4 thereof, and the refusal, shall be a
sufficient service of the process.
5
(d) (e) Acknowledgment or
appearance. An acknowledgment of serv-
6 ice on the summons is equivalent to
service. The voluntary appearance
7 by a defendant is equivalent to
service as of the date of appearance.
8 Sec.
3 K.S.A. 1999 Supp. 60-312 is hereby amended to read as
fol-
9 lows: 60-312. Proof of service
shall be made as follows:
10 (a) Personal
and residence service. (1) Every officer to whom
sum-
11 mons or other process shall be delivered
for service within or without the
12 state, shall make a statement subject to
penalty of perjury as provided in
13 K.S.A. 21-3805 and amendments thereto as to
the time, place and manner
14 of service of such writ.
15 (2) If service of
such process is directed to and delivered to a person,
16 other than an officer, for service, such
person shall make affidavit as to
17 the time, place and manner of such person's
service thereof.
18 (b) Service by
certified mail. Service by certified mail shall be proven
19 in the manner provided by subsection
(b) (c) of K.S.A. 60-303 or subsec-
20 tion (e) of K.S.A. 60-308, and amendments
thereto.
21
(c) Publication service. Service by publication shall
be proven by an
22 affidavit showing the dates upon which and
the newspaper in which the
23 notice of publication was published. A copy
of the notice shall be attached
24 to the affidavit which shall be filed in
the cause. When mailing of copies
25 of the publication notice is required in
accordance with subsection (e) of
26 K.S.A. 60-307 and amendments thereto, the
proof of such mailing shall
27 be by affidavit of the person who mailed
such copies and such affidavit
28 shall be filed with the clerk of the court
in which the action has been
29 filed. If such mailing was by certified
mail, the return receipt shall be
30 made a part of the affidavit and filed
therewith.
31 (d) Time for
return. The officer or other person receiving a summons
32 or other process shall make a return of
service promptly and in any event
33 within 10 days after the service is
effected. If the process cannot be served
34 it shall be returned to the court within 30
days after the date of issue with
35 a statement of the reason for the failure
to serve the same, except the
36 time for service thereof may be extended up
to 90 days from the date of
37 issue by order of the court or judge of the
court to which it is returnable.
38 Immediately upon receipt of the return upon
any summons or other pro-
39 cess by the clerk of the court issuing the
same, such clerk shall mail a
40 copy of such return to the attorney for the
party requesting the issuance
41 of such summons or other process or, if
such party has no attorney, then
42 to the requesting party's self.
43 Sec.
4. K.S.A. 61-1803 is hereby amended to read as follows:
61-
7
1 1803. (a) Methods of service of
process within this state, except service
2 by publication, are described in this
section. Service of process outside
3 the state shall be made in
substantial compliance with the applicable
4 provisions of K.S.A. 60-308, and
amendments thereto.
5
(b) Service by certified mail. Except if the attorney
for the party or
6 the party, if the party is not
represented by an attorney, requests personal
7 or residence service pursuant to
subsection (c) (d); if the attorney or
the
8 party requesting service elects to
serve process by certified mail pursuant
9 to this subsection
(d); or as otherwise provided by law, the sheriff of the
10 county wherein the action is filed shall
serve any process by certified mail,
11 any method authorized by this
section.
12
(c) Service by certified mail. Service of process
by certified mail shall
13 be evidenced by return receipt signed by
any person or by restricted
14 delivery, unless otherwise permitted by
this article. The sheriff, attorney
15 for the party seeking service or the party,
if the party is not represented
16 by an attorney, shall cause a copy of the
process and petition or other
17 document to be placed in an envelope
addressed to the person to be
18 served in accordance with K.S.A. 61-1805,
and amendments thereto, ad-
19 equate postage to be affixed and the sealed
envelope to be placed in the
20 United States mail as certified mail return
receipt requested with instruc-
21 tions to the delivering postal employee to
show to whom delivered, date
22 of delivery, and address where delivered.
The sheriff, party's attorney or
23 the party, if the party is not represented
by an attorney, shall execute a
24 return on service stating the nature of the
process, the date on which the
25 process was mailed, and the name and
address on the envelope containing
26 the process mailed as certified mail return
receipt requested. The sheriff,
27 party or the party's attorney shall file
the return on service and the return
28 receipt or return envelope in the records
of the action. Service of process
29 shall be considered obtained under K.S.A.
61-1703, and amendments
30 thereto, upon the delivery of the certified
mail envelope. If the certified
31 mail envelope is returned with an
endorsement showing refusal of deliv-
32 ery, the sheriff, serving party or the
party's attorney shall send a copy of
33 the process and petition or other document
to be served to the defendant
34 by ordinary, first-class mail. The mailing
shall be evidenced by a certificate
35 of mailing which shall be filed with the
clerk. Service shall be considered
36 obtained upon the mailing by ordinary,
first-class mail. Failure to claim
37 certified mail service is not refusal of
service within the meaning of this
38 subsection.
39 (c)
(d) Personal and residence service. (1)
When The plaintiff files
40 may file a written request with the
clerk for service other than by certified
41 mail, service of process shall be
made by personal or residence service.
42 Personal service shall be made by
delivering or offering to deliver a copy
43 of the process and accompanying documents
to the person to be served.
8
1 Residence service shall be made by
leaving a copy of the process and
2 petition, or other document to be
served, at the dwelling house or usual
3 place of abode of the person to be
served with some person of suitable
4 age and discretion residing therein.
If service cannot be made upon an
5 individual, other than a minor or a
disabled person, by personal or resi-
6 dence service, service may be made by
leaving a copy of the process and
7 petition, or other document to be
served, at the defendant's dwelling
8 house or usual place of abode and
mailing a notice that such copy has
9 been left at such house or place of
abode to the individual by first-class
10 mail.
11 (2) When process
is to be served under this subsection, the clerk of
12 the court shall deliver the process and
sufficient copies of the process and
13 petition, or other document to be served,
to the sheriff of the county
14 where the process is to be served or, if
requested, to a person appointed
15 to serve process or to the plaintiff's
attorney.
16 (3) Service, levy
and execution of all process under this subsection,
17 including, but not limited to, writs of
execution, orders of attachment,
18 replevin orders, orders for delivery, writs
of restitution and writs of assis-
19 tance, shall be made by a sheriff within
the sheriff's county, by the sheriff's
20 deputy, by an attorney admitted to the
practice of law before the supreme
21 court of Kansas or by some person appointed
as a process server by a
22 judge or clerk of the district court,
except that a subpoena may also be
23 served by any other person who is not a
party and is not less than 18 years
24 of age. Process servers shall be appointed
freely and may be authorized
25 either to serve process in a single case or
in cases generally during a fixed
26 period of time. A process server or an
authorized attorney may make the
27 service anywhere in or out of the state and
shall be allowed the fees
28 prescribed in K.S.A. 28-110, and amendments
thereto, for the sheriff and
29 such other fees and costs as the court
shall allow. All persons authorized
30 under this subsection to serve, levy and
execute process shall be consid-
31 ered an "officer" as used in K.S.A. 60-706
and 60-2401 and amendments
32 thereto.
33 (4) In all cases
when the person to be served, or an agent authorized
34 by the person to accept service of process,
refuses to receive copies
35 thereof, the offer of the duly authorized
process server to deliver copies
36 thereof, and the refusal, shall be a
sufficient service of the process.
37 (d)
(e) Acknowledgment or appearance. An
acknowledgment of serv-
38 ice on the summons is equivalent to
service. The voluntary appearance
39 by a defendant is equivalent to service as
of the date of appearance.
40 Sec.
5. K.S.A. 61-1807 is hereby amended to read as follows:
61-
41 1807. Proof of service shall be made
as follows: (a) Personal and res-
42 idence service. (1) Every
officer to whom summons or other process
43 shall be delivered for service within or
without the state, shall make return
9
1 thereof in writing stating the time,
place and manner of service of such
2 writ, and shall sign such officer's
name to such return.
3 (2) If such
process is directed to and delivered to a person other than
4 by an officer for service, such
person shall make affidavit as to the time,
5 place and manner of such person's
service thereof.
6
(b) Service by mail. Service by certified mail shall be
proven in the
7 manner provided by subsection (e) of
K.S.A. 60-308 or subsection (b) (c)
8 of K.S.A. 61-1803, and amendments
thereto.
9
(c) Publication service. Service by publication shall
be proven by an
10 affidavit showing the dates upon, and the
newspaper in which the notice
11 of publication was published. A copy of the
notice shall be attached to
12 the affidavit which shall be filed in the
cause. When mailing of copies of
13 the publication notice is required in
accordance with subsection (e) of
14 K.S.A. 60-307, and amendments thereto, the
proof of such mailing shall
15 be by affidavit of the person who mailed
such copies and such affidavit
16 shall be filed with the clerk of the court
in which the action has been
17 filed. Any return receipt shall be made a
part of the affidavit and filed
18 therewith.
19 (d) Time for
return. The officer or other person receiving a summons
20 or other process in forcible detainer cases
shall make return of service
21 promptly and, in any event, no later than
three days before the date stated
22 in the summons for the defendant to either
appear or plead to the peti-
23 tion. In all other cases return of service
shall be made promptly and in
24 any event no later than five days before
the date stated in the summons
25 for the defendant to either appear or plead
to the petition. If the process
26 cannot be served as directed it shall be
returned to the court forthwith
27 with a statement of the reason for the
failure to serve the same.
28 (e) Amendment
of return. At any time in the judge's discretion and
29 upon such terms as the judge deems just,
the judge may allow any process,
30 return or proof of service thereof to be
amended, unless it clearly appears
31 that material prejudice would result to the
substantial rights of the party
32 against whom the process issued.
33 Sec. 6. K.S.A. 17-1642, 60-303,
61-1803 and 61-1807 and K.S.A.
34 1999 Supp. 60-312 are hereby repealed.
35 Sec. 7. This act shall
take effect and be in force from and after its
36 publication in the statute book.