Session of 2000
HOUSE BILL No. 2956
By Representatives Flora, Hermes, Hutchins, Jenkins, Kirk,
Kuether,
Mays, Nichols and Toelkes
2-9
10 AN ACT
concerning civil procedure for limited actions; amending K.S.A.
11 61-1803 and 61-1807
and repealing the existing sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 New Section
1. The supreme court of this state shall adopt rules to
15 govern the electronic filing of court
matters and the storage of and access
16 by the public to the same, to govern the
form of pleadings, other docu-
17 ments to be filed and such other matters as
is necessary under the code
18 of civil procedure for limited actions.
19 New Sec.
2. Judicial districts in this state may accept for filing
under
20 this act lawsuits filed in the same method
in which lawsuits are filed prior
21 to the adoption of this act, or filed
pursuant to an electronic filing pro-
22 cedure, or a combination of the two, as
long as any such filings comply
23 with the rules of the supreme court of this
state.
24 Sec.
3. K.S.A. 61-1803 is hereby amended to read as follows:
61-
25 1803. (a) Methods of service of
process within this state, except service
26 by publication, are described in
this section. Service of process outside
27 the state shall be made in
substantial compliance with the applicable
28 provisions of K.S.A. 60-308, and
amendments thereto.
29
(b) Service by certified
mail. Except if the attorney for the party
or
30 the party, if the party is not
represented by an attorney, requests personal
31 or residence service pursuant to
subsection (c); if the attorney or the party
32 requesting service elects to serve
process by certified mail pursuant to
33 this subsection; or as otherwise
provided by law, the sheriff of the county
34 wherein the action is filed shall
serve any process by certified mail, evi-
35 denced by return receipt signed by
any person or by restricted delivery,
36 unless otherwise permitted by this
article. The sheriff, attorney for the
37 party seeking service or the party,
if the party is not represented by an
38 attorney, shall cause a copy of the
process and petition or other document
39 to be placed in an envelope
addressed to the person to be served in
40 accordance with K.S.A. 61-1805, and
amendments thereto, adequate
41 postage to be affixed and the
sealed envelope to be placed in the United
42 States mail as certified mail
return receipt requested with instructions to
43 the delivering postal employee to
show to whom delivered, date of deliv-
2
1 ery, and address where
delivered. The sheriff, party's attorney or the
2 party, if the party is not
represented by an attorney, shall execute a return
3 on service stating the nature
of the process, the date on which the process
4 was mailed, and the name and
address on the envelope containing the
5 process mailed as certified
mail return receipt requested. The sheriff,
6 party or the party's attorney
shall file the return on service and the return
7 receipt or return envelope in
the records of the action. Service of process
8 shall be considered obtained
under K.S.A. 61-1703, and amendments
9 thereto, upon the delivery of
the certified mail envelope. If the certified
10 mail envelope is returned with an
endorsement showing refusal of deliv-
11 ery, the sheriff, serving party or
the party's attorney shall send a copy of
12 the process and petition or other
document to be served to the defendant
13 by ordinary, first-class mail. The
mailing shall be evidenced by a certificate
14 of mailing which shall be filed
with the clerk. Service shall be considered
15 obtained upon the mailing by
ordinary, first-class mail. Failure to claim
16 certified mail service is not
refusal of service within the meaning of this
17 subsection.
18
(c) Personal and residence service.
(1) When the plaintiff files a writ-
19 ten request with the clerk for
service other than by certified mail, service
20 of process shall be made by
personal or residence service. Personal service
21 shall be made by delivering or
offering to deliver a copy of the process
22 and accompanying documents to the
person to be served. Residence serv-
23 ice shall be made by leaving a copy
of the process and petition, or other
24 document to be served, at the
dwelling house or usual place of abode of
25 the person to be served with some
person of suitable age and discretion
26 residing therein. If service cannot
be made upon an individual, other than
27 a minor or a disabled person, by
personal or residence service, service
28 may be made by leaving a copy of
the process and petition, or other
29 document to be served, at the
defendant's dwelling house or usual place
30 of abode and mailing a notice that
such copy has been left at such house
31 or place of abode to the individual
by first-class mail.
32 (2) When
process is to be served under this subsection, the clerk
of
33 the court shall deliver the process
and sufficient copies of the process and
34 petition, or other document to be
served, to the sheriff of the county
35 where the process is to be served
or, if requested, to a person appointed
36 to serve process or to the
plaintiff's attorney.
37
(3) Service, levy and execution of all process under this
subsection,
38 including, but not limited to,
writs of execution, orders of attachment,
39 replevin orders, orders for
delivery, writs of restitution and writs of assis-
40 tance, shall be made by a sheriff
within the sheriff's county, by the sheriff's
41 deputy, by an attorney admitted to
the practice of law before the supreme
42 court of Kansas or by some person
appointed as a process server by a
43 judge or clerk of the district
court, except that a subpoena may also be
3
1 served by any other person
who is not a party and is not less than 18 years
2 of age. Process servers shall
be appointed freely and may be authorized
3 either to serve process in a
single case or in cases generally during a fixed
4 period of time. A process
server or an authorized attorney may make the
5 service anywhere in or out of
the state and shall be allowed the fees
6 prescribed in K.S.A. 28-110,
and amendments thereto, for the sheriff and
7 such other fees and costs as
the court shall allow. All persons authorized
8 under this subsection to
serve, levy and execute process shall be consid-
9 ered an "officer" as used in
K.S.A. 60-706 and 60-2401 and amendments
10 thereto.
11 (4) In
all cases when the person to be served, or an agent
authorized
12 by the person to accept service of
process, refuses to receive copies
13 thereof, the offer of the duly
authorized process server to deliver copies
14 thereof, and the refusal, shall be
a sufficient service of the process.
15
(d) Acknowledgment or appearance.
An acknowledgment of service
16 on the summons is equivalent to
service. The voluntary appearance by a
17 defendant is equivalent to service
as of the date of appearance. (a) Service,
18 levy and execution of all process under
this act shall be made by a sheriff
19 or deputy within the sheriff's county,
by an attorney admitted to the
20 practice of law before the supreme court
of Kansas, by a party to a lawsuit,
21 or by some person appointed as a process
server by a judge, except that
22 a subpoena may also be served by any
person who is not a party and is
23 not less than 18 years of age. An
appointed process server may be an
24 individual, corporation, partnership,
court employee or other legal entity.
25 An authorized attorney and appointed
process server shall have the same
26 authority as the sheriff or deputy to
serve, levy and execute all process
27 under this act, including, but not
limited to, writs of execution, orders of
28 attachment, replevin orders, orders for
delivery, writs of restitution and
29 writs of assistance. All persons
authorized under this subsection to serve,
30 levy and execute process shall be
considered an "officer" as used in K.S.A.
31 60-706 and 60-2401, and amendments
thereto.
32 (b) Process
servers shall be appointed freely and may be authorized
33 either to serve process in a single case
or in cases generally during a fixed
34 period of time. A process server or an
authorized attorney may make the
35 service anywhere in or out of the state
and shall be allowed the fees pre-
36 scribed in K.S.A. 28-110, and amendments
thereto, for the sheriff and
37 such other fees and costs as the court
shall allow. The mileage and fees of
38 a appointed process server incurred in
the service of process shall upon
39 order of the court be allowed as court
costs in the lawsuit.
40 (c) The
sheriff of the county where the lawsuit is filed shall serve
all
41 process unless request is made by the
party requesting issuance of process,
42 or the court enters an order, for
someone else to serve the process. The
43 clerk of the court shall deliver,
electronically or otherwise, the process and
4
1 petition or other document to be
served.
2 (d) The
person serving process may serve the process in any of the
3 methods set forth below in this
subsection.
4
(1) First class mail, certified mail or registered mail.
Process may be
5 sent to a person by first class
mail, certified mail or registered mail, by
6 placing a copy of the process and
petition or other document to be served
7 in an envelope addressed to the
person to be served in accordance with
8 K.S.A. 61-1805, and amendments
thereto, at such person's last known
9 address. The envelope used for
such service shall be addressed to the
10 person in accordance with K.S.A.
61-1805, and amendments thereto, shall
11 contain adequate postage for the type of
mail used, and shall contain such
12 additional endorsements or receipts as
is required for the type of mail
13 used. Such envelope shall be sealed and
placed in the United States mail.
14 Service by first class mail shall be
complete when the envelope is placed
15 in the mail unless returned undelivered.
Service by certified mail or reg-
16 istered mail shall be complete upon
delivery of the envelope by the post
17 office. If the certified mail or
registered mail envelope is returned with an
18 endorsement showing refusal of delivery,
the person serving the same shall
19 send a copy of the process and petition
or other document to be served
20 to the defendant by first-class mail.
Service shall be considered obtained
21 upon the mailing by first-class mail
unless returned undelivered. Failure
22 to claim certified mail or registered
mail service is not refusal of service
23 within the meaning of this
subsection.
24 (2) Personal
and residence service. Personal service shall be made by
25 delivering or offering to deliver a copy
of the process and accompanying
26 documents to the person to be served.
Residence service shall be made by
27 leaving a copy of the process and
petition, or other document to be served,
28 at the dwelling house or usual place of
abode of the person to be served
29 with some person of suitable age and
discretion residing therein. If service
30 cannot be made upon an individual, other
than a minor or a disabled
31 person, by personal or residence
service, service may be made by leaving
32 a copy of the process and petition, or
other document to be served, at the
33 dwelling house or usual place of abode
of the person to be served and
34 mailing a notice to the individual by
first-class mail that such copy has
35 been left at such house or place of
abode.
36
(3) Telefacsimile communication. Process may be sent to a
person by
37 telefacsimile communication. Service is
complete upon receipt of a confir-
38 mation generated by the transmitting
machine.
39 (4) Internet
electronic mail. Process may be sent to a person by in-
40 ternet electronic mail as provided in
the rules to be adopted hereunder
41 by the supreme court.
42
(5) Publication. Service of process by publication may be made
pur-
43 suant to the provisions of K.S.A.
60-307, and amendments thereto, which
5
1 are not inconsistent or in
conflict with this act.
2 (e) When
the person to be served, or an agent authorized by the per-
3 son to accept service of process,
refuses to accept or receive copies of the
4 process, the offer of the process
server to deliver copies thereof, and the
5 refusal, shall be a sufficient
service of the process.
6 (f) An
acknowledgment of service on the summons is equivalent to
7 service. The voluntary appearance
by a defendant is equivalent to service
8 as of the date of
appearance.
9 Sec.
4. K.S.A. 61-1807 is hereby amended to read as follows:
61-
10 1807. Proof of service shall be made as
follows: (a) Personal and residence
11 service. (1) Every officer to whom
summons or other process shall be
12 delivered for service within or without the
state, shall make return thereof
13 in writing stating the time, place and
manner of service of such writ, and
14 shall sign such officer's name to such
return.
15 (2) If such
process is directed to and delivered to a person other than
16 by an officer for service, such person
shall make affidavit as to the time,
17 place and manner of such person's service
thereof.
18 (b) Service by
mail. Service by certified mail shall be proven in the
19 manner provided by subsection (e) of K.S.A.
60-308 or subsection (b)
20 (d)(1) of K.S.A. 61-1803, and
amendments thereto.
21
(c) Publication service. Service by publication shall
be proven by an
22 affidavit showing the dates upon, and the
newspaper in which the notice
23 of publication was published. A copy of the
notice shall be attached to
24 the affidavit which shall be filed in the
cause. When mailing of copies of
25 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. Any return receipt shall be made a
part of the affidavit and filed
30 therewith.
31 (d) Time for
return. The officer or other person receiving a summons
32 or other process in forcible detainer cases
shall make return of service
33 promptly and, in any event, no later than
three days before the date stated
34 in the summons for the defendant to either
appear or plead to the peti-
35 tion. In all other cases return of service
shall be made promptly and in
36 any event no later than five days before
the date stated in the summons
37 for the defendant to either appear or plead
to the petition. If the process
38 cannot be served as directed it shall be
returned to the court forthwith
39 with a statement of the reason for the
failure to serve the same.
40 (e) Amendment
of return. At any time in the judge's discretion and
41 upon such terms as the judge deems just,
the judge may allow any process,
42 return or proof of service thereof to be
amended, unless it clearly appears
43 that material prejudice would result to the
substantial rights of the party
6
1 against whom the process
issued.
2 Sec. 5. K.S.A. 61-1803 and
61-1807 are hereby repealed.
3 Sec. 6. This act
shall take effect and be in force from and after its
4 publication in the statute book.