An Act concerning civil procedure for limited actions; amending
K.S.A. 58-227, 58-2542,
58-25,102, 60-201, 60-213, 60-265, 60-304, 60-725, 60-2418 and
75-6103 and K.S.A.
1999 Supp. 19-4737, 20-302b, 20-362, 58-2565 and 60-2202 and
repealing the existing
sections; also repealing K.S.A. 61-1601, 61-1603 through 61-1605,
61-1608, 61-1701
through 61-1703, 61-1703a, 61-1704 through 61-1709, 61-1711 through
61-1719, 61-
1721 through 61-1723, 61-1725a, 61-1726, 61-1728, 61-1801 through
61-1803, 61-1805
through 61-1807, 61-1901 through 61-1909, 61-2001 through 61-2012,
61-2101, 61-
2102, 61-2104 through 61-2109, 61-2201 through 61-2204, 61-2301
through 61-2304,
61-2306 through 61-2311, 61-2402 through 61-2405, 61-2502, 61-2503,
and 61-2601
through 61-2605, and K.S.A. 1999 Supp. 61-1710, 61-1720, 61-1724,
61-1725, 61-1729,
61-2013, 61-2014, 61-2103, 61-2305, 61-2401 and
61-2501.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. This act shall be
known and may be cited as the code
of civil procedure for limited actions.
New Sec. 2. (a) This act may be
used to govern the procedure for a
civil lawsuit filed in the district court which:
(1) Seeks judgment for a debt which is
not secured by a lien and
arises out of a contract for the providing of goods, services or
money,
without limitation as to the amount claimed in the lawsuit;
(2) seeks judgment for a debt which is
secured by a lien and arises
out of a contract for the providing of goods, services or money,
where the
amount claimed in the lawsuit, not counting costs, interest and
fees, does
not exceed $25,000; or
(3) seeks judgment where the claim does
not arise out of a contract
and the amount claimed in the lawsuit, not counting costs, interest
and
fees, does not exceed $25,000.
(b) The following types of lawsuits may
not be filed under this act:
(1) Actions against any officers of the
state, or any subdivisions
thereof, for misconduct in office, except as authorized by the
Kansas tort
claims act, K.S.A. 75-6101 et seq., and amendments
thereto;
(2) actions for specific performance of
contracts for real estate;
(3) actions in which title to real estate
is sought to be recovered or
in which an interest in real estate, either legal or equitable, is
sought to
be established, except that nothing in this paragraph shall be
construed
as limiting the right to bring an action for forcible detainer as
provided
in sections 78 through 85, and amendments thereto;
(4) actions to foreclose real estate
mortgages or to establish and fore-
close liens on real estate as provided in article 11 of chapter 60
of the
Kansas Statutes Annotated, and amendments thereto;
(5) actions for divorce, separate
maintenance or custody of minor
children;
(6) habeas corpus;
(7) receiverships;
(8) change of name;
(9) declaratory judgments;
(10) mandamus and quo warranto;
(11) injunctions;
(12) class actions;
(13) rights of majority; and
(14) any appeal from an order or ruling
of an administrative officer
or body.
New Sec. 3. The supreme court of
this state shall adopt rules to gov-
ern the electronic filing of court matters and the storage of and
access by
the public to the same, to govern the form of pleadings, other
documents
to be filed and such other matters as is necessary under the code
of civil
procedure for limited actions.
New Sec. 4. Judicial districts in
this state may accept for filing under
this act lawsuits filed in the same method in which lawsuits are
filed prior
to the adoption of this act, or filed pursuant to an electronic
filing pro-
cedure, or a combination of the two, as long as any such filings
comply
with the rules of the supreme court of this state.
New Sec. 5. Without regard to
whether the word ``court'' or the word
``judge'' is used in any provisions of this act, all trials upon
the merits shall
be conducted in open court and in a regular courtroom within the
county
if reasonably possible. All other acts or proceedings, including
the entry
of a ruling or judgment, may be done or conducted by a judge or
judge
pro tem in chambers, or at such other place within the county as is
des-
ignated by the judge for the conduct of court business, without the
at-
tendance of the clerk or other court officials.
New Sec. 6. The provisions of this
act shall be liberally construed to
secure the just, speedy and inexpensive determination of every
action or
proceeding.
New Sec. 7. The party who files a
lawsuit shall be called the plaintiff
and the adverse party shall be called the defendant.
New Sec. 8. (a) An action pursuant
to the code of civil procedure for
limited actions is commenced at the time of:
(1) Filing a petition with the clerk of
the district court, if service of
process is obtained or the first publication is made for service by
publi-
cation, within 90 days after the petition is filed, except that the
court may
extend that time an additional 30 days upon a showing of good cause
by
the plaintiff; or
(2) service of process or first
publication, if service of process or first
publication is not made within the time specified by provision
(1).
(b) If service of process or first
publication purports to have been
made but is later adjudicated to have been invalid due to any
irregularity
in form or procedure or any defect in making service, the action
shall
nevertheless be deemed to have been commenced at the applicable
time
under subsection (a) if valid service is obtained or first
publication is made
within 90 days after that adjudication, except that the court may
extend
that time an additional 30 days upon a showing of good cause by
the
plaintiff.
(c) An entry of appearance by the
defendant shall have the same
effect as service of process on the defendant.
(d) The limitation of time for commencing
lawsuits pursuant to the
code of civil procedure for limited actions shall be as provided in
article
5 of chapter 60 of the Kansas Statutes Annotated, and
amendments
thereto, except where a different limitation is specifically
provided by
statute.
New Sec. 9. (a) Pleadings. Only the
pleadings set forth in K.S.A. 60-
207, and amendments thereto, shall be allowed in an action
commenced
pursuant to the code of civil procedure for limited actions, but
the only
pleading required is a petition. Third-party practice in the manner
pre-
scribed by K.S.A. 60-214, and amendments thereto, shall be
permitted.
(b) Petitions. A petition shall state the
claim or claims which the plain-
tiff has against the defendant. It shall set forth the current
address, phone
number, fax phone number and electronic mail address for the
plaintiff.
If the plaintiff is not represented by an attorney, the petition
shall be
signed by the plaintiff.
(c) Motions and other papers. An
application to the court or judge
for an order shall be by motion which, unless made during a hearing
or
trial, shall be made in writing, shall state the particular grounds
for the
motion, shall set forth the relief or order sought, and shall
contain a notice
of when the motion is to be heard by the court.
New Sec. 10. (a) A defendant shall
either appear, in person or by
counsel, at the time and date set forth in the summons or file on
or before
such date a written answer. If the defendant appears and disputes
the
petition, the defendant shall file an answer not later than 10 days
after
the appearance date. The defendant shall promptly send a copy of
the
answer after filing to the plaintiff's attorney or the plaintiff,
if no attorney.
If the defendant is not represented by an attorney, the answer
shall be
signed by the defendant.
(b) The answer when filed shall state the
following:
(1) What the dispute is;
(2) any affirmative defenses the
defendant has to the claim; and
(3) the current address, phone number,
fax phone number and elec-
tronic mail address for the defendant.
(c) If the defendant asserts a
counterclaim against the plaintiff in the
answer, the plaintiff may file a reply disputing the defendant's
counter-
claim not later than 10 days after service of the defendant's
answer. The
plaintiff's reply shall comply with the requirements set forth in
subsection
(b). If the plaintiff does not file a reply, the plaintiff waives
the right to
present any dispute to the defendant's counterclaim.
(d) Affirmative defenses are those listed
in subsection (c) of K.S.A.
60-208, and amendments thereto.
(e) The date the defendant is required to
appear as set forth in the
summons may be continued by the court upon request of either party
in
such manner as the court shall prescribe.
New Sec. 11. (a) (1) Upon timely
application of the plaintiff and in
the discretion of the court, a defendant may be required to plead
any
counterclaim which such party has against the plaintiff, if it
arises out of
the transaction or occurrence that is the subject matter of the
plaintiff's
claim and does not require for its adjudication the presence of
third par-
ties of whom the court cannot acquire jurisdiction, except that the
de-
fendant shall not be required to plead any such claim if: (A) At
the time
the action was commenced the claim was the subject of another
pending
action; or (B) the plaintiff brought suit upon such plaintiff's
claim by
attachment or other process by which the court did not acquire
jurisdic-
tion to render a personal judgment on that claim, and the defendant
is
not pleading any other counterclaim.
(2) A defendant shall not be estopped
from asserting in a subsequent
action any claim which such defendant may have against the
plaintiff, if
such defendant is not required to plead such claim pursuant to this
sec-
tion. Except as provided in subsections (a) and (k), the provisions
of K.S.A.
60-213, and amendments thereto, relating to counterclaims and
cross-
claims, shall apply to proceedings pursuant to the code of civil
procedure
for limited actions, subject to the provisions of section 17, and
amend-
ments thereto.
(b) Notwithstanding the provisions of
subsection (a), in an action in-
volving a claim governed by K.S.A. 60-258a, and amendments thereto,
a
party shall state as a counterclaim any claim that party has
against any
opposing party arising out of the transaction or occurrence that is
the
subject matter of the claim governed by K.S.A. 60-258a, and
amendments
thereto.
New Sec. 12. The content and form
of all pleadings and other papers
filed shall be set forth by rule of the supreme court of this
state.
New Sec. 13. (a) The petition shall
be served on the defendant in
accordance with the provisions of sections 19 through 24, and
amend-
ments thereto.
(b) All pleadings other than the
petition, motions which cannot be
heard ex parte, notices, and orders which are required by their
terms to
be served, shall be served upon the party's attorney of record, if
the party
is represented by an attorney, or upon the party if not represented
by an
attorney, in the following manner:
(1) By delivering a copy;
(2) by mailing a copy by first-class
mail, certified mail or registered
mail to the last known address; or
(3) if no address is known, by leaving a
copy with the clerk of the
court. For the purposes of this subsection, delivering a copy
means:
Handing it to the attorney or to the party; leaving it at the
attorney's or
party's office with the clerk or other person in charge thereof or,
if there
is no one in charge, leaving it in a conspicuous place therein; or,
if the
attorney's or party's office is closed or the person to be served
has no
office, leaving it at the attorney's or party's dwelling house or
usual place
of abode with some person of suitable age and discretion then
residing
therein. Service by mail is complete upon mailing. All such
pleadings,
motions, notices and orders covered by this subsection shall be
filed with
the court either before service or within a reasonable time
thereafter.
(c) The filing of pleadings and other
papers with the court as required
or permitted by this act shall be done in accordance with rules of
the
supreme court.
New Sec. 14. The provisions of
K.S.A. 60-209, 60-210 and 60-211,
and amendments thereto, shall apply to pleadings filed under
sections 7
through 18, and amendments thereto.
New Sec. 15. The provisions of
K.S.A. 60-206, and amendments
thereto, governing the computation and extension of time, shall
govern
actions pursuant to the code of civil procedure for limited
actions, except
where provisions to the contrary are specifically included in the
code.
New Sec. 16. Upon motion of any
party, the court shall order that
an action filed under the code of civil procedure for limited
actions, except
an action filed pursuant to the small claims procedure act, article
27 of
chapter 61 of the Kansas Statutes Annotated, and amendments
thereto,
shall thereafter be governed by the provisions of chapter 60 of the
Kansas
Statutes Annotated, and amendments thereto. The party obtaining
an
order under this section shall pay any additional docket fee
required had
the action been filed under chapter 60 of the Kansas Statutes
Annotated,
and amendments thereto. Upon such order of the court and payment
of
any additional docket fee, the clerk of the district court shall
renumber
the case as a case filed under chapter 60 of the Kansas Statutes
Annotated,
and amendments thereto, in the same manner as required by K.S.A.
60-
2418, and amendments thereto.
New Sec. 17. (a) Whenever a
plaintiff demands judgment beyond
the scope of actions authorized by the provisions of section 2, and
amend-
ments thereto, the court shall either:
(1) Transfer the action to the chief
judge of the judicial district for
assignment and hearing pursuant to chapter 60 of the Kansas
Statutes
Annotated, and amendments thereto, assessing the increased docket
fee
to the plaintiff; or (2) allow the plaintiff to amend the pleadings
and
service of process to bring the demand for judgment within the
scope of
actions authorized by the provisions of section 2, and
amendments
thereto, assessing the costs accrued to the plaintiff.
(b) If a defendant asserts a counterclaim
or cross-claim beyond the
scope of the code of civil procedure for limited actions, the case
shall be
referred by the chief judge for assignment and hearing pursuant to
chap-
ter 60 of the Kansas Statutes Annotated, and amendments thereto,
as-
sessing the increased docket fee to the defendant.
New Sec. 18. The following
provisions of article 2 of chapter 60 of
the Kansas Statutes Annotated, and amendments thereto, are
hereby
adopted by reference and made a part of this act as if fully set
forth herein,
insofar as such provisions are not inconsistent or in conflict with
the pro-
visions of this act:
(a) K.S.A. 60-215, and amendments
thereto, relating to amended and
supplemental pleadings, except that the time for filing amended
pleadings
and for responding thereto shall be 10 instead of 20 days;
(b) K.S.A. 60-217, and amendments
thereto, relating to capacity of
parties;
(c) K.S.A. 60-218, and amendments
thereto, providing for joinder of
claims and remedies, K.S.A. 60-219 and 60-220, and amendments
thereto, providing for joinder of parties, and K.S.A. 60-221, and
amend-
ments thereto, relating to misjoinder of parties and claims;
(d) K.S.A. 60-224, and amendments
thereto, relating to intervention,
and K.S.A. 60-225, and amendments thereto, providing for
substitution
of parties;
(e) K.S.A. 60-234, and amendments
thereto, relating to production
of documents and things for inspection;
(f) K.S.A. 60-241, and amendments
thereto, providing for dismissal
of actions;
(g) K.S.A. 60-244, and amendments
thereto, providing for proof of
records;
(h) K.S.A. 60-256, and amendments
thereto, relating to summary
judgment;
(i) K.S.A. 60-259 and 60-260, and
amendments thereto, concerning
new trial and relief from judgment or order, respectively;
(j) K.S.A. 60-261 and 60-263, and
amendments thereto, relating re-
spectively to harmless error and disability of a judge; and
(k) K.S.A. 60-264, and amendments
thereto, relating to process in
behalf of and against persons not parties.
New Sec. 19. Upon the filing of the
petition pursuant to the code of
civil procedure for limited actions, the clerk of the district
court shall
issue a summons for service upon each defendant in accordance with
this
act. Additional summonses may be issued as requested.
New Sec. 20. (a) The summons shall
be issued by the clerk, dated
the day it is issued and contain the information set forth in the
rules to
be adopted by the supreme court of this state. The summons shall
state
the time when the law requires the defendant to appear or file an
answer
in response to the petition, and shall notify such defendant that
in case
of such defendant's failure to appear or file an answer, judgment
by de-
fault will be rendered against such defendant for the relief
demanded in
the petition. The summons shall be in substantially the form set
forth in
the rules to be adopted hereunder by the supreme court.
(b) The time stated in the summons
requiring the defendant to ap-
pear in response to the petition shall be determined by the court.
Such
time shall be not less than 11 nor more than 50 days after the date
the
summons is issued.
New Sec. 21. (a) Methods of service
of process within this state, ex-
cept service by publication, are described in this section. Service
of pro-
cess outside the state shall be made in substantial compliance with
the
applicable provisions of K.S.A. 60-308, and amendments thereto.
(b) Who serves process. The sheriff of
the county in which the action
is filed shall serve any process by any method authorized by this
section,
or as otherwise provided by law, unless a party, either personally
or
through an attorney, elects to undertake responsibility for service
and so
notifies the clerk.
(c) Service by return receipt
delivery.
(1) Service of process by return receipt
delivery shall include service
effected by certified mail, priority mail, commercial courier
service, over-
night delivery service, or other reliable personal delivery service
to the
party addressed, in each instance evidenced by a written or
electronic
receipt showing to whom delivered, date of delivery, address where
de-
livered, and person or entity effecting delivery.
(2) The sheriff, party or party's
attorney shall cause a copy of the
process and petition or other document to be placed in a sealed
envelope
addressed to the person to be served in accordance with section 22,
and
amendments thereto, with postage or other delivery fees prepaid,
and the
sealed envelope placed in the custody of the person or entity
effecting
delivery.
(3) Service of process shall be
considered obtained under section 8,
and amendments thereto, upon the delivery of the sealed
envelope.
(4) After service and return of the
receipt, the sheriff, party, or party's
attorney shall execute a return on service stating the nature of
the process,
to whom delivered, the date of delivery, the address where
delivered, and
the person or entity effecting delivery. The original return of
service shall
be filed with the clerk, along with a copy of the return receipt
evidencing
such delivery.
(5) If the sealed envelope is returned
with an endorsement showing
refusal to accept delivery, the sheriff, party or the party's
attorney may
send a copy of the process and petition or other document by
first-class
mail addressed to the party to be served, or may elect other
methods of
service. If mailed, service shall be considered obtained three days
after
the mailing by first-class mail, postage prepaid, which shall be
evidenced
by a certificate of service filed with the clerk. If the unopened
envelope
sent first-class mail is returned as undelivered for any reason,
the sheriff,
party or party's attorney shall file an amended certificate of
service with
the clerk indicating nondelivery, and service by such mailing shall
not be
considered obtained. Mere failure to claim return receipt delivery
is not
refusal of service within the meaning of this subsection.
(d) Personal and residence service.
(1) The party may file a written request
with the clerk for personal
or residence service. Personal service shall be made by delivering
or of-
fering to deliver a copy of the process and accompanying documents
to
the person to be served. Residence service shall be made by leaving
a
copy of the process and petition, or other document to be served,
at the
dwelling house or usual place of abode of the person to be served
with
some person of suitable age and discretion residing therein. If
service
cannot be made upon an individual, other than a minor or a
disabled
person, by personal or residence service, service may be made by
leaving
a copy of the process and petition, or other document to be served,
at
the defendant's dwelling house or usual place of abode and mailing
a
notice that such copy has been left at such house or place of abode
to the
individual by first-class mail.
(2) When process is to be served under
this subsection, the clerk of
the court shall deliver the process and sufficient copies of the
process and
petition, or other document to be served, to the sheriff of the
county
where the process is to be served or, if requested, to a person
appointed
to serve process or to the plaintiff's attorney.
(3) Service, levy and execution of all
process under this subsection,
including, but not limited to, writs of execution, orders of
attachment,
replevin orders, orders for delivery, writs of restitution and
writs of assis-
tance, shall be made by a sheriff within the sheriff's county, by
the sheriff's
deputy, by an attorney admitted to the practice of law before the
supreme
court of Kansas or by some person appointed as a process server by
a
judge or clerk of the district court, except that a subpoena may
also be
served by any other person who is not a party and is not less than
18 years
of age. Process servers shall be appointed freely and may be
authorized
either to serve process in a single case or in cases generally
during a fixed
period of time. A process server or an authorized attorney may make
the
service anywhere in or out of the state and shall be allowed the
fees
prescribed in K.S.A. 28-110, and amendments thereto, for the
sheriff and
such other fees and costs as the court shall allow. All persons
authorized
under this subsection to serve, levy and execute process shall be
consid-
ered an ``officer'' as used in K.S.A. 60-706 and 60-2401, and
amendments
thereto.
(4) In all cases when the person to be
served, or an agent authorized
by the person to accept service of process, refuses to receive
copies
thereof, the offer of the duly authorized process server to deliver
copies
thereof, and the refusal, shall be a sufficient service of the
process.
(e) Publication service. Service of
process by publication may be
made pursuant to the provisions of K.S.A. 60-307, and
amendments
thereto, which are not inconsistent or in conflict with this
act.
(f) Acknowledgment or appearance. An
acknowledgment of service
on the summons is equivalent to service. The voluntary appearance
by a
defendant is equivalent to service as of the date of
appearance.
(g) The person serving process may serve
a garnishment process in
any of the following methods:
(1) First class mail. Process may be sent
to a person by first-class mail
by placing a copy of the process and petition or other document to
be
served in an envelope addressed to the person to be served in
accordance
with section 22, and amendments thereto, at such person's last
known
address. The envelope used for such service shall be addressed to
the
person in accordance with section 22, and amendments thereto, and
shall
contain adequate postage. Such envelope shall be sealed and placed
in
the United States mail. Service by first-class mail shall be
complete when
the envelope is placed in the mail unless returned undelivered.
Service
shall be considered obtained upon the mailing by first-class mail
unless
returned undelivered.
(2) Telefacsimile communication. Process
may be sent to a person by
telefacsimile communication. Service is complete upon receipt of a
con-
firmation generated by the transmitting machine.
(3) Internet electronic mail. Process may
be sent to a person by in-
ternet electronic mail as provided in the rules to be adopted
hereunder
by the supreme court.
New Sec. 22. (a) Service shall be
made promptly and, in any event,
in time to make a timely return of service as required by section
23, and
amendments thereto.
(b) If the defendant is a nonresident who
is employed in this state,
or if the place of residence of the defendant is unknown, the
plaintiff may
direct that the service of summons or other process shall be made
by
directing an officer, partner, managing or general agent, or the
person
having charge of the office or place of employment at which the
defendant
is employed, to make the defendant available for the purpose of
permit-
ting the summons or other process to be served on the defendant at
the
defendant's place of employment.
(c) As used in this section, ``serving''
means making service by any of
the methods described in section 21, and amendments thereto, unless
a
specific method of making service is prescribed in this section.
Except
for service by publication, service of process shall be made as
follows:
(1) Service upon an individual other than
a minor or disabled person
shall be made by serving the individual or by serving an agent
authorized
by appointment or by law to receive service of process, but if the
agent
is one designated by statute to receive service, such further
notice as the
statute requires shall be given. Service by certified mail or
first-class mail
shall be addressed to an individual at the individual's dwelling
house or
usual place of abode and to an authorized agent at the agent's
usual or
designated address.
(2) Service upon a minor, disabled person
as defined by K.S.A. 59-
3002, and amendments thereto, foreign or domestic corporations,
part-
nerships, insurance companies or associations shall be made in
accord-
ance with the applicable provisions of K.S.A. 60-304, and
amendments
thereto.
(3) Service upon a governmental entity
shall be made in accordance
with the applicable provisions of K.S.A. 60-304, and amendments
thereto.
New Sec. 23. Proof of service shall
be made as follows:
(a) Personal and residence service. (1)
Every officer to whom sum-
mons or other process shall be delivered for service within or
without the
state, shall make return thereof in writing stating the time, place
and
manner of service of such writ, and shall sign such officer's name
to such
return.
(2) If such process is directed to and
delivered to a person other than
by an officer for service, such person shall make affidavit as to
the time,
place and manner of such person's service thereof.
(b) Service by return receipt delivery.
Service by return receipt de-
livery shall be proven in the manner provided by subsection (e) of
K.S.A.
60-308 or subsection (c) of section 21, and amendments thereto.
(c) Publication service. Service by
publication shall be proven by an
affidavit showing the dates upon, and the newspaper in which the
notice
of publication was published. A copy of the notice shall be
attached to
the affidavit which shall be filed in the cause. When mailing of
copies of
the publication notice is required in accordance with subsection
(e) of
K.S.A. 60-307, and amendments thereto, the proof of such mailing
shall
be by affidavit of the person who mailed such copies and such
affidavit
shall be filed with the clerk of the court in which the action has
been
filed. Any return receipt shall be made a part of the affidavit and
filed
therewith.
(d) Time for return. The officer or other
person receiving a summons
or other process in forcible detainer cases shall make return of
service
promptly and, in any event, no later than three days before the
date stated
in the summons for the defendant to either appear or plead to the
peti-
tion. In all other cases return of service shall be made promptly
and, in
any event, no later than five days before the date stated in the
summons
for the defendant to either appear or plead to the petition. If the
process
cannot be served as directed, it shall be returned to the court
forthwith
with a statement of the reason for the failure to serve the
same.
(e) Amendment of return. At any time in
the judge's discretion and
upon such terms as the judge deems just, the judge may allow any
process,
return or proof of service thereof to be amended, unless it clearly
appears
that material prejudice would result to the substantial rights of
the party
against whom the process issued.
(f) Garnishment service of process. (1)
First class mail. The return
shall show the nature of the process, the date on which the process
was
mailed and the name and address on the envelope containing the
process.
(2) Telefacsimile communication. The
return shall show the nature
of the process, the time and date on which the process was
transmitted
by telefacsimile, the telephone number of the transmitting machine
and
the telephone number of the receiving machine.
(3) Internet electronic mail. The return
shall show the nature of the
process, the time and date on which the process was transmitted by
in-
ternet electronic mail, the internet electronic mail address of the
trans-
mitting person and the internet electronic mail address of the
receiving
person.
New Sec. 24. (a) (1) Service of
process may be made upon any party
outside the state. If upon a person domiciled in this state or upon
a person
who has submitted to the jurisdiction of the courts of this state,
it shall
have the force and effect of service of process within this state;
otherwise
it shall have the force and effect of service by publication.
(2) The service of process shall be made
in the same manner as serv-
ice within this state, by any officer authorized to make service of
process
in this state or in the state where the defendant is served. No
order of a
court is required. An affidavit, or any other competent proofs, of
the
server shall be filed stating the time, manner and place of
service. The
court may consider the affidavit, or any other competent proofs, in
de-
termining whether service has been properly made.
(3) The time stated in the summons
requiring the defendant to ap-
pear in response to the petition shall be determined by the court.
Such
time shall be not less than 11 nor more than 50 days after the date
the
summons is issued, except as provided in subsection (a)(3) of
K.S.A. 60-
308, and amendments thereto.
(b) The provisions of subsection (b) of
K.S.A. 60-308, and amend-
ments thereto, shall be used to determine whether a person has
submitted
to the jurisdiction of this state.
(c) Service of process upon any person
who is subject to the jurisdic-
tion of the courts of this state, as provided in subsection (b),
may be made
by serving the process upon the defendant outside this state, as
provided
in subsection (a)(2), with the same force and effect as though
process had
been served within this state, but only causes of action arising
from acts
enumerated in subsection (b) may be asserted against a defendant in
an
action in which jurisdiction over the defendant is based upon this
sub-
section.
(d) Nothing contained in this section
limits or affects the right to
serve any process in any other manner provided by law.
New Sec. 25. (a) When an answer has
been filed in an action or if
the defendant appears and disputes the claims in the petition
commenced
pursuant to the provisions of the code of civil procedure for
limited ac-
tions, any party may submit to any other party a written request
for that
party to admit:
(1) The genuineness of any relevant
document described in and at-
tached to the request; or
(2) the truth of any relevant matter of
fact set forth in the request.
The request shall be in a form which will permit the party to whom
it is
submitted to answer the questions on the request form under oath.
A
request for admissions may not contain more than 10 requests
unless
permission of the court is obtained to increase the number.
(b) Each of the matters requested shall
be deemed to be admitted
for purposes of the pending lawsuit, unless within 15 days after
the re-
quest is served, the party to whom the request is directed submits
to the
party propounding the request either:
(1) A sworn statement denying
specifically the matters requested; or
(2) written objections on the ground that
some or all of the requested
admissions are privileged or irrelevant or that the request is
otherwise
improper in whole or in part.
(c) If the answering party cannot
truthfully admit or deny a request,
the party shall set forth in detail the reasons why. If the
answering party
denies a request, the denial shall be in good faith and shall
fairly address
the substance of the request. If in good faith the answering party
can
deny only a part of the request or qualify a request, the party
shall specify
which part is admitted and qualify or deny the remaining part. If
the
answering party objects to a request, the party shall notify the
court and
the party propounding the request and schedule a hearing on the
objec-
tion to be held within 10 days after making the objection.
New Sec. 26. If a party to whom a
request for admission has been
submitted denies under oath any matter requested, and the party
sub-
mitting the request later proves the genuineness of any document or
the
truth of any matter of fact denied by the answering party, the
party sub-
mitting the request may ask the court for an order requiring the
answering
party to pay the reasonable expenses incurred in making such proof,
in-
cluding reasonable attorney fees. The court shall enter the order
unless
the court finds that there were good reasons for the denial or that
the
admissions sought were of no substantial importance.
New Sec. 27. (a) Any party may
submit to any other party up to 10
interrogatories. The party receiving the interrogatories shall
submit an-
swers or objections, if any, to the party submitting the same
within 15
days after the interrogatories are submitted to the receiving
party. On
motion, the court may allow a longer time to answer or may permit
a
greater number of interrogatories to be submitted.
(b) The provisions of K.S.A. 60-233, and
amendments thereto, shall
be applicable to interrogatories pursuant to this section, except
that the
provisions of this section relating to the time when
interrogatories are to
be answered shall be applicable. The general discovery provisions
of sub-
sections (b), (c) and (e) of K.S.A. 60-226, and amendments thereto,
and
the sanction provisions of K.S.A. 60-237, and amendments thereto,
as
such sections relate to interrogatories, shall be applicable to
interroga-
tories pursuant to this section.
New Sec. 28. Subpoenas may be
issued by the clerk of the district
court under the seal of such court or by the judge to compel the
attend-
ance of witnesses or for the production of documentary evidence in
the
manner provided in K.S.A. 60-245, and K.S.A. 60-245a, and
amendments
thereto. Subpoenas shall be served in accordance with sections 19
through
24, and amendments thereto, and shall be accompanied by the fees
for
one day's attendance and the mileage allowed by law.
New Sec. 29. (a) Any party to an
action pursuant to the code of civil
procedure for limited actions may take the testimony of any person,
in-
cluding a party, either within or without the state, by deposition
upon
oral examination or written questions but only for use as evidence
in the
action. Unless the court orders otherwise, the parties may by
written
stipulation provide that depositions may be taken before any
person, at
any time or place, upon any notice, and in any manner and when so
taken
may be used like other depositions. The taking of such depositions
shall
be governed by the provisions of K.S.A. 60-228, subsections (b)
through
(h) of K.S.A. 60-230, K.S.A. 60-231 and subsection (d) of K.S.A.
60-232,
and amendments thereto, except that any party desiring to take a
depo-
sition shall first file with the court, and serve on all other
parties to the
action, a motion that the taking of such deposition be allowed due
to the
existence of at least one of the conditions prescribed in
subsection (b) for
the use of depositions as evidence. Within five days after any such
motion
has been made, any other party to the action may file an objection
to such
motion, and in such event, the court shall hold a hearing within
five days
thereof to determine the issue. No deposition shall be taken unless
and
until the court shall have granted the motion requesting permission
there-
for.
(b) At the trial, or upon the hearing of
a motion or an interlocutory
proceeding, any part or all of a deposition of a witness, whether
or not a
party, so far as it is admissible under the rules of evidence, may
be used
for any purpose against any party who was present or represented at
the
taking of the deposition, or who had due notice thereof, if the
court finds
that:
(1) The witness is dead;
(2) the witness is outside of the county
of the place of trial or hearing,
unless it appears that the absence of the witness was procured by
the
party offering the deposition;
(3) the witness is unable to attend or
testify because of age, sickness,
infirmity or imprisonment;
(4) the party offering the deposition has
been unable to procure the
attendance of the witness by subpoena; or
(5) upon application and notice, that
such exceptional circumstances
exist as to make it desirable, in the interest of justice and with
due regard
to the importance of presenting the testimony of witnesses orally
in open
court, to allow the deposition to be used.
(c) In addition to the uses of
depositions enumerated in subsection
(b), the court on motion may permit the use of depositions as
provided
in subsections (b)(1), (2) and (4) of K.S.A. 60-232, and
amendments
thereto, in the interest of justice and on such terms and
conditions as will
fairly protect the parties.
New Sec. 30. Production of
documents and things for inspection
shall be allowed in accordance with K.S.A. 60-234, and
amendments
thereto.
New Sec. 31. (a) If the defendant
appears on the date specified in
the summons and disputes the petition, or on or before such date
files
an answer, the court may set the case for a pretrial hearing. Such
hearing
shall be held at least 10 days after the date of the defendant's
appearance.
All parties shall be notified of the date, time and place for the
pretrial
hearing.
(b) After a case has been set for
pretrial, each of the parties shall
submit to the other party before the date scheduled for the
pretrial hear-
ing, copies of all documents which support the petition or answer
and an
identification of all witnesses who will testify at trial to
support the same.
(c) If the defendant fails to appear at
the pretrial hearing, the court
may enter default judgment against the defendant for the relief
de-
manded in the petition without further notice. If the plaintiff
fails to
appear at the pretrial hearing, the court may dismiss the lawsuit
upon
such terms and conditions as the court deems proper.
(d) If both parties appear at the
pretrial hearing, the court shall con-
duct a conference with the parties to clarify the issues for trial
and explore
the possibilities of settlement. If the defendant does not have a
legal
defense to the petition, the court may enter judgment against the
de-
fendant for the relief demanded in the petition or for such other
relief
that the court believes is fair and just. If the plaintiff has not
stated a
claim upon which relief can be granted, the court may dismiss the
peti-
tion.
New Sec. 32. (a) If a case is not
settled or otherwise disposed of at
the pretrial hearing, the case shall be set for trial by the
court.
(b) All lawsuits filed under this act
shall be tried by the court, unless
a trial by jury is demanded by one of the parties. Demand for jury
trial
shall be made on or before the date of the pretrial conference.
(c) A lawsuit tried by jury pursuant to
the code of civil procedure for
limited actions shall be tried to a jury composed of six persons
having the
same qualifications of jurors as other jurors in district court,
unless the
parties agree on a lesser number. The court shall summon not less
than
12 prospective jurors from the source and in the manner provided
for
the summoning of petit jurors in the district court. When there is
more
than one plaintiff or more than one defendant in such action, the
court
shall summon three additional prospective jurors for each such
additional
plaintiff or defendant. Each juror shall be paid as specified in
K.S.A. 43-
171, and amendments thereto, for each day of attendance and shall
re-
ceive mileage at the rate prescribed in K.S.A. 75-3203, and
amendments
thereto. Such jury fees shall be paid by the county. The provisions
of
K.S.A. 60-247, subsections (b) through (h) of K.S.A. 60-248, K.S.A.
60-
250 and 60-251, and amendments thereto, shall be applicable to
actions
pursuant to the code of civil procedure for limited actions insofar
as they
are not inconsistent with the provisions of this act.
(d) In all trials pursuant to the code of
civil procedure for limited
actions, the testimony of witnesses shall be taken orally in open
court,
unless otherwise provided by this act. All matters relating to
witnesses
and the admission of evidence shall be governed by article 4 of
chapter
60 of the Kansas Statutes Annotated, and amendments thereto.
New Sec. 33. (a) The court may
enter a default judgment in the
following situations:
(1) If a defendant fails to either appear
or file a written answer on or
before the time specified in the summons, judgment may be
entered
against the defendant upon proof of service and at such time as the
plain-
tiff requests same, without further notice to the defendant.
(2) If a defendant fails to appear at the
time set for a pretrial or trial
hereunder, judgment may be entered against the defendant at the
request
of the plaintiff without further notice to the defendant.
(3) If the defendant has filed a
counterclaim against the plaintiff and
the plaintiff fails to appear at the time set for a pretrial or
trial hereunder,
judgment may be entered against the plaintiff at the request of the
de-
fendant without further notice to the plaintiff.
(b) A default judgment shall not be
different in kind from or exceed
the amount of the relief sought in the demand for judgment.
(c) If a defendant seeks to set aside a
default judgment for failure to
appear at the time specified in the summons, the defendant shall
file a
motion not more than 10 days from the date of such judgment in a
lawsuit
where the defendant was personally served with summons within
the
state, or not more than 45 days where service of summons was by
other
than personal service within the state. If any party seeks to set
aside any
other default judgment, that party shall file a motion not more
than 10
days from the date of such judgment. Any motion to set aside a
default
judgment, except for the time limits set forth above, shall be in
accord-
ance with the applicable provisions of subsection (b) of K.S.A.
60-260,
and amendments thereto.
(d) In cases where no service is had, for
good cause shown, the court
may set aside a default judgment pursuant to the applicable
provisions of
subsection (b) of K.S.A. 60-260, and amendments thereto.
New Sec. 34. (a) A judgment may be
entered by master or other
journal entry or judgment form approved by a judge. The judgment
shall
be effective from the date the journal entry or judgment form is
filed
with the clerk of the court. The form of the journal entry or
judgment
form shall be set forth in the rules of the supreme court of this
state.
(b) One or more cases may be shown on a
journal entry or judgment
form as set forth in the rules of the supreme court of this
state.
(c) When more than one claim for relief
is presented in a lawsuit, the
court may direct the entry of a final judgment upon one or more but
less
than all of the claims upon such terms and conditions as set forth
in the
judgment of the court.
(d) Except as to a party against whom a
judgment is entered by de-
fault, every final judgment shall grant the relief to which the
party in
whose favor it is rendered is entitled, regardless of whether the
party has
demanded such relief in such party's pleadings. Upon entry of such
judg-
ment, the party in whose favor judgment is entered shall be deemed
to
have waived such party's right to recover any amount due in excess
of
such judgment, and such party may not recover in a subsequent
lawsuit
any amount in excess of such judgment.
(e) Whenever a party has commenced
postjudgment proceedings for
the enforcement of a judgment, and such judgment is subsequently
set
aside, reversed on appeal or otherwise nullified, such party shall
not be
liable for damages as a result of such postjudgment proceedings,
unless
it can be proven that the judgment upon which such proceedings
were
based was fraudulently obtained.
New Sec. 35. The provisions of
K.S.A. 16-201, 16-204 and 16-205,
and amendments thereto, shall apply to judgments entered under
the
code of civil procedure for limited actions.
New Sec. 36. The provisions of
K.S.A. 60-252, 60-259 and 60-260,
and amendments thereto, shall apply to judgments entered under
the
code of civil procedure for limited actions where such provisions
are not
inconsistent with other provisions of the code.
New Sec. 37. Actions for the
recovery of a fine, forfeiture or penalty,
other than against public utilities or common carriers, must be
brought
in the county in which the cause arose, except if the act was
committed
on a road or river which forms the boundary of two or more counties
the
action may be brought in any one of the bordering counties opposite
the
place where the act was committed.
New Sec. 38. An action against a
resident of this state, other than an
action for which venue is otherwise specifically prescribed by law,
may
be brought in the county in which:
(a) The defendant resides;
(b) the plaintiff resides if the
defendant is served therein;
(c) the cause of action arose;
(d) the defendant has a place of business
or of employment if the
defendant is served therein;
(e) the estate of a deceased person is
being probated if such deceased
person was jointly liable with the defendant and a demand to
enforce
such liability has been duly exhibited in the probate proceedings
of such
decedent's estate; or
(f) there is located tangible personal
property which is the subject of
an action for the possession thereof if immediate possession is
sought in
accordance with section 73, and amendments thereto, at the time of
the
filing of the action.
New Sec. 39. An action against a
domestic corporation, or against a
foreign corporation which is qualified to do business in this
state, other
than an action for which venue is otherwise specifically prescribed
by law,
may be brought in the county in which:
(a) Its registered office is located;
(b) the cause of action arose;
(c) the defendant is transacting business
at the time of the filing of
the petition; or
(d) there is located tangible personal
property which is the subject of
an action for the possession thereof if immediate possession is
sought in
accordance with section 73, and amendments thereto, at the time of
the
filing of the action.
New Sec. 40. An action against a
nonresident of this state, or against
a corporation which is not qualified to do business in this state,
other than
an action for which venue is otherwise specifically prescribed by
law, may
be brought in the county in which:
(a) The plaintiff resides, or if the
plaintiff is a corporation, in the
county of its registered office or in which it maintains a place of
business;
(b) the defendant is served;
(c) the cause of action arose;
(d) the defendant is transacting business
at the time of the filing of
the petition;
(e) there is property of the defendant,
or debts owing to the defend-
ant; or
(f) there is located tangible personal
property which is the subject of
an action for the possession thereof if immediate possession is
sought in
accordance with section 73, and amendments thereto, at the time of
the
filing of the action.
New Sec. 41. Any action brought
against a public utility, common
carrier or transportation system for any liability or penalty or
forfeiture,
may be brought in any county into or through which such public
utility,
common carrier or transportation system operates regularly.
New Sec. 42. If there are several
plaintiffs properly joined and venue
is determined by the residence of one of them, it shall be
necessary that
such plaintiff's claim is a substantial part of the action. If
there are several
defendants properly joined, venue of the action may be determined
at
the election of the plaintiff as to any one of the defendants
against whom
a substantial claim exists. If, before trial of an action on the
merits is
commenced, a party with reference to whom venue was determined
ceases to be a party and venue would no longer be proper as to
the
remaining parties, on the application of any remaining party
promptly
made, the cause shall be transferred to a court of a county of
proper
jurisdiction and venue. If there is more than one such county, the
transfer
shall be to a county selected by the plaintiff.
New Sec. 43. In all cases pursuant
to the provisions of the code of
civil procedure for limited actions in which it shall be made to
appear
that a fair and impartial trial cannot be had in the county where
the suit
is pending, for reasons other than the disqualification of the
judge, the
court, upon application of either party, may change the place of
trial to
the district court of some county where the objection does not
exist.
New Sec. 44. Objection to the venue
of an action shall not be allowed
except on timely motion made and for grounds established before
trial of
the action is commenced on the merits.
New Sec. 45. If an action is
commenced in good faith and a subse-
quent timely objection to the venue is sustained, or if before
trial on the
merit commences, it is found that no cause of action exists in
favor of or
against a party upon whom venue was dependent, the action shall
be
transferred to a court of proper jurisdiction of any county of
proper venue.
If there is more than one such county, the transfer shall be to the
court
of a county selected by the plaintiff. In accordance with section
95, and
amendments thereto, the receiving district court shall require the
pay-
ment of an appropriate docket fee from the movant.
New Sec. 46. The provisions of
article 7 of chapter 60 of the Kansas
Statutes Annotated, and amendments thereto, relating to attachment
shall
govern attachment proceedings for actions pursuant to the code of
civil
procedure for limited actions, except the provisions of K.S.A.
60-711, and
amendments thereto, relating to the appointment of a receiver, and
the
provisions of article 7 of chapter 60 of the Kansas Statutes
Annotated
relating to the attachment of real property, shall not be
applicable in
lawsuits filed under the code of civil procedure for limited
actions.
New Sec. 47. Garnishment is a
procedure whereby the wages,
money or intangible property of a person can be seized or attached
pur-
suant to an order of garnishment issued by the court under the
conditions
set forth in the order.
New Sec. 48. An order of
garnishment before judgment may be ob-
tained only upon order of a judge of the district court pursuant to
the
procedure to obtain an order of attachment. No order of
garnishment
may be obtained before judgment where the property sought to be
at-
tached is wages earned by the person being garnished.
New Sec. 49. (a) As an aid to the
collection of a judgment, an order
of garnishment may be obtained at any time after 10 days following
judg-
ment. There is no requirement that an execution first be issued and
re-
turned unsatisfied.
(b) The party requesting a garnishment
shall file a request in an in-
dividual case or by a master request covering more than one case
asking
the court to issue an order of garnishment. The request shall
designate
whether the order of garnishment is to be issued to attach earnings
or to
attach other property of the judgment debtor. If such party seeks
to attach
earnings of the judgment debtor to enforce:
(1) An order of any court for the support
of any person;
(2) an order of any court of bankruptcy
under chapter 13 of the
United States bankruptcy code; or
(3) a debt due for any state or federal
tax, the direction of the party
shall so indicate.
No bond is required for an order of garnishment issued after
judgment.
New Sec. 50. This section shall
apply if the garnishment is to attach
intangible property other than earnings of the judgment debtor.
(a) The order of garnishment shall be
substantially in compliance with
the forms set forth in the rules of the supreme court of this
state.
(b) The order of garnishment and the
appropriate form for the gar-
nishee's answer shall be served on the garnishee in the same manner
as
process is to be served pursuant to sections 19 through 24, and
amend-
ments thereto, except that the garnishee may be served by any
means
provided under sections 19 through 24, and amendments thereto, at
the
garnishee's business or office location and this shall be
considered proper
service. Two copies of the answer form shall be served if the
garnishment
order is not served electronically. If the order is served prior to
a judg-
ment, the order shall also be served on the judgment debtor, if the
judg-
ment debtor can be found, except that the order shall not be served
on
the judgment debtor until after service has been made on the
garnishee.
Failure to serve the judgment debtor shall not relieve the
garnishee from
liability under the order.
(c) The order of garnishment shall have
the effect of attaching:
(1) All intangible property, funds,
credits or other indebtedness be-
longing to or owing the judgment debtor, other than earnings, which
is
in the possession or under the control of the garnishee, and all
such
credits and indebtedness due from the garnishee to the judgment
debtor
at the time of service of the order; and
(2) all such personal property coming
into the possession or control
of the garnishee and belonging to the judgment debtor, and all
such
credits and indebtedness becoming due to the judgment debtor
between
the time the order is served on the garnishee and the time the
garnishee
makes the answer of the garnishee. Where the garnishee is an
executor
or administrator of an estate in which the judgment debtor is or
may
become a legatee or distributee thereof, the order of garnishment
shall
have the effect of attaching and creating a first and prior lien
upon any
property or funds of such estate to which the judgment debtor is
entitled
upon distribution of the estate, and such garnishee shall be
prohibited
from paying over to the judgment debtor any of such property or
funds
until so ordered by the court from which the order of garnishment
was
issued.
(d) The garnishee, without prior
agreement, may withhold and retain
to defray the garnishee's costs, an administrative fee of $10 for
each order
of garnishment that attaches funds, credits or indebtedness. Such
admin-
istrative fee shall be in addition to the amount required to be
withheld
under the order for garnishment, except that if the amount required
to
be withheld under the order for garnishment is greater than the
amount
of the funds, credits or indebtedness held by the garnishee, the
fee shall
be deducted from the amount withheld.
New Sec. 51. (a) The written
direction of a party seeking an order
of garnishment attaching funds, credits or indebtedness held by a
bank,
savings and loan association, credit union or finance company shall
state
the amount to be withheld, which shall be 110% of the amount of
the
judgment creditor's claim, in the case of prejudgment garnishment,
or
110% of the amount of the current balance due under the judgment,
in
the case of postjudgment garnishment. The garnishee, without
prior
agreement, may withhold and retain to defray the garnishee's costs,
an
administrative fee of $10 for each order of garnishment that
attaches
funds, credits or indebtedness. Such administrative fee shall be in
addi-
tion to the amount required to be withheld under the order for
garnish-
ment, except that if the amount required to be withheld under the
order
for garnishment is greater than the amount of the funds, credits or
in-
debtedness held by a bank, savings and loan association, credit
union or
finance company, the fee shall be deducted from the amount
withheld.
(b) All orders of garnishment issued in
this state for the purpose of
attaching funds, credits or indebtedness held by a bank, savings
and loan
association, credit union or finance company shall include the
judgment
debtor's address and tax identification number, if known, and shall
specify
the amount of funds, credits or indebtedness to be withheld by the
gar-
nishee, which shall be 110% of the amount of the judgment
creditor's
claim or 110% of the amount of the current balance due under the
judg-
ment, as stated in the written direction of the party seeking the
order.
(c) The forms provided by law for an
order of garnishment attaching
funds, credits or indebtedness held by a bank, savings and loan
associa-
tion, credit union or finance company shall include the following
state-
ment:
``If you hold any funds, credits or
indebtedness belonging to or owing
the judgment debtor, the amount to be withheld by you pursuant to
this
order of garnishment is not to exceed $
.''
(amount stated in
direction)
(d) (1) The forms provided by law
for the answer to an order of
garnishment attaching funds, credits or indebtedness held by a
bank, sav-
ings and loan association, credit union or finance company shall
include
the following statement:
``The amount of the funds, credits or
indebtedness belong
ing to or owing the judgment debtor which I shall hold shall not
exceed
$ __________________.''
(amount stated in order)
(2) The answer shall further include
information that such account is
owned in joint tenancy with one or more individuals who are not
subject
to the garnishment, if applicable.
(e) If an order of garnishment attaches
funds, credits or indebtedness
held by a bank, savings and loan association, credit union or
finance com-
pany and the garnishee holds funds or credits or is indebted to the
judg-
ment debtor in two or more accounts, the garnishee may withhold
pay-
ment of the amount attached from any one or more of such
accounts.
(f) If an order of garnishment attaches
funds, credits or indebtedness
held by a bank, savings and loan association, credit union or
finance com-
pany and the garnishee holds funds or credits or is indebted to the
judg-
ment debtor in an account which judgment debtor owns in joint
tenancy
with one or more individuals who are not subject to the
garnishment, the
garnishee shall withhold the entire amount sought by the
garnishment.
Neither the garnishor nor the garnishee shall be liable to the
joint owners
if the ownership of the funds is later proven not to be the
judgment
debtor's.
(g) No party shall seek an order of
garnishment attaching funds, cred-
its or indebtedness held by a bank, savings and loan association,
savings
bank, credit union or finance company except on good faith belief
of the
party seeking garnishment that the party to be served with the
garnish-
ment order has, or will have, assets of the judgment debtor. Except
as
provided further, not more than two garnishments shall be issued by
a
party seeking an order of garnishment applicable to the same claim
or
claims and against the same judgment debtor in any 30-day period.
A
judge may order an exception to this subsection in any case in
which the
party seeking the garnishment shall in person or by attorney: (1)
Certify
that the garnishment is not for the purpose of harassment of the
debtor,
and (2) state facts demonstrating to the satisfaction of the judge
that there
is reason to believe that the garnishee has property or credits of
the debtor
which are not exempt from execution.
New Sec. 52. This section shall
apply if the garnishment is to attach
earnings of the judgment debtor.
(a) The order of garnishment shall be
substantially in compliance with
the forms set forth in the rules of the supreme court of this
state.
(b) The order of garnishment and the
appropriate form for the gar-
nishee's answer shall be served on the garnishee in the same manner
as
process is to be served pursuant to sections 19 through 24, and
amend-
ments thereto, except that the garnishee may be served by any
means
provided under sections 19 through 24, and amendments thereto, at
the
garnishee's business or office location and this shall be
considered proper
service. Two copies of the answer form shall be served if the
garnishment
order is not served electronically. If the party having requested
the gar-
nishment is notified by the garnishee that the judgment debtor has
never
been employed by the garnishee or the judgment debtor's
employment
has been terminated, the party seeking the garnishment shall
forthwith
file a release with the clerk of the court of such garnishment.
(c) The order of garnishment shall have
the effect of attaching the
nonexempt portion of the judgment debtor's earnings for all pay
periods
which end while the order is in effect. The order shall remain in
effect
until either of the following occur, whichever is sooner: (1) The
judgment
is paid; or (2) the garnishment is released. The party for whom the
gar-
nishment is issued shall file a release with the clerk of the court
upon
satisfaction of the judgment and provide a copy thereof to the
defendant
and garnishee. Nonexempt earnings are earnings which are not
exempt
from wage garnishment pursuant to K.S.A. 60-2310, and
amendments
thereto. Computation of the nonexempt portion of the judgment
debtor's
wages for the pay period or periods covered by the order shall be
made
in accordance with the directions accompanying the garnishee's
answer
form, and a written explanation of the garnishee's computations
shall be
furnished to the judgment debtor with each paycheck from which
earn-
ings are withheld pursuant to the order of garnishment. The order
of
garnishment shall also constitute an order of the court directing
the gar-
nishee to pay to the judgment creditor all earnings which are to be
with-
held by the garnishee under the order of garnishment as more
particularly
provided in the answer of the garnishee.
(d) From income due the judgment debtor,
the garnishee may with-
hold and retain to defray the garnishee's costs, an administrative
fee of
$10 for each pay period for which income is withheld, not to exceed
$20
for each 30 day period for which income is withheld, whichever is
less.
Such administrative fee shall be in addition to the amount required
to be
withheld under the order for garnishment. If the addition of this
fee
causes the total amount withheld to exceed the restrictions imposed
by
subsection (b) of K.S.A. 60-2310, and amendments thereto, the fee
shall
be deducted from the amount withheld.
(e) For any continuing garnishment, the
party having requested the
garnishment shall maintain an accounting and record of the
judgment
reflecting thereon all garnishment proceeds received and applied,
all in-
terest accrued thereon, and any and all credits applied in
satisfaction
thereof, and the remaining unsatisfied balance of such judgment.
The
party requesting the garnishment shall produce a copy of such
accounting
and record upon request of the court.
New Sec. 53. (a) Immediately
following the time the order of gar-
nishment is served on the garnishee, the party seeking the
garnishment
shall send a notice to the judgment debtor in any reasonable
manner,
notifying the judgment debtor:
(1) That a garnishment order has been
issued against the judgment
debtor and the effect of such order;
(2) of the judgment debtor's right to
assert any claim of exemption
allowed under the law with respect to a garnishment against
property
other than earnings or of the judgment debtor's right to object to
the
calculation of exempt and nonexempt earnings with respect to a
garnish-
ment against the earnings of the debtor; and
(3) of the judgment debtor's right to a
hearing on such claim or ob-
jection. The notice shall be substantially in compliance with the
form set
forth in the rules of the supreme court of this state, and shall
contain a
description of the exemptions that are applicable to garnishments
and the
procedure by which the judgment debtor can assert any claim of
exemp-
tion. A copy of the notice form shall be served on the garnishee
with the
order of garnishment.
(b) If the judgment debtor requests a
hearing to assert any claim of
exemption, the request shall be filed no later than 10 days
following the
date the notice is served on the judgment debtor. If a hearing is
re-
quested, the hearing shall be held by the court no sooner than five
days
nor later than 10 days after the request is filed. At the time the
request
for hearing is filed, the judgment debtor shall obtain from the
clerk or
court the date and time for the hearing which shall be noted on
the
request form. Immediately after the request for hearing is filed,
the judg-
ment debtor shall hand-deliver to the party seeking the garnishment
or
such party's attorney, if the party is represented by an attorney,
or mail
to the party seeking the garnishment or such party's attorney, if
the party
is represented by an attorney, by first-class mail at the party
seeking the
garnishment or such party's attorney's last known address, a copy
of the
request for hearing.
(c) If a hearing is held, the judgment
debtor shall have the burden
of proof to show that some or all of the property subject to the
garnish-
ment is exempt, and the court shall enter an order determining the
ex-
emption and such other order or orders as is appropriate.
New Sec. 54. This section shall
apply if the garnishment is to attach
intangible property other than earnings of the judgment debtor.
(a) The answer of the garnishee shall be
substantially in compliance
with the forms set forth in the rules of the supreme court of this
state.
(b) Within 10 days after service upon a
garnishee of an order of gar-
nishment the garnishee shall complete the answer in accordance with
the
instructions accompanying the answer form stating the facts with
respect
to the demands of the order and file the completed answer with the
clerk
of the court. The clerk shall cause a copy of the answer to be
mailed
promptly to the judgment creditor and judgment debtor at the
addresses
listed on the answer form. The answer shall be supported by
unsworn
declaration in the manner set forth on the answer form.
New Sec. 55. This section shall
apply if the garnishment is to attach
earnings of the judgment debtor.
(a) The answer of the garnishee shall be
substantially in compliance
with the forms set forth in the rules of the supreme court of this
state.
(b) Within 15 days following the end of
each month, the garnishee
shall complete the answer in accordance with the instructions
accompa-
nying the answer form for all pay periods ending during the month
and
send the completed answer to each judgment creditor and
judgment
debtor at the addresses listed on the answer form. The garnishee
shall
designate on the answer in the space provided on the answer form
the
name and case number for each judgment creditor who has a
garnishment
order in effect for the same debtor at the end of each month and
the
amount that is due each judgment creditor under the garnishment
in
accordance with the instructions accompanying the answer form.
Only
one answer needs to be completed for each judgment debtor by the
gar-
nishee and the garnishee may duplicate the completed answer in
any
manner the garnishee desires for distribution to each judgment
creditor
and judgment debtor. The answer shall be supported by unsworn
dec-
laration in the manner set forth on the answer form.
(c) If there are other liens against the
judgment debtor's earnings
which by law have priority over garnishments, the garnishee shall
so in-
dicate on the answer. In such event, the garnishment shall remain
in
effect but no earnings of the debtor shall be withheld under the
garnish-
ment order unless and until all of the other liens having priority
are re-
leased or satisfied or the earnings being withheld under all of
such liens
are less than the amount which is exempt under K.S.A. 60-2310,
and
amendments thereto.
New Sec. 56. (a) No later than 10
days after the garnishee makes the
answer and the clerk or the garnishee sends it to the judgment
creditor
and judgment debtor, the judgment creditor or judgment debtor, or
both,
may file a reply disputing any statement in the answer of the
garnishee.
A copy of the reply shall be sent by the party filing same to the
other
party, to any other judgment creditors affected and to the
garnishee. The
party filing the reply shall notify the court and schedule a
hearing on the
reply to be held within 30 days after filing of the reply.
(b) At the hearing, the court shall
determine and rule on all issues
related to the reply. The burden of proof shall be upon the party
filing
the reply to disprove the statements of the answer, except that the
gar-
nishee shall have the burden of proving offsets or indebtedness
claimed
to be due from the judgment debtor to the garnishee, or liens
asserted
by the garnishee against personal property of the judgment debtor.
The
provisions of K.S.A. 60-719, and amendments thereto, relating to
offsets
claimed by the garnishee shall be applicable to lawsuits filed
pursuant to
the code of civil procedure for limited actions.
New Sec. 57. If the garnishment is
to attach property other than
earnings of the judgment debtor, after 10 days following receipt of
the
answer of the garnishee by the court, and no reply to the answer
has been
filed, the court shall direct the garnishee to pay to the court
such amount
that the garnishee is holding as indicated by the answer, or such
lesser
amount if the circumstances warrant. If the garnishee is holding
property
other than money, the provisions of section 46, and amendments
thereto,
relating to attachment shall be applicable. If through garnishment,
the
claim is overpaid to the court, the court shall promptly refund to
the
judgment debtor any such overpayment.
New Sec. 58. This section shall
apply if the garnishment is to attach
earnings of the judgment debtor. If no reply is made to the answer
of
garnishee within 10 days following the date the garnishee has
completed
the answer, the garnishee shall promptly thereafter pay the
earnings with-
held as indicated on the answer to all judgment creditors
designated on
the answer in the amount due each as indicated on the answer,
unless
the garnishee receives prior to such payment an order of the court
to the
contrary. If any judgment creditor receives more than they are
entitled
to, that judgment creditor shall promptly pay the excess amount
pro-rata
to the other judgment creditors designated on the answer, or if no
such
other judgment creditors are designated, the judgment creditor
shall
promptly pay the excess amount to the judgment debtor.
New Sec. 59. If the garnishee fails
to answer within the time and
manner specified in the order of garnishment, the judgment creditor
may
file a motion and shall send a copy of the motion to the garnishee
and
the judgment debtor in the manner allowed under section 13, and
amend-
ments thereto. At the hearing on the motion, the court may grant
judg-
ment against the garnishee for the amount of the judgment
creditor's
judgment or claim against the judgment debtor or for such other
amount
as the court deems reasonable and proper, and for the expenses
and
attorney fees of the judgment creditor. If the claim of the
plaintiff has
not been reduced to judgment, the liability of the garnishee shall
be
limited to the judgment ultimately rendered against the judgment
debtor.
New Sec. 60. If after the time the
garnishee is to make payment of
funds or property held under a garnishment, the garnishee fails or
refuses
to pay or deliver property to the judgment creditor, the judgment
creditor
may file a motion and shall send a copy of the motion to the
garnishee
and the judgment debtor in the manner allowed under section 13,
and
amendments thereto. At the hearing on the motion, the court may
find
the garnishee in contempt and punish the garnishee by a fine or
may
enter judgment against the garnishee for such amount as the court
deems
reasonable and proper, including the expenses and attorney fees of
the
judgment creditor.
New Sec. 61. The provisions of
K.S.A. 60-721, 60-722, 60-723 and
60-724, and amendment thereto, shall be applicable to lawsuits
filed pur-
suant to the code of civil procedure for limited actions.
New Sec. 62. The provisions of
K.S.A. 60-262, and amendments
thereto, shall apply to judgments entered under the code of civil
proce-
dure for limited actions, except as to judgments entered in
eviction law-
suits under sections 78 through 85, and amendments thereto. A
judgment
entered in an eviction lawsuit may be enforced as soon as it is
entered.
New Sec. 63. General and special
executions or orders of sale upon
judgments entered under the code of civil procedure for limited
actions
shall be taken in the manner provided in article 24 of chapter 60
of the
Kansas Statutes Annotated, and amendments thereto. The provisions
of
K.S.A. 60-2410, 60-2414 and 60-2416, and amendments thereto, shall
not
be applicable to post-judgment proceedings pursuant to the code of
civil
procedure for limited actions, nor shall execution and orders of
sale issued
pursuant to the code of civil procedure for limited actions be
levied upon
real property of the judgment debtor except as provided in K.S.A.
60-
2418, and amendments thereto.
New Sec. 64. The provisions of
article 23 of chapter 60 of the Kansas
Statutes Annotated, and amendments thereto, relating to
exemptions
from seizure and sale, shall apply to attachments, executions and
other
process issued from any court in this state pursuant to the code of
civil
procedure for limited actions.
New Sec. 65. (a) As an aid to the
collection of a judgment, the judg-
ment creditor is entitled to have an order for a hearing in aid of
execution
issued by the court at any time after 10 days after judgment. There
is no
requirement that an execution first be issued and returned
unsatisfied.
No application for such order needs to be filed except as specially
re-
quired in this section.
(b) An order for a hearing in aid of
execution may be issued at the
request of a judgment creditor in an individual case or by a master
request
covering more than one case, and shall require the judgment debtor
to
appear and furnish information under oath or penalty of perjury
when
required by the court concerning the debtor's property and income
be-
fore the court at a time and place specified in the order within
the county
where the court is situated. The form of the order shall be set
forth in
rules of the supreme court of this state. The court may cancel the
hearing
if the judgment debtor has furnished to the judgment creditor
satisfactory
information concerning the debtor's property and income prior to
the
date and time for the hearing. Witnesses may also be subpoenaed
to
testify at the hearing.
(c) If the judgment debtor resides in
another county in this state or
outside of this state, the court can order such judgment debtor to
appear if
the court finds that it will not cause undue hardship on the
judgment debtor
to appear.
(d) It shall be the duty of the judge to
assist in the enforcement of the
judgments of the court. To this end, at any hearing in aid of
execution, when
the existence of any nonexempt property of the judgment debtor is
dis-
closed, the court shall order the judgment debtor to deliver the
property to
the sheriff or a duly appointed process server. If the property is
other than
currency, the property shall be sold in the same manner as other
property
taken under execution is sold and the proceeds from the sale shall
be applied
to the judgment and costs.
New Sec. 66. If a judgment debtor
appears pursuant to an order for a
hearing in aid of execution, the court may order the debtor to
return to
court from time to time to furnish current information under the
procedure
set forth in section 65, and amendments thereto. To avoid
unnecessary
filings, the court shall adopt a policy limiting the frequency with
which the
judgment debtor may be ordered to return to court. Such policy
shall pro-
vide that a judgment debtor who has made regular payments as
agreed
between the parties, or who is found to be disabled and otherwise
unable
to pay, shall not be required to return to court more frequently
than yearly.
New Sec. 67. If a person fails to
appear in response to an order for
a hearing in aid of execution, or if a person who has been
subpoenaed to
testify at the hearing fails to appear or to testify concerning
anything about
which the person can lawfully be questioned, the court shall issue
a ci-
tation for contempt to that person providing that the person must
either:
(a) Contact the judgment creditor or
attorney within 10 days to fur-
nish information under oath or penalty of perjury concerning the
judg-
ment debtor's property and income; or
(b) appear in court at a date and time
specified to show cause why
the debtor should not be held in contempt and punished for
contempt.
The form of the citation for contempt shall be set forth in rules
of the
supreme court of this state. The citation for contempt does not
need to
be supported by affidavit or other verification.
New Sec. 68. If on hearing, the
court determines that a judgment
debtor is guilty of contempt, the court may punish the person by a
fine
in an amount to be set by the court or by imprisonment in the
county jail
for a period of not to exceed 30 days, or both. The court may also
order
the person guilty of contempt to pay the reasonable attorney fees
incurred
by the judgment creditor in the filing of the contempt citation and
the
hearing thereon.
New Sec. 69. (a) If a person fails
to comply with the either of the
requirements of section 67, and amendments thereto, or if it
appears to
the court that the person is hiding to avoid the process of the
court or is
about to leave the county for that purpose, the court may issue a
bench
warrant commanding the sheriff to whom it is directed to bring
such
person before the court to answer for contempt. The bench warrant
does
not need to be supported by affidavit or other verification. The
court may
make such orders concerning the release of the person pending the
hear-
ing as the court deems proper.
(b) When such person is brought before
the court, a hearing shall be
held to determine if the person should be punished for contempt. If
the
court determines that the person is guilty of contempt, the court
may
punish the person by a fine in an amount to be set by the court or
by
imprisonment in the county jail for a period of not to exceed 30
days, or
both. The court may also order the person guilty of contempt to pay
the
reasonable attorney fees incurred by the judgment creditor in the
filing
of the bench warrant and the hearing thereon.
New Sec. 70. If the judgment debtor
is employed in this state and
either the debtor is a nonresident of this state or the place of
residence
is unknown, the order for a hearing in aid of execution and
citation for
contempt may be served on the judgment debtor at the place of
employ-
ment. An employer shall not unreasonably impede or impair the
service
of process on an employee who is a judgment debtor.
New Sec. 71. The provisions of
K.S.A. 60-2403 and 60-2404, and
amendments thereto, shall apply to judgments entered under the
code
of civil procedure for limited actions.
New Sec. 72. Any person who claims
to have succeeded to the in-
terest of the holder of a judgment by appointment as personal
represen-
tative for a judgment holder, by assignment, by operation of law,
or oth-
erwise, shall file a notice setting forth the basis for their
claim, and
thereafter such successor in interest shall be entitled to all the
rights and
remedies available to such successor's predecessor and may proceed
to
enforce the same in such successor's own name as such successor. It
shall
not be necessary to file with the clerk the documents which form
the
basis for the claim. If the validity of any such transfer is
disputed by any
party affected thereby, the court shall on reasonable notice to all
inter-
ested parties whose whereabouts are known, determine the
respective
rights and liabilities of all the parties.
New Sec. 73. Upon the commencement
of an action, the plaintiff
may recover possession of specific personal property before or
after judg-
ment.
(a) Claim for possession of property. A
plaintiff may seek an order to
obtain possession of specific personal property as follows:
Petition. The
plaintiff shall file a petition stating:
(1) Plaintiff is the owner or the person
lawfully entitled to the pos-
session, the specific property and the factual basis for the
claim;
(2) a description of the property;
(3) the property is wrongfully detained
by the defendant, or is held
by an officer under legal process who has refused delivery on
demand;
and
(4) the estimated value of the
property.
(b) Prejudgment possession of property. A
plaintiff may seek an order
to obtain immediate possession of specific personal property,
before judg-
ment as follows: Petition. The plaintiff shall file a petition
signed under
penalty of perjury stating:
(1) Plaintiff is the owner or the person
lawfully entitled to the pos-
session, the specific property, and the factual basis for the
claim;
(2) a description of the property;
(3) the property is wrongfully detained
by the defendant, or is held
by an officer under legal process who has refused delivery on
demand;
and
(4) the estimated value of the
property.
(c) Hearing; notice, bond. After filing
the petition, the plaintiff may
apply to the court for an order for the delivery of the property
prior to
judgment on the merits of the case.
(1) The application to the court for an
order shall be by motion which,
unless made during a hearing or trial, shall be made in writing,
state with
particularity the grounds therefor and set forth the relief or
order sought.
(2) The petition and application shall be
served upon the defendant
pursuant to sections 19 through 24, and amendments thereto.
(3) After a hearing and presentation of
evidence on plaintiff's motion,
and if the judge is satisfied as to the probable validity of
plaintiff's claim
and that delivery of the property to the plaintiff is in the
interest of justice
and will properly protect the interests of all the parties, the
judge may
enter or cause to be entered an order for the delivery of the
property to
the plaintiff.
(4) Prior to the issuance of the order
for delivery of the property, the
plaintiff shall file a bond with the clerk of the court.
(d) Bond; contents, insufficiency.
(1) The bond shall be executed by the
plaintiff and one or more suf-
ficient sureties in a sum double the amount of the fair market
value of
the property, as determined by the judge, or such lesser amount as
shall
be approved by an order of the judge.
(2) The bond shall be to the effect that
the plaintiff shall duly pros-
ecute the action, and pay all costs and damages that may be
awarded
against the plaintiff, and that if the plaintiff is given
possession of the
property the plaintiff will return it to the defendant if it be so
adjudged.
If the bond shall be found to be sufficient, the judge shall
approve the
same and note approval thereon.
(3) The defendant may challenge the
sufficiency of the bond as pro-
vided in subsection (b) of K.S.A. 60-705, and amendments
thereto.
(4) The court shall release the bond, if
the plaintiff abandons the right
to take possession of the property, prior to taking possession of
the prop-
erty.
(e) Replevin; without hearing, notice.
Notwithstanding the foregoing
provisions of this section, the judge may enter or cause to be
entered the
order for delivery of property after an ex parte hearing and
without notice
to and the opportunity for a hearing by the defendant, if the judge
is
satisfied as to the probable validity of the following additional
allegations
to be contained in plaintiff's petition:
(1) Possession of the property by the
plaintiff is directly necessary to
secure an important governmental or general public interest;
and
(2) there is a special need for very
prompt action due to the imme-
diate danger that the defendant will destroy or conceal the
property.
(f) Property in custodia legis. If the
property is in the custody of an
officer under any legal process, it shall nevertheless be subject
to replevin
under this section, but if the same is in the custody of any
officer under
any process issued out of a judicial proceeding, the petition and
bond
shall be filed in the same proceeding out of which such process
issued.
(g) Order for delivery of property. The
order for the delivery of the
property to the plaintiff shall be delivered to the appropriate
officer or
person authorized to serve process of any county in the state in
which the
property is located. The order shall state the names of the
parties, the
description of the property and the value as set out in plaintiff's
petition,
or as found by the court at the hearing on plaintiff's application
pursuant
to subsection (c). The order shall command the appropriate officer
to
take immediate possession of the property and deliver it to the
plaintiff
and make return of the order on the day named therein.
(h) Execution of order, return. (1) In
the execution of the order the
officer may break open any building or enclosure in which the
property
is located, if the officer cannot otherwise obtain possession of
the property
or entrance to the building on demand.
(2) The appropriate officer shall execute
the order by taking posses-
sion of the property described therein, and serving a copy on the
person
charged with the order of delivery in the same manner as for
personal or
resident service if the person can be found in the county.
(3) The return day of the order of
delivery shall be 10 days after it is
issued, if the order is executed within the county where the court
is sit-
uated. In all other cases, the return day shall be 20 days after
the order
is issued.
(4) The plaintiff shall have the right to
attend execution of the order.
Upon inspection of the property the plaintiff may abandon their
right to
prejudgment possession and shall so advise the appropriate officer
and
the court.
(i) Perishable goods. When property shall
be actually seized which is
likely to perish or to materially depreciate in value or threatens
to decline
speedily in value before the probable termination of the suit, or
the keep-
ing of which would be attended with unreasonable loss or expense,
the
court may order the same to be sold on such terms and conditions as
the
judge may direct, by the person having charge of the property, and
a
return of the proceedings thereon shall be made by the person at a
time
to be fixed by the judge.
(j) Redelivery, bond. The defendant,
after service of a copy of the
delivery order, may apply to the court for redelivery of the
property. The
court shall order return of the property to the defendant when the
de-
fendant files a bond with the clerk of the court, in an amount
equal to
the plaintiff's bond, executed by the defendant with one or more
sufficient
sureties. The bond shall be to the effect that the defendant will
deliver
the property to the plaintiff if so adjudged, and will pay all
costs and
damages that may be adjudged against the defendant. If the bond
shall
be found to be sufficient, the judge shall approve the same and
note
approval thereon. If the defendant is a public officer, board or
govern-
ment agency, such officer, board or agency, in lieu of giving a
redelivery
bond, may retain possession of the property seized by filing with
the clerk
a response certifying that the public health, safety or welfare
would be
jeopardized or impaired if the plaintiff acquired possession of the
prop-
erty prior to final judgment, in which case hearing may be had on
the
issue of public interest at the instance of any party.
(k) Judgment in action. (1) In an action
to recover the possession of
personal property, judgment for the plaintiff may be for possession
or for
the recovery of possession, or the value thereof in case a delivery
cannot
be had, and for damages for the detention. If the property has
been
delivered to the plaintiff and the defendant claims a return
thereof, judg-
ment for the defendant may be for a return of the property, or the
value
thereof in case a return cannot be had, and damages for taking and
with-
holding the same.
(2) In addition to other orders, the
court may direct an appropriate
officer to put the party entitled to possession in possession of
the property.
New Sec. 74. A plaintiff may bring
an action to reduce an indebt-
edness to a money judgment and to foreclose the security interest
in
specific personal property given to secure such indebtedness. The
plain-
tiff, at any time before judgment is rendered, may obtain immediate
pos-
session of the specified property as follows:
(a) Petition. The plaintiff shall file a
petition signed under penalty of
perjury stating:
(1) The plaintiff is the secured creditor
of the defendant;
(2) the instrument of indebtedness or the
terms thereof;
(3) the amount of the indebtedness
owed;
(4) the security agreement or the terms
thereof;
(5) a description of the personal
property;
(6) that plaintiff is lawfully entitled
to the foreclosure of the specific
personal property;
(7) the estimated value of each item of
personal property; and
(8) the defendant is no longer entitled
to possess the property.
(b) Prejudgment possession; hearing,
notice, bond. After filing the
petition, the plaintiff may apply to the court for an order for the
delivery
of the property before judgment.
(1) The application to the court for an
order of delivery shall be by
motion which, unless made during a hearing or trial, shall be made
in
writing, state with particularity the grounds therefor and set
forth the
relief or order sought.
(2) The petition and application shall be
served upon the defendant
pursuant to sections 19 through 24, and amendments thereto.
(3) After a hearing and presentation of
evidence on the plaintiff's
motion, if the judge is satisfied as to the probable validity of
the plaintiff's
claim and that delivery of the property to the plaintiff is in the
interest
of justice and will properly protect the interests of all the
parties, the
judge may enter or cause to be entered an order for the delivery of
the
property to the plaintiff.
(4) Prior to the issuance of the order
for delivery of the property, the
plaintiff shall file a bond with the clerk of the court.
(c) Bond, contents, insufficiency. (1)
The bond shall be executed by
the plaintiff and one or more sufficient sureties in a sum double
the
amount of the fair market value of the property, as determined by
the
judge, or such lesser amount as shall be approved by an order of
the
judge.
(2) The bond shall be to the effect that
plaintiff shall duly prosecute
the action, and pay all costs and damages that may be awarded
against
the plaintiff, and that if the plaintiff is given possession of the
property
the plaintiff will return it to the defendant if it be so adjudged.
If the
bond shall be found to be sufficient, the judge shall approve the
same
and note approval thereon.
(3) The defendant may challenge the
sufficiency of the bond as pro-
vided in subsection (b) of K.S.A. 60-705, and amendments
thereto.
(4) The court shall release the bond, if
the plaintiff abandons the right
to take possession of the property, prior to taking possession of
the prop-
erty.
(d) Execution of order, return. (1) In
the execution of the order the
officer may break open any building or enclosure in which the
property
is located, if the officer cannot otherwise obtain possession of
the property
or entrance to the building on demand.
(2) The appropriate officer shall execute
the order by taking posses-
sion of the property described therein, and serving a copy on the
person
charged with the order of delivery in the same manner as for
personal or
resident service if the person can be found in the county.
(3) The return day of the order of
delivery shall be 10 days after it is
issued, if the order is executed within the county where the court
is sit-
uated. In all other cases, the return day shall be 20 days after
the order
is issued.
(4) The plaintiff shall have the right to
attend execution of the order.
Upon inspection of the property the plaintiff may abandon their
right to
prejudgment possession and shall so advise the appropriate officer
and
the court.
(e) Perishable goods. When property shall
be actually seized which
is likely to perish or to materially depreciate in value or
threatens to
decline speedily in value before the probable termination of the
suit, or
the keeping of which would be attended with unreasonable loss or
ex-
pense, the court may order the same to be sold on such terms and
con-
ditions as the judge may direct, by the person having charge of the
prop-
erty, and a return of the proceedings thereon shall be made by the
person
at a time to be fixed by the judge.
(f) Redelivery, bond. The defendant,
after service of a copy of the
delivery order, may apply to the court for redelivery of the
property. The
court shall order return of the property to the defendant when the
de-
fendant files a bond with the clerk of the court, in an amount
equal to
the plaintiff's bond, executed by the defendant with one or more
sufficient
sureties. The bond shall be to the effect that the defendant will
deliver
the property to the plaintiff if so adjudged, and will pay all
costs and
damages that may be adjudged against the defendant. If the bond
shall
be found to be sufficient, the judge shall approve the same and
note
approval thereon. If the defendant is a public officer, board or
govern-
ment agency, such officer, board or agency, in lieu of giving a
redelivery
bond, may retain possession of the property seized by filing with
the clerk
a response certifying that the public health, safety or welfare
would be
jeopardized or impaired if the plaintiff acquired possession of the
prop-
erty prior to final judgment, in which case a hearing may be had on
the
issue of public interest at the instance of any party.
(g) Possession in third party. When the
officer finds the property in
possession of a person other than a defendant and deems it
advisable to
leave such person in possession, the officer shall declare to the
person in
possession that such person shall hold such property in such
person's
possession, subject to the further order of the court, and shall
summon
such person as a garnishee by serving upon such person a copy of
the
order which directs the officer to take immediate possession of the
prop-
erty. The court may require of such person in possession an
undertaking
with good and sufficient sureties in such sum as the court deems
suffi-
cient. The undertaking shall be to the effect that such person will
deliver
the property to the officer at the time and place fixed for sale,
if such be
ordered by the court. The officer shall give such person written
notice of
the time and place fixed for the sale by delivery in person or by
restricted
mail.
(h) Property claimed by third person. If
the officer, before proceed-
ing, may require the possession of, or be requested by the
plaintiff to take
possession of, personal property claimed by any person other than a
de-
fendant, the court may require the plaintiff to give the court an
under-
taking with good and sufficient sureties to pay all costs and
damages that
the officer may sustain by reason of the execution of such
order.
(i) Judgment. Judgment for the plaintiff
shall be for a money judg-
ment and foreclosure of the security interest, and the plaintiff
may pro-
ceed to foreclose the security interest in accordance with the
terms of
the security agreement covering the property, as governed by the
provi-
sions of the uniform commercial code, unless the court otherwise
directs.
If the court directs the plaintiff to proceed to enforce such
plaintiff's
judgment other than pursuant to the security agreement, and if the
judg-
ment is not satisfied within 10 days thereafter, then the clerk
shall issue
an order of special execution directed to the appropriate officer
to sell
the property in accordance with section 75, and amendments thereto.
If
the property is not then in the possession of the officer, the
order shall
also direct the person having possession to deliver such property
to the
officer. If the property has been delivered to the officer, and the
defend-
ant claims a return thereof, judgment shall be for the defendant or
a
return of the property and damages for the taking and withholding
of
same.
New Sec. 75. (a) Any sale conducted
under the provisions of this
section shall be subject to the provisions of K.S.A. 60-2406, and
amend-
ments thereto, except that the disposition of proceeds after the
satisfac-
tion of senior security interests or liens shall be made in
accordance with
the provisions of section 77, and amendments thereto. The officer
who
shall be directed to sell the personal property, before the officer
proceeds
to sell the same, shall cause public notice to be given of the time
and
place of sale, at least 10 days before the day of sale. The notice
shall be
given by publication at least once each week for two consecutive
weeks
in any newspaper published in the county, and which is qualified to
carry
legal publications, or, in the discretion of the court, by posting
notices in
five public places in the county, one of which shall be on a
bulletin board
established for public notices in the county courthouse. Within
five days
of the date of first publication or posting of notice, plaintiff
shall send by
restricted mail a copy of such notice to the defendant and to those
persons
known by the plaintiff to have a security interest in the property.
Such
notice shall be sent to the last known address of the person to
whom sent
and shall be in compliance with paragraph (26) of K.S.A. 84-1-201,
and
amendments thereto. If the personal property cannot be sold at the
spe-
cial execution sale for want of bidders, the plaintiff may direct
the officer
to return the special execution showing that fact or, at the
plaintiff's op-
tion, may report the same to the judge and obtain an order
permitting a
second sale under the same special execution and an extension of
the
return day of the special execution if that be necessary.
(b) If the personal property to be sold
shall consist of more than one
item of property, the appropriate officer conducting such sale
shall sell
only so much of the personal property in the officer's custody as
is nec-
essary to satisfy the judgment, interest and costs, and shall
return the
balance of any property remaining unsold to the defendant by
notifying
the defendant of the time and place when same may be obtained.
(c) Neither the officer conducting the
sale nor any other member of
the officer's staff may bid at any such sale.
(d) The provisions of K.S.A. 60-2411, and
amendments thereto, re-
lating to advancement of printer's fees shall apply to this
section.
New Sec. 76. Upon sale of such
property, the appropriate officer
shall make a return of such sale to the clerk of the court,
together with
an itemization of the officer's expenses of sale. The court, upon
finding
the proceedings regular and in conformity with law, shall confirm
the
same, and order the officer to make to the purchaser a certificate
of sale.
The certificate of sale shall accurately describe the property
sold, name
the purchaser and recite the facts of the sale. If a certificate of
title is
obtainable for such property under the laws of this state, the
description
of the property shall include the year, make, style and
identification num-
ber of such property. A certificate of sale shall vest title to the
property
in the purchaser.
New Sec. 77. (a) Upon the sale of
personal property by the appro-
priate officer, the clerk of the court shall apply the proceeds of
sale in
the following priority:
(1) To the court costs of the action
including the officer's expenses
and cost of publication;
(2) in accordance with the provisions of
K.S.A. 60-2406, and amend-
ments thereto;
(3) in satisfaction of all judgments
rendered in the action against the
defendant or the property in accordance with the priority
determined by
the court;
(4) any surplus shall be paid to the
defendant, except that if any other
security interest holder, subsequent to the entering of the
judgment of
foreclosure, files with the clerk of the court a written
notification of de-
mand furnishing reasonable proof of the security interest holder's
inter-
est, the clerk shall withhold any payment to the defendant. Such
security
interest holder shall serve the defendant with notice of the demand
within
10 days after such filing and furnish proof of such notice to the
court.
(b) If the defendant does not, within 10
days, notify the clerk in writ-
ing that the defendant takes exception to the demand of such
security
interest holder, the clerk shall apply the surplus to the demand
and pay
any balance to the defendant.
(c) If the defendant, within 10 days,
notifies the clerk in writing that
the defendant takes exception to the demand, the clerk shall
withhold all
surplus in the clerk's possession for a period of 30 days. If the
security
interest holder has not commenced a separate action to recover the
se-
curity interest holder's claim and garnished the clerk within the
time, the
clerk shall pay the surplus to the defendant.
New Sec. 78. Sections 78 through
85, and amendments thereto, shall
govern lawsuits brought to evict a person from possession of real
property
or of an interest in real property.
New Sec. 79. A judgment in a
lawsuit brought under sections 78
through 85, and amendments thereto, shall not be a bar to any
subsequent
lawsuit brought by either party for claims not included in such
judgment.
New Sec. 80. Before a lawsuit to
evict a person pursuant to sections
78 through 85, and amendments thereto, is filed, the party desiring
to
file such lawsuit shall deliver to the other party a notice to
leave the
premises for which possession is sought. The notice shall be
delivered at
least three days before commencing the lawsuit, by leaving a
written copy
with the other party or by leaving a copy thereof with any person
over
the age of 12 years residing on the premises described in such
notice, or
if no such person is found upon the premises, by posting a copy of
such
notice in a conspicuous place thereon, or by mailing a copy of the
notice
to the other party at the address of the premises described in the
notice.
The three day notice period provided for in this section shall be
computed
as three consecutive 24-hour periods to commence at the time the
notice
is delivered, posted or mailed. If the notice is mailed, an
additional two
days from the date of mailing shall be allowed for the person to
leave the
premises before the lawsuit is filed. Intermediate Saturdays,
Sundays and
legal holidays shall be included in the computation of the notice
period.
The form of the notice shall be substantially in the form set forth
in the
rules of the supreme court of this state.
New Sec. 81. The petition shall
describe the premises for which pos-
session is sought and why the plaintiff is seeking possession. If
there is
rent due for possession of the premises, the petition may include a
request
for judgment for that amount or the plaintiff may bring a
subsequent
lawsuit for that amount. The form of the petition shall be set
forth in the
rules of the supreme court of this state.
New Sec. 82. The form of summons in
lawsuits under sections 78
through 85, and amendments thereto, shall be the same as for
other
lawsuits filed under the code of civil procedure for limited
actions. The
time stated in the summons requiring the defendant to appear in
response
to the petition shall be determined by the court. Such time shall
be not
less than three nor more than 14 days after the date the summons
is
issued.
New Sec. 83. A defendant shall
either appear in person or by counsel
at the time and date set forth in the summons or file on or before
such
date a written answer. The answer, when filed, shall contain the
infor-
mation as required under subsection (b) of section 10, and
amendments
thereto.
New Sec. 84. (a) If a trial is
necessary, the trial shall be conducted
within eight days after the appearance date stated in the
summons.
(b) No continuance shall be granted
unless the defendant requesting
a continuance shall file a bond with good and sufficient security
approved
by the court, conditioned for the payment of all damages and rent
that
may accrue if judgment is entered against the defendant.
New Sec. 85. (a) If judgment is
entered against the defendant for
possession of the subject premises, the court shall issue, at the
request of
the plaintiff, a writ of restitution which shall direct anyone who
is au-
thorized to serve process and who is named in the writ to place the
plain-
tiff in possession of the premises described in the writ. The form
of the
writ shall be set forth in the rules of the supreme court of this
state.
(b) The writ of restitution shall be
executed within 10 days after the
person named in the writ receives it, and that person shall file a
return
as with other writs under the code of civil procedure for limited
actions.
The person serving the writ may use such reasonable force as is
necessary
to execute the writ.
(c) If the person named in the writ
receives a notice from the court
that the proceedings have been stayed by appeal, that person shall
im-
mediately delay all further proceedings upon the execution. If the
prem-
ises have been restored to the plaintiff, the person named in the
writ shall
immediately place the defendant in the possession thereof.
New Sec. 86. Any party to a civil
action pursuant to the code of civil
procedure for limited actions may appeal from:
(a) A final judgment, except a judgment
rendered on confession;
(b) any order, ruling or decision which
determines the action at any
stage of the proceedings;
(c) any order, ruling or decision that
sustains or overrules a motion
to dissolve an attachment or to discharge a garnishment; or
(d) any order, ruling or decision that
sustains or overrules a motion
to vacate the levy under an execution on property claimed to be
exempt
under the laws of this state.
New Sec. 87. (a) All appeals from
orders, rulings, decisions or judg-
ments of district magistrate judges under the code of civil
procedure for
limited actions shall be taken in the manner provided in subsection
(a) of
K.S.A. 60-2103a, and amendments thereto. All appeals from orders,
rul-
ings, decisions or judgments of district judges under the code of
civil
procedure for limited actions shall be taken in the manner provided
in
subsections (a) and (b) of K.S.A. 60-2103, and amendments thereto.
Not-
withstanding the foregoing provisions of this subsection, if
judgment has
been rendered in an action for forcible detainer and the defendant
desires
to appeal from that portion of the judgment granting restitution of
the
premises, notice of appeal shall be filed within five days after
entry of
judgment. The notice of appeal shall specify the party or parties
taking
the appeal; the order, ruling, decision or judgment appealed from;
and
the court to which the appeal is taken.
(b) The provisions of K.S.A. 60-2001, and
amendments thereto, shall
apply to appeals pursuant to this section.
(c) An appeal from an action heard by a
district magistrate judge shall
be taken to a district judge of the county. An appeal from an
action heard
by a district judge shall be taken to the court of appeals.
New Sec. 88. Subject to the rules
of the supreme court of this state,
once an appeal is perfected, if the judge from whom such appeal is
taken
is a district magistrate judge, such judge shall notify the chief
judge of
the judicial district that the appeal has been perfected. The chief
judge
then shall assign the case to a district judge to hear the
appeal.
New Sec. 89. No execution shall
issue upon a judgment, nor shall
proceedings be taken for its enforcement, until the expiration of
10 days
after its entry. If an appellant does not file a supersedeas bond
as provided
in the code of civil procedure for limited actions, the taking of
an appeal
shall not operate to stay proceedings for the enforcement of a
final judg-
ment or to take execution thereon. Nothing in this section shall be
con-
strued as limiting any power of a judge hearing such appeal to stay
pro-
ceedings during the pendency of an appeal, to grant an injunction
during
the pendency of such appeal or to make any other appropriate order
to
preserve the status quo or the effectiveness of the judgment
subsequently
to be rendered.
New Sec. 90. (a) Whenever an
appellant entitled thereto desires a
stay on appeal from an action pursuant to the code of civil
procedure for
limited actions, such appellant may present to the judge from which
the
appeal is taken, for the judge's approval, a supersedeas bond which
shall
have such surety or sureties as the judge requires. The bond may be
given
at or after the time of filing the notice of appeal, and the stay
is effective
when the supersedeas bond is approved by the judge. Such bond shall
be
conditioned for the satisfaction of the judgment in full together
with costs,
interest and damages for delay, if for any reason the appeal is
dismissed,
or if the judgment is affirmed; and to satisfy in full any
modification of
the judgment and such costs, interests and damages as the appellate
court
may adjudge and award.
(b) When the judgment is for the recovery
of money not otherwise
secured, the amount of the bond shall be fixed at such sum as will
cover
the whole amount of the judgment remaining unsatisfied, costs on
the
appeal, interest and damages for delay, unless the court after
notice and
hearing and for good cause shown fixes a different amount or
orders
security other than the bond. When the judgment determines the
dis-
position of the property in controversy as in replevin, or when
such prop-
erty is in the custody of the sheriff or when the proceeds of such
property
or a bond for its value is in the custody or control of the court,
the amount
of the supersedeas bond shall be fixed after notice and hearing at
such
sum only as will secure the amount recovered for the use and
detention
of the property, the costs of the action, costs on appeal, interest
and
damages for delay. When an order is made discharging, vacating or
mod-
ifying a provisional remedy, a party aggrieved thereby shall be
entitled,
upon application to the judge, to have the operation of such order
sus-
pended for a period of not to exceed 10 days on condition that,
within
the period of 10 days, such party shall file notice of appeal and
obtain the
approval of such supersedeas bond as is required under this
section.
(c) In lieu of a supersedeas bond, the
court may condition a stay of
proceedings pending appeal upon the timely payment into court of
the
periodic rent otherwise due from the defendant to the plaintiff
under the
rental agreement pertaining to the real property in issue.
New Sec. 91. In appeals taken by
the defendant in actions for the
forcible detention of real property, the supersedeas bond filed on
appeal
shall be conditioned that the appellant will not commit or suffer
waste to
be committed on the premises in controversy, and if upon appeal
the
court judgment be rendered against the appellant, the appellant
will pay
the value of the use and occupation of the property, from the date
such
bond was filed until the delivery of the property pursuant to the
judgment,
and all damages and costs that may be awarded against the
appellant.
New Sec. 92. If a supersedeas bond
was not filed with the notice of
appeal, and if the action is not yet docketed on appeal, a bond may
be
filed with the court from which the appeal is taken. After the
action is so
docketed, application for leave to file a bond may be made only in
the
appellate court. When the surety for a supersedeas bond shall be
insuf-
ficient, or such bond is insufficient in form or amount, the
appellate court
may on motion order a change or renewal of such bond, and direct
that
it be filed in such court.
New Sec. 93. By entering into a
supersedeas bond given pursuant to
sections 90 and 91, and amendments thereto, the surety submits to
the
jurisdiction of the court wherein the judgment becomes final, and
irrev-
ocably appoints the clerk of such court as the surety's agent upon
whom
any papers affecting the surety's liability on the bond may be
served. The
surety's liability may be enforced on motion without the necessity
of an
independent action. The motion and such notice of the motion as
the
judge prescribes may be served on the clerk of the court who shall
forth-
with mail copies to the surety if the surety's address is
known.
New Sec. 94. If the appeal is
dismissed by the judge hearing such
appeal, the action shall be remanded to the judge from which such
appeal
was taken.
New Sec. 95. (a) Docket fee. No
case shall be filed or docketed pur-
suant to the code of civil procedure for limited actions without
the pay-
ment of a docket fee in the amount of $19.50, if the amount in
controversy
or claimed does not exceed $500; $39.50, if the amount in
controversy or
claimed exceeds $500 but does not exceed $5,000; or $64.50, if
the
amount in controversy or claimed exceeds $5,000. If judgment is
ren-
dered for the plaintiff, the court also may enter judgment for the
plaintiff
for the amount of the docket fee paid by the plaintiff.
(b) Poverty affidavit; additional court
costs. The provisions of subsec-
tions (b), (c) and (d) of K.S.A. 60-2001, and amendments thereto,
shall
be applicable to lawsuits brought under the code of civil procedure
for
limited actions.
New Sec. 96. The provisions of
K.S.A. 60-2002, 60-2003, 60-2006,
60-2610 and 60-2611, and amendments thereto, shall be applicable
to
lawsuits brought under the code of civil procedure for limited
actions.
New Sec. 97. The applicable
provisions of article 25 of chapter 60 of
the Kansas Statutes Annotated, and amendments thereto, relating to
lost
or destroyed court files and records, shall govern lost court files
and re-
cords in actions pursuant to the code of civil procedure for
limited actions,
except as otherwise provided in the rules of the supreme court of
this
state.
New Sec. 98. Whenever an oath is
required by the code of civil pro-
cedure for limited actions, the affirmation of a person
conscientiously
opposed to taking an oath shall have the same effect.
New Sec. 99. If a case arises in
which an action or proceeding for
the enforcement or protection of a substantive right, or the
redress or
prevention of a wrong, cannot be had under any specific provisions
of the
code of civil procedure for limited actions or other statutes, then
the court
shall proceed as nearly in conformity with the provisions of the
code of
civil procedure for limited actions as the circumstances permit to
do what-
ever law and justice require for the protection of the parties.
New Sec. 100. The procedures
prescribed by the code of civil pro-
cedure for limited actions shall apply to any actions or
proceedings com-
menced, or judgments entered, prior to the enactment of this
act.
New Sec. 101. The forms contained
in the rules to be adopted here-
under by the supreme court are sufficient under this act and are
intended
to indicate the simplicity and brevity of statement which this act
contem-
plates.
Sec. 102. K.S.A. 1999 Supp. 19-4737
is hereby amended to read as
follows: 19-4737. (a) An appeal may be taken from any judgment
under
the code for the enforcement of county codes and resolutions. All
appeals
shall be by notice of appeal specifying the party or parties taking
the
appeal and the order, ruling, decision or judgment complained of
and
shall be filed with the clerk of the district court within 10 days
after entry
of judgment. All appeals shall be tried and determined de
novo before a
district judge, other than the judge from which the appeal is
taken. The
provisions of K.S.A. 60-2001 and 61-1716section 32, and amendments
thereto, shall be applicable to actions appealed pursuant to this
subsec-
tion. The appealing party shall cause notice of the appeal to be
served
upon all other parties to the action in accordance with the
provisions of
K.S.A. 60-205 and amendments thereto. An appeal shall be
perfected
upon the filing of the notice of appeal. When the appeal is
perfected, the
clerk of the court or the judge from which the appeal is taken
shall refer
the case to the chief judge for assignment in accordance with this
section.
All proceedings for the enforcement of any judgment under the code
for
the enforcement of county codes and resolutions shall be stayed
during
the time within which an appeal may be taken and during the
pendency
of an appeal, without the necessity of the appellant filing a
supersedeas
bond.
(b) Any order, ruling, decision or
judgment rendered by a district
judge on an appeal taken pursuant to subsection (a) may be appealed
in
the manner provided in article 21 of chapter 60 of the Kansas
Statutes
Annotated.
Sec. 103. K.S.A. 1999 Supp. 20-302b
is hereby amended to read as
follows: 20-302b. (a) A district magistrate judge shall have the
jurisdiction
and power, in any case in which a violation of the laws of the
state is
charged, to conduct the trial of traffic infractions, cigarette or
tobacco
infractions or misdemeanor charges to conduct the preliminary
exami-
nation of felony charges and to hear felony arraignments subject to
as-
signment pursuant to K.S.A. 20-329 and amendments thereto. In
civil
cases, a district magistrate judge shall have concurrent
jurisdiction, pow-
ers and duties with a district judge, except that, unless otherwise
specif-
ically provided in subsection (b), a district magistrate judge
shall not have
jurisdiction or cognizance over the following actions:
(1) Any action, other than an action
seeking judgment for an unse-
cured debt not sounding in tort and arising out of a contract for
the
provision of goods, services or money, in which the amount in
contro-
versy, exclusive of interests and costs, exceeds $10,000, except
that in
actions of replevin, the affidavit in replevin or the verified
petition fixing
the value of the property shall govern the jurisdiction; nothing in
this
paragraph shall be construed as limiting the power of a district
magistrate
judge to hear any action pursuant to the Kansas probate code or to
issue
support orders as provided by paragraph (6) of this subsection;
(2) actions against any officers of the
state, or any subdivisions
thereof, for misconduct in office;
(3) actions for specific performance of
contracts for real estate;
(4) actions in which title to real estate
is sought to be recovered or
in which an interest in real estate, either legal or equitable, is
sought to
be established, except that nothing in this paragraph shall be
construed
as limiting the right to bring an action for forcible detainer as
provided
in the acts contained in article 23 of chapter 61 of the
Kansas Statutes Annotated, and any acts amendatory thereof or
supplementalsections 78 through 85, and amendments thereto; and nothing in this
paragraph shall
be construed as limiting the power of a district magistrate judge
to hear
any action pursuant to the Kansas probate code;
(5) actions to foreclose real estate
mortgages or to establish and fore-
close liens on real estate as provided in the acts contained in
article 11 of
chapter 60 of the Kansas Statutes Annotated, and any acts
amendatory thereof or supplementalamendments
thereto;
(6) actions for divorce, separate
maintenance or custody of minor
children, except that nothing in this paragraph shall be construed
as lim-
iting the power of a district magistrate judge to: (A) Hear any
action
pursuant to the Kansas code for care of children or the Kansas
juvenile
justice code; (B) establish, modify or enforce orders of support,
including,
but not limited to, orders of support pursuant to the Kansas
parentage
act, K.S.A. 23-451 et seq., 39-718a, 39-718b, 39-755 or
60-1610 or K.S.A.
23-4,105 through 23-4,118, 23-4,125 through 23-4,137, 38-1542,
38-1543
or 38-1563, and amendments thereto; or (C) enforce orders granting
a
parent visitation rights to the parent's child;
(7) habeas corpus;
(8) receiverships;
(9) change of name;
(10) declaratory judgments;
(11) mandamus and quo warranto;
(12) injunctions;
(13) class actions;
(14) rights of majority; and
(15) actions pursuant to K.S.A. 59-29a01
et seq. and amendments
thereto.
(b) Notwithstanding the provisions of
subsection (a), in the absence,
disability or disqualification of a district judge, a district
magistrate judge
may:
(1) Grant a restraining order, as
provided in K.S.A. 60-902 and
amendments thereto;
(2) appoint a receiver, as provided in
K.S.A. 60-1301 and amend-
ments thereto; and
(3) make any order authorized by K.S.A.
60-1607 and amendments
thereto.
(c) In accordance with the limitations
and procedures prescribed by
law, and subject to any rules of the supreme court relating
thereto, any
appeal permitted to be taken from an order or final decision of a
district
magistrate judge shall be tried and determined de novo by a
district judge,
except that in civil cases where a record was made of the action or
pro-
ceeding before the district magistrate judge, the appeal shall be
tried and
determined on the record by a district judge.
(d) Upon motion of a party, the chief
judge may reassign an action
from a district magistrate judge to a district judge.
Sec. 104. K.S.A. 1999 Supp. 20-362
is hereby amended to read as
follows: 20-362. The clerk of the district court shall remit at
least monthly
all revenues received from docket fees as follows:
(a) To the county treasurer, for deposit
in the county treasury and
credit to the county general fund:
(1) A sum equal to $10 for each docket
fee paid pursuant to K.S.A.
60-2001 and 60-3005, and amendments thereto, during the
preceding
calendar month;
(2) a sum equal to $10 for each $36.50 or
$61.50 docket fee paid
pursuant to K.S.A. 61-2501, 61-2704 or 61-2709section 95, or K.S.A. 61- 2704 or 61-2709, and amendments thereto; and
(3) a sum equal to $5 for each
$16.50$19.50 docket fee paid pursuant
to K.S.A. 61-2501 or 61-2704section 95 or
K.S.A. 61-2704, and amend-
ments thereto, during the preceding calendar month.
(b) To the board of trustees of the
county law library fund, for deposit
in the fund, a sum equal to the library fees paid during the
preceding
calendar month for cases filed in the county.
(c) To the county treasurer, for deposit
in the county treasury and
credit to the prosecuting attorneys' training fund, a sum equal to
$1 for
each docket fee paid pursuant to K.S.A. 28-172a, and amendments
thereto, during the preceding calendar month for cases filed in the
county
and for each fee paid pursuant to subsection (c) of K.S.A. 28-170,
and
amendments thereto, during the preceding calendar month for cases
filed
in the county.
(d) To the state treasurer, for deposit
in the state treasury and credit
to the indigents' defense services fund, a sum equal to $.50 for
each
docket fee paid pursuant to K.S.A. 28-172a and subsection (d) of
K.S.A.
28-170, and amendments thereto, during the preceding calendar
month.
(e) To the state treasurer, for deposit
in the state treasury and credit
to the law enforcement training center fund, during the period
com-
mencing July 1, 1998, and ending June 30, 2002, a sum equal to $9,
and
on and after July 1, 2002, a sum equal to $8 for each docket fee
paid
pursuant to K.S.A. 28-172a, and amendments thereto, during the
pre-
ceding calendar month.
(f) To the state treasurer, for deposit
in the state treasury and distri-
bution according to K.S.A. 20-367 and amendments thereto, a sum
equal
to the balance which remains from all docket fees paid during the
pre-
ceding calendar month after deduction of the amounts specified in
sub-
sections (a), (b), (c), (d) and (e).
Sec. 105. K.S.A. 58-227 is hereby
amended to read as follows: 58-
227. (a) Any person leasing or renting space for a manufactured
home or
mobile home site shall have a lien upon any manufactured home or
mo-
bile home situated thereon for unpaid lease or rental payments and
for
other unpaid charges due such lessor under the written terms and
con-
ditions of any lease or rental agreement with the lessee. Such lien
shall
be effective after the lessee has defaulted in payments as provided
in the
written rental or lease agreement with the lessor. Notice of such
lien shall
be given by the lessor by causing written notice of such lien to be
posted
conspicuously upon such manufactured home or mobile home.
The lien provided by this act shall have
priority over all other liens
except a previous validly perfected security interest in such
manufactured
home or mobile home.
(b) At any time after 30 days beyond the
date notice is given to the
lessee, the lessor may remove the manufactured home or mobile
home
from the leased or rented site and may retain such lien as is
provided in
this act. Upon such removal, reasonable charges for such removal
and
storage may be assessed against the manufactured home or mobile
home.
Notwithstanding the foregoing no manufactured home or mobile
home
may be removed pursuant to this subsection if such manufactured
home
or mobile home is occupied by the lessee; in such cases the lessor
may
obtain restitution of the premises pursuant to article 23
of chapter 61 of the Kansas Statutes Annotatedsections 78
through 85, and amendments thereto.
(c) Such lien may be enforced and
foreclosed as security agreements
are enforced under the provisions of the uniform commercial
code.
Sec. 106. K.S.A. 58-2542 is hereby
amended to read as follows: 58-
2542. The district court shall have jurisdiction over any landlord
or tenant
with respect to any conduct in this state governed by this act or
with
respect to any claim arising from a transaction subject to this
act, and
notwithstanding the provisions of subsection (b) of K.S.A.
61-1603section 2, and any amendments thereto, such actions
may be commenced pur-
suant to the code of civil procedure for limited actions. Unless
otherwise
specifically provided in this act, the code of civil procedure for
limited
actions shall govern any action commenced pursuant to this act.
Sec. 107. K.S.A. 1999 Supp. 58-2565
is hereby amended to read as
follows: 58-2565. (a) If the rental agreement requires the tenant
to give
notice to the landlord of an anticipated extended absence in excess
of
seven days required in K.S.A. 58-2558, and amendments thereto, and
the
tenant willfully fails to do so, the landlord may recover actual
damages
from the tenant.
(b) During any absence of the tenant in
excess of 30 days, the landlord
may enter the dwelling unit at times reasonably necessary. If,
after the
tenant is 10 days in default for nonpayment of rent and has removed
a
substantial portion of such tenant's belongings from the dwelling
unit,
the landlord may assume that the tenant has abandoned the dwelling
unit,
unless the tenant has notified the landlord to the contrary.
(c) If the tenant abandons the dwelling
unit, the landlord shall make
reasonable efforts to rent it at a fair rental. If the landlord
rents the
dwelling unit for a term beginning prior to the expiration of the
rental
agreement, it is deemed to be terminated as of the date the new
tenancy
begins. The rental agreement is deemed to be terminated by the
landlord
as of the date the landlord has notice of the abandonment, if the
landlord
fails to use reasonable efforts to rent the dwelling unit at a fair
rental or
if the landlord accepts the abandonment as a surrender. If the
tenancy is
from month-to-month, or week-to-week, the term of the rental
agree-
ment for this purpose shall be deemed to be a month or a week, as
the
case may be.
(d) If the tenant abandons or surrenders
possession of the dwelling
unit and leaves household goods, furnishings, fixtures or any other
per-
sonal property in or at the dwelling unit or if the tenant is
removed from
the dwelling unit as a result of a forcible detainer action,
pursuant to K.S.A. 61-2301,et seq.sections 78 through 85, and amendmentamend- ments thereto, and fails to remove any household goods,
furnishings, fix-
tures or any other personal property in or at the dwelling unit
after pos-
session of the dwelling unit is returned to the landlord, the
landlord may
take possession of the property, store it at tenant's expense and
sell or
otherwise dispose of the same upon the expiration of 30 days after
the
landlord takes possession of the property, if at least 15 days
prior to the
sale or other disposition of such property the landlord shall
publish once
in a newspaper of general circulation in the county in which such
dwelling
unit is located a notice of the landlord's intention to sell or
dispose of
such property. Within seven days after publication, a copy of the
pub-
lished notice shall be mailed by the landlord to the tenant at the
tenant's
last known address. Such notice shall state the name of the tenant,
a brief
description of the property and the approximate date on which the
land-
lord intends to sell or otherwise dispose of such property. If the
foregoing
requirements are met, the landlord may sell or otherwise dispose of
the
property without liability to the tenant or to any other person who
has or
claims to have an interest in such property, except as to any
secured
creditor who gives notice of creditor's interest in such property
to the
landlord prior to the sale or disposition thereof, if the landlord
has no
knowledge or notice that any person, other than the tenant, has or
claims
to have an interest in such property. During such 30 [30-day]
period after
the landlord takes possession of the property, and at any time
prior to
sale or other disposition thereof, the tenant may redeem the
property
upon payment to the landlord of the reasonable expenses incurred by
the
landlord of taking, holding and preparing the property for sale and
of any
amount due from the tenant to the landlord for rent or
otherwise.
(e) Any proceeds from the sale or other
disposition of the property
as provided in subsection (d) shall be applied by the landlord in
the fol-
lowing order:
(1) To the reasonable expenses of taking,
holding, preparing for sale
or disposition, giving notice and selling or disposing thereof;
(2) to the satisfaction of any amount due
from the tenant to the land-
lord for rent or otherwise; and,
(3) the balance, if any, may be retained
by the landlord, without lia-
bility to the tenant or to any other person, other than a secured
creditor
who gave notice of creditors interest as provided in subsection
(d), for
any profit made as a result of a sale or other disposition of such
property.
(f) Any person who purchases or otherwise
receives the property pur-
suant to a sale or other disposition of the property as provided
under
subsection (d) of this section, without knowledge that such sale or
dis-
position is in violation of the ownership rights or security
interest of a
third party in the property, takes title to the property free and
clear of
any right, title, claim or interest of the tenant or such third
party in the
property.
Sec. 108. K.S.A. 58-25,102 is
hereby amended to read as follows: 58-
25,102. (a) The district court shall have
jurisdiction over a landlord or
tenant with respect to conduct in this state governed by this act
or with
respect to any claim arising from a transaction subject to this
act, and
notwithstanding the provisions of subsection (b) of K.S.A.
61-1603section 2, and amendments thereto, such actions may be commenced
pursuant
to the code of civil procedure for limited actions. Unless
otherwise spe-
cifically provided in this act, the code of civil procedure for
limited actions
shall govern any action commenced pursuant to this act. If the
relief
sought is beyond the jurisdiction of a district magistrate judge as
provided
in K.S.A. 20-302b, and amendments thereto, the action shall be
heard by
a district judge.
Sec. 109. K.S.A. 60-201 is hereby
amended to read as follows: 60-
201. This article governs the procedure in the district courts of
Kansas,
other than actions commenced pursuant to chapter 61 of the
Kansas Stat- utes Annotated, and any amendments thereto,the
code of civil procedure for limited actions and governs the procedure in all
original proceedings
in the supreme court in all suits of a civil nature whether
cognizable as
cases at law or in equity, except as provided in K.S.A. 60-265,
and amend- ments thereto.
Sec. 110. K.S.A. 60-213 is hereby
amended to read as follows: 60-
213. (a) Compulsory counterclaims. A pleading shall state as
a counter-
claim any claim which at the time of serving the pleading the
pleader has
against any opposing party, if it arises out of the transaction or
occurrence
that is the subject matter of the opposing party's claim and does
not
require for its adjudication the presence of third parties of whom
the
court cannot acquire jurisdiction; but the pleader need not state
the claim
if (1) at the time the action was commenced the claim was the
subject of
another pending action, or (2) the opposing party brought suit upon
such
party's claim by attachment or other process by which the court did
not
acquire jurisdiction to render a personal judgment on that claim,
and the
pleader is not stating any other counterclaim under this
section.
(b) Permissive counterclaims. A
pleading may state as a counterclaim
any claim against an opposing party not arising out of the
transaction or
occurrence that is the subject matter of the opposing party's
claim.
(c) Counterclaim exceeding opposing
claim. A counterclaim may or
may not diminish or defeat the recovery sought by the opposing
party. It
may claim relief exceeding in amount or different in kind from that
sought
in the pleading of the opposing party.
(d) Effect of death or
limitations. When cross demands have existed
between persons under such circumstances that, if one had brought
an
action against the other, a counterclaim or cross-claim could have
been
set up, neither can be deprived of the benefit thereof by the
assignment
or death of the other or by reason of the statute of limitations if
arising
out of the contract or transaction set forth in the petition as the
foundation
of plaintiff's claim or connected with the subject of the action;
but the
two demands must be deemed compensated so far as they equal
each
other.
(e) Counterclaim maturing or acquired
after pleading. A claim which
either matured or was acquired by the pleader after serving the
pleading
may, with the permission of the court, be presented as a
counterclaim by
supplemental pleading.
(f) Omitted counterclaim. When a
pleader fails to set up a counter-
claim through oversight, inadvertence, or excusable neglect, or
when jus-
tice requires, the pleader may by leave of court set up the
counterclaim
by amendment.
(g) Compulsory cross-claim against
co-party. In an action involving
a claim governed by K.S.A. 60-258a and amendments thereto, a
party
shall state as a cross-claim any claim that party has against any
co-party
arising out of the transaction or occurrence that is the subject
matter of
the claim governed by K.S.A. 60-258a and amendments thereto.
(h) Permissive cross-claim against
co-party. A pleading may state as
a cross-claim any claim by one party against a co-party arising out
of the
transaction or occurrence that is the subject matter either of the
original
action or of a counterclaim therein or relating to any property
that is the
subject matter of the original action. Such cross-claim may include
a claim
that the party against whom it is asserted is or may be liable to
the cross-
claimant for all or part of a claim asserted in the action against
the cross-
claimant.
(i) Joinder of additional parties.
Persons other than those made par-
ties to the original action may be made parties to a counterclaim
or cross-
claim in accordance with the provisions of K.S.A. 60-219 and
60-220, and
amendments thereto.
(j) Separate trials; separate
judgments. If the court orders separate
trials as provided in K.S.A. 60-242 and amendments thereto judgment
on
a counterclaim or cross-claim may be rendered in accordance with
the
terms of K.S.A. 60-254 and amendments thereto when the judge
has
jurisdiction so to do, even if the claims of the opposing party
have been
dismissed or otherwise disposed of.
(k) Appealed and removed actions.
When an action is filed in the
district court pursuant to chapter 61the code
of civil procedure for limited actions and such action is transferred as provided in
K.S.A. 61-1717sec- tion 16, and amendments thereto or such action is heard by a
district
magistrate judge and is appealed and a trial de novo will be
held before
a district judge, any counterclaim made compulsory by subsection
(a) shall
be stated as an amendment to the pleading within 20 days after such
filing
or such other time as the court shall allow. Other counterclaims
and cross-
claims shall be permitted as in an original action in the district
court
pursuant to this chapter.
Sec. 111. K.S.A. 60-265 is hereby
amended to read as follows: 60-
265. The provisions of this article shall apply only to actions and
pro-
ceedings in the district courts, other than actions commenced
pursuant
to chapter 61 of the Kansas Statutes Annotated, and any
amendments thereto,the code of civil procedure for
limited actions and shall apply to
original actions in the supreme court except:
(1) When made applicable in any other
courts, boards, commissions,
or other judicial or quasi-judicial bodies by specific statutory
provisions
referring to this article.
(2) When any other such court or judicial
or quasi-judicial body
adopts by an order, which order is consistent with all statutes
controlling
its procedures, all or a part of this article for its own
proceedings, either
in a particular matter before it or in any matters generally,
or
(3) When any statute pertaining to any
such court or other judicial
or quasi-judicial body, which statute was enacted prior to the
adoption of
this article and which incorporated by reference procedures under
the
then existing code of civil procedure, then the most nearly
comparable
provisions of this article shall be applicable to the procedures in
such
court or body until modified or supplemented by specific statutes
or or-
ders in accordance with clauses (1) or (2) of this section.
In any matter over which the court has
jurisdiction but with reference
to which no specific provision is included in this article, the
court shall
proceed in such manner as shall be just and equitable to protect
the rights
and interests of all parties affected thereby.
Sec. 112. K.S.A. 60-304 is hereby
amended to read as follows: 60-
304. As used in this section, ``serving'' means making service by
any of
the methods described in K.S.A. 60-303, and amendments thereto,
unless
a specific method of making service is prescribed in this section.
Except
for service by publication under K.S.A. 60-307, and amendments
thereto,
service of process under this article shall be made as follows:
(a) Individual. Upon an individual
other than a minor or a disabled
person, by serving the individual or by serving an agent authorized
by
appointment or by law to receive service of process, but if the
agent is
one designated by statute to receive service, such further notice
as the
statute requires shall be given. Service by certified mail shall be
addressed
to an individual at the individual's dwelling house or usual place
of abode
and to an authorized agent at the agent's usual or designated
address. If
service by certified mail to the individual's dwelling house or
usual place
of abode is refused or unclaimed, the sheriff, party or party's
attorney
seeking service may complete service by certified mail, restricted
delivery,
by serving the individual at a business address after filing a
return on
service stating the certified mailing to the individual at such
individual's
dwelling house or usual place of abode has been refused or
unclaimed
and a business address is known for such individual.
(b) Minor. Upon a minor, by
serving the minor and also either the
minor's guardian or conservator if the minor has one within the
state or
the minor's father or mother or other person having the minor's
care or
control or with whom such minor resides, or if service cannot be
made
upon any of them, then as provided by order of the judge. Service
by
certified mail shall be addressed to an individual at the
individual's dwell-
ing house or usual place of abode and to a corporate guardian or
conser-
vator at such guardian or conservator's usual place of
business.
(c) Disabled person. Upon a
disabled person, as defined in K.S.A.
59-3002, and amendments thereto, by serving (1) such person's
guardian,
conservator or a competent adult member of such person's family
with
whom the person resides, or if such person is living in an
institution, then
the director or chief executive officer of the institution or, if
service can-
not be made upon any of them, then as provided by order of the
judge,
and (2) unless the judge otherwise orders, the disabled person.
Service
by certified mail shall be addressed to a director or chief
executive officer
of an institution at the institution, to any other individual at
the individ-
ual's dwelling house or usual place of abode, and to a corporate
guardian
or conservator at such guardian or conservator's usual place of
business.
(d) Governmental bodies. (1) Upon
a county, by serving one of the
county commissioners or the county clerk or the county treasurer;
(2)
upon a township, by serving the clerk or the trustee; (3) upon a
city, by
serving the clerk or the mayor; (4) upon any other public
corporation,
body politic, district or authority by serving the clerk or
secretary or, if
not to be found, to any officer, director or manager thereof; and
(5) upon
the state or any governmental agency of the state, when subject to
suit,
by serving the attorney general or an assistant attorney general.
Service
by certified mail shall be addressed to the appropriate official at
the of-
ficial's governmental office. Income withholding orders for support
and
orders of garnishment of earnings of state officers and employees
shall
be served upon the state or governmental agency of the state in the
man-
ner provided by K.S.A. 60-723 and amendments thereto.
(e) Corporations and partnerships.
Upon a domestic or foreign cor-
poration or upon a partnership or other unincorporated association,
when
by law it may be sued as such, (1) by serving an officer, partner
or a
resident, managing or general agent, or (2) by leaving a copy of
the sum-
mons and petition at any business office of the defendant with the
person
having charge thereof, or (3) by serving any agent authorized by
appoint-
ment or required by law to receive service of process, and if the
agent is
one authorized by law to receive service and the law so requires,
by also
mailing a copy to the defendant. Service by certified mail on an
officer,
partner or agent shall be addressed to such person at the person's
usual
place of business.
(f) Foreign corporation or foreign
limited partnership resident agent.
Service of process or service of any notice or demand required or
per-
mitted by law to be served on a foreign corporation or foreign
limited
partnership may also be made on the corporation or limited
partnership
by service thereof on the resident agent of the corporation or
limited
partnership. Whenever any foreign corporation or foreign limited
part-
nership authorized to transact business or transacting business
without
authority in this state fails to appoint or maintain in this state
a resident
agent upon whom service of legal process or service of any such
notice
or demand may be had, whenever the resident agent of such
corporation
or limited partnership cannot with reasonable diligence be found at
the
registered office in this state or whenever the certificate of
authority of
any foreign corporation or foreign limited partnership is
forfeited, the
secretary of state shall be irrevocably authorized as the agent and
repre-
sentative of the foreign corporation or foreign limited partnership
to ac-
cept service of any process or service of any notice or demand
required
or permitted by law to be served upon the corporation or limited
part-
nership. Service on the secretary of state of any process, notice
or demand
against the foreign corporation or foreign limited partnership
shall be
made by delivering to and leaving with the secretary of state, or
with any
clerk having charge of the corporation department of the secretary
of
state's office, the original and two copies of the process and two
copies
of the petition, notice or demand, or the clerk of the court may
send the
original process and two copies of both the process and the
petition,
notice or demand directly to the secretary of state by restricted
mail. In
the event that any process, notice or demand is served on the
secretary
of state, the secretary shall immediately cause a copy thereof to
be for-
warded by restricted mail, addressed to the corporation or limited
part-
nership at its principal office as it appears in the records of the
secretary
of state, or to the registered or principal office of the
corporation or
limited partnership in the state of its incorporation or formation.
The
secretary of state shall keep a record of all processes, notices
and demands
served upon the secretary under this subsection, and shall record
in the
record the time of the service and the action of the secretary with
ref-
erence to it. A fee of $30 shall be paid to the secretary of state
by the
party requesting the service of process, to cover the cost thereof.
That
fee shall not be included within or paid from any deposit as
security for
any costs or docket fee required by K.S.A. 60-2001 or
61-2501section 95,
and amendments thereto.
(g) Insurance companies or
associations. Service of summons or other
process may also be made on any insurance company or association,
or-
ganized under the laws of the state of Kansas by service on the
commis-
sioner of insurance in the same manner as that provided for service
on
foreign insurance companies. All the requirements of law relating
to serv-
ice on foreign insurance companies so far as applicable shall also
apply
to domestic insurance companies.
(h) Service upon an employee. If
the plaintiff or the plaintiff's agent
or attorney files an affidavit that to the best of the affiant's
knowledge
and belief the defendant is a nonresident who is employed in this
state,
or that the place of residence of the defendant is unknown, the
affiant
may direct that the service of summons or other process be made by
the
sheriff or other duly authorized person by directing an officer,
partner,
managing or general agent, or the person having charge of the
office or
place of employment at which the defendant is employed, to make
the
defendant available for the purpose of permitting the sheriff or
other duly
authorized person to serve the summons or other process.
Sec. 113. K.S.A. 60-725 is hereby
amended to read as follows: 60-
725. Whenever the secretary of labor, pursuant to authority vested
in said the secretary under P.L. 90-321, shall promulgate rules and
regulations
establishing the amount of disposable earnings subject to wage
garnish-
ment, which rules and regulations are a result of a change in and
based
upon multiples of the minimum hourly wage established by
section
206(a)(1) of title 29 of the United States code, the clerks of the
several
district courts are hereby authorized and directed to amend the
instruc-
tions to the garnishee in the garnishee's answer form, as contained
in
subsection (b) of K.S.A. 60-718, and amendments thereto, to
correspond
to saidsuch rules and regulations
and in like manner, to amend the in- structions to the garnishee in the garnishee's answer form,
as contained in Form No. 8a in the appendix of forms following K.S.A.
61-2605, to correspond to said rules and regulations.
Sec. 114. K.S.A. 1999 Supp. 60-2202
is hereby amended to read as
follows: 60-2202. (a) Any judgment rendered in this state by a
court of
the United States or by a district court of this state in an action
com-
menced under chapter 60 of the Kansas Statutes Annotated shall be
a
lien on the real estate of the judgment debtor within the county in
which
judgment is rendered. Except as provided in subsection (c), the
lien shall
be effective from the time at which the petition stating the claim
against
the judgment debtor was filed but not to exceed four months prior
to the
entry of the judgment. An attested copy of the journal entry of the
judg-
ment, together with a statement of the costs taxed against the
judgment
debtor in the case, may be filed in the office of the clerk of the
district
court of any other county upon payment of the fee prescribed by
K.S.A.
28-170 and amendments thereto, and the judgment shall become a
lien
on the real estate of the debtor within that county from the date
of filing
the copy. The clerk shall enter the judgment on the appearance
docket
and index it in the same manner as if rendered in the court in
which the
clerk serves. Executions shall be issued only from the court in
which the
judgment is rendered.
(b) Any judgment rendered by a district
court of this state in an action
commenced under chapter 61 of the Kansas Statutes
Annotatedthe code of civil procedure for limited actions shall become a lien
on the real prop-
erty of the judgment debtor when the party in whose favor the
judgment
was rendered pays the fee prescribed by K.S.A. 28-170 and
amendments
thereto and the clerk of the district court enters the judgment in
the
appearance docket. The lien shall become a lien only upon the
debtor's
real property that is located in the county in which the filing is
made, but
a filing may be made in any county in which real property of the
judgment
debtor is located. Upon the filing of a journal entry of judgment
and
payment of the fee as provided in this section, the clerk of the
district
court shall enter it in the appearance docket. The lien shall cease
to be a
lien on the real property of the judgment debtor at the time
provided in
article 24 of this chapter.
(c) Notwithstanding the foregoing
provisions of this section, the filing
of a petition or other pleadings against an employee of the state
or a
municipality which alleges a negligent or wrongful act or omission
of the
employee while acting within the scope of the employee's
employment
shall create no lien rights as against the property of the employee
prior
to judgment, regardless of whether or not it is alleged in the
alternative
that the employee was acting outside the scope of the employee's
em-
ployment. A judgment against an employee shall become a lien upon
the
employee's property when the judgment is rendered only if it is
found
that (1) the employee's negligent or wrongful act or omission
occurred
when the employee was acting outside the scope of the employee's
em-
ployment or (2) the employee's conduct which gave rise to the
judgment
was because of actual fraud or actual malice of the employee; in
those
cases the lien shall not be effective prior to the date judgment is
rendered.
As used in this subsection, ``employee'' has the meaning provided
by
K.S.A. 75-6102 and amendments thereto.
(d) If unpaid arrearages accrued under a
support order rendered in
another state give rise to a lien on real property in the state
where ren-
dered, such arrearages shall become a lien on the real property of
the
obligor as of the date the clerk of the court in this state enters
the order
in the appearance docket. The clerk of the court shall enter the
order in
the appearance docket upon receiving payment of the fee prescribed
by
K.S.A. 28-170 and amendments thereto; a sworn statement that the
ob-
ligor was provided at least 30 days' prior written notice that the
lien would
be filed in this state, that the obligor was provided an
opportunity for
hearing concerning the proposed filing and that no hearing was
timely
requested or the decision therein allows the lien to be filed; a
sworn
statement of the amount of the lien; and a legible copy of the
support
order or, in a title IV-D case, a notice of lien that describes the
support
order. The lien shall become a lien only upon the obligor's real
property
that is located in the county in which the filing is made, but a
filing may
be made in any county in which real property of the obligor is
located.
The lien shall cease to be a lien on the real property of the
obligor at the
time provided in article 24 of this chapter. As used in this
section, ``title
IV-D case'' means a case being administered pursuant to part D of
title
IV of the federal social security act (42 U.S.C. § 651 et
seq.) and amend-
ments thereto. Any person filing the documents required by this
subsec-
tion shall be deemed to have submitted to the jurisdiction of the
courts
of this state with respect to any action in this state to determine
the
validity of the lien or the lien's attachment to any real
property.
(e) A person named as the debtor in a
notice of lien filed pursuant
to subsection (d) based upon a support order issued in another
state, or
a person whose interest in real estate is affected by the filing of
such a
notice of lien may file a petition pursuant to chapter 60 of the
Kansas
Statutes Annotated, and amendments thereto, with the district
court
where the notice of lien was filed. The petitioner shall notify the
person
who filed the notice of lien that a hearing to contest the validity
of the
lien or the lien's attachment to the petitioner's property will be
held no
less than 30 days after the date of mailing or personal service of
the notice.
Sec. 115. K.S.A. 60-2418 is hereby
amended to read as follows: 60-
2418. (a) In all cases in which a judgment is rendered pursuant to
chapter 61 of the Kansas Statutes Annotatedthe code of
civil procedure for limited actions, the party in whose favor judgment is rendered may
pay the fee
prescribed by K.S.A. 28-170 and amendments thereto. Upon payment
of
the fee the clerk of the district court in the county in which the
judgment
was rendered shall renumber the case as a case filed under this
chapter
and enter payment of the fee and the renumbering of the case on
the
appearance docket of the case. The judgment shall become a lien on
the
real estate of the judgment debtor in the county from the date of
the
entry. Execution to satisfy the judgment shall proceed in the same
manner
as original judgments in the district court pursuant to this
chapter.
(b) If any judgment filed pursuant to
this section becomes dormant,
it may be revived in the same manner as other judgments in the
district
court.
Sec. 116. K.S.A. 75-6103 is hereby
amended to read as follows: 75-
6103. (a) Subject to the limitations of this act, each governmental
entity
shall be liable for damages caused by the negligent or wrongful act
or
omission of any of its employees while acting within the scope of
their
employment under circumstances where the governmental entity, if
a
private person, would be liable under the laws of this state.
(b) (1) Except as otherwise
provided in this act, either the code of
civil procedure or, subject to provision (2) of this subsection,
the code of
civil procedure for limited actions shall be applicable to actions
within
the scope of this act. Actions for claims within the scope of the
Kansas
tort claims act brought under the code of civil procedure for
limited
actions are subject to the limitations provided in K.S.A.
61-1603section 2, and amendments thereto.
(2) Actions within the scope of the
Kansas tort claims act may not be
brought under the small claims procedure act.
Sec. 117. K.S.A. 58-227, 58-2542, 58-25,102,
60-201, 60-213, 60-
265, 60-304, 60-725, 60-2418, 61-1601, 61-1603 through 61-1605,
61-
1608, 61-1701 through 61-1703, 61-1703a, 61-1704 through 61-1709,
61-
1711 through 61-1719, 61-1721 through 61-1723, 61-1725a,
61-1726,
61-1728, 61-1801 through 61-1803, 61-1805 through 61-1807,
61-1901
through 61-1909, 61-2001 through 61-2012, 61-2101, 61-2102,
61-2104
through 61-2109, 61-2201 through 61-2204, 61-2301 through
61-2304,
61-2306 through 61-2311, 61-2402 through 61-2405, 61-2502,
61-2503,
61-2601 through 61-2605 and 75-6103 and K.S.A. 1999 Supp.
19-4737,
20-302b, 20-362, 58-2565, 60-2202, 61-1710, 61-1720, 61-1724,
61-1725,
61-1729, 61-2013, 61-2014, 61-2103, 61-2305, 61-2401, and 61-2501
are
hereby repealed.
Sec. 118. This act shall take effect and be in
force from and after
January 1, 2001, and its publication in the statute book.