Handbook
Handbook
The following material is exclusively published as a study guide for Registered Process
Servers. The content of this handbook should not be construed as legal advice. The statutes
inserted from Montana Code Annotated and any case law sited in this handbook should be
used for reference only. Case law and Statutes change. It is incumbent upon the Registered
Process Server and Levying Officer to be vigilant of any and all changes that could affect
their duties. Since the duties and responsibilities of a Registered Process Server and Levying
Officer are often subject to interpretation and it is always best to seek legal advice from an
attorney.
This handbook contains some of the more common statutes and rules governing the service
of process. However, there are additional statutes and rules to be found throughout Montana
Code Annotated and elsewhere. Because of the complexities and liabilities inherent when
performing levies, this handbook should be considered only one resource. Montana Code
Annotated and the Code of Federal Regulations are relevant sources of legal information.
Additionally, information helpful to a levying officer can be found in the Sheriffs &
Constables Volume of American Jurisprudence 2d.
Please note that the laws governing a wide array of legal issues are not addressed in this
handbook. Many subjects will require individual research since today’s process server will
likely be called upon to perform duties not limited to the service of court documents.
Disclaimer
2
for
Table of Contents
3
Table of Contents
Introduction to “Process” ..................................................................................................... 8
Table of Contents
4
Penalty for a Person Obstructing Service of Process ……………………………………….…..… 25
Delivery of Papers to Officer ……………………..….……………………………………….…... 25
Execution of Process Justified ………………………………………………………….….……… 25
Prepayment of Costs of Service …………………..…………………………………………...….. 25
Officer to Exhibit Process …………………………………………………………….……..…… 25
Execution of Process When Sheriff is a Party ………..………………………………………...… 26
Return of Service for Served Process – Time and Manner ……………………………………….. 26
Return is Prima Facie Evidence ……………………………………………………………….…. 26
Persons to be Served ………………………………………………………………………..….…. 26
Service of Telephonic Copy ….……………………………………………………………….….. 26
Secretary of States Record of Process Served …………………………………………….….…… 27
Papers with Technical Defects …………………………………….………………………….…… 27
Enforcement of a Judgment
Time for Issuing a Writ of Execution …………………………………………………………..… 45
Execution when one Party is Deceased …………………………………………………………... 45
Judgment for Money or Possession of Real or Personal Property ………………………………... 45
Judgments Requiring the Sale of Property ………………………………………………….…….. 45
Judgment Requiring Specific Acts ……………………………………………..……….……..….. 45
Enforcement for an Order ……………………………………………………………..……..……. 46
Notification of Seizure ………………………………………………………………………..…… 46
Notice of Seizure Sample Form ……………………………………………………………..…….. 47
Claiming an exemption ………………………………………………………………………...….. 48
Warrant of Execution ………………………………………………………………………..….…. 48
Table of Contents
5
Definition of a Foreign Judgment ……………………………………………………………..…... 49
Notice of Filing a Foreign Judgment …………………………………………….…………..……. 49
Table of Contents
6
Procedure When the Purchased Refuses to Pay the High Bid Amount ………….………………… 63
Authority to Refuse Subsequent Bids Following a Refusal to Pay …………………………..……. 63
Liability for the Levying Officer Following a Resale ……..…………………………….….….….. 63
Conveyance of Property Capable of Manual Delivery ………………………………………..….... 63
Conveyance of Property Not Capable of Manual Delivery ………………………………………... 64
Real Property – What Interest is Transferred ………………………………………………..…….. 64
Real Property – Format of a Certificate of Sale ……………………………………….……..…….. 64
Property Subject to a Security Interest – Disposition of Proceeds ……………………………….… 64
Procedure When Sale Invalidated ……………………………………………………….……….… 64
Table of Contents
7
Suggestions for Process Servers
Checklist: What to do before Service …………………………………………………………….... 74
Attempting to Effect Service ………………………………………………………………………. 75
During the Act of Serving …………………………………………………………………………. 76
If Service is not Accomplished ……………………………………………………………………. 76
Following Service …………………………………………………………………..……………… 77
Safety & Defensive Techniques ………………………………………………………….………… 78
Introduction to “Process”
Table of Contents
8
Introduction to Process
Note: There are three distinct descriptions of process: Original Process, Mesne Process
and Final Process. An example of original process would be a summons while mense
process could be subpoena and a writ of execution would an example of final process.
Definition of process from Montana Code --"Process" includes all writs, warrants,
summonses, and orders of courts of justice or judicial officers.
The filing of a complaint with the court commences a civil dispute. Filing the suit
alone does not give the court jurisdiction over the defendant(s) in the lawsuit. The
defendant(s) must be served with the lawsuit (or must voluntarily submit to the
jurisdiction of the court) for the court to have jurisdiction over him or her.
Montana courts have rules that require a response from a defendant in an allotted
number of days depending on the type of case.
Once service is perfected, a "discovery period" begins. Discovery is the period when
the parties gather evidence to prosecute or defend the action. The plaintiff may
commence discovery based upon the date service is complete. The methods of
discovery dictate the specific time. Discovery commences immediately for the
defendant upon service. Process servers participate in the discovery process by
serving subpoenas for depositions, notice to the opposing party to compel other
discovery such as interrogatories or a notice to produce records, or to give notice of a
motion.
Process servers also participate in the trial process by serving subpoenas on third
party witnesses or by serving notice on the opposing party to compel attendance or
production of witnesses and/or records at the trial. If a witness was deposed in the
case and he or she cannot be served with a trial Subpoena, a declaration of diligent
effort or unavailability of the witness may be filed to allow the previous deposition to
be evidenced into the record.
Introduction to Process
9
Requirements, Qualifications
and Provisions
for
Process Servers
&
Levying Officers
What is Required
25-1-1102. Contents of registration certificate. The certificate of registration of a
process server must contain the following statements:
(1) the name, age, address, and telephone number of the registrant;
(2) that the registrant has not been convicted of a felony;
(3) that the registrant has been a resident of this state for a period of 1 year immediately
preceding the filing of the certificate; and
(4) that the registrant will perform his duties as a process server in compliance with the
provisions of law governing the service of process in this state.
Registration Statutes
11
(2) The board of private security, established in 2-15-1781, shall develop and administer an
examination for applicants for registration as a process server based on the handbook.
(3) The department of labor and industry may charge a reasonable examination fee to cover
the costs of publishing the handbook and administering the examination provided for in this
section.
25-1-1111. Bond required -- levy limited. (1) After completing the requirements in
Title 37, chapter 60, for registration, a process server shall provide the board of private
security with proof of a surety bond of $10,000 for an individual or $100,000 for a firm,
conditioned upon compliance with this part, all laws governing service of process in this state,
and the requirements of Title 37, chapter 60. A clerk of court holding a surety bond for a
process server under this section as of June 30, 2007, shall transfer the original bond and any
supporting documentation to the board on July 1, 2007.
(2) A levying officer may not levy on a judgment that exceeds the value of the bond.
37-60-301. License required -- process server registration required. (1) (a) Except
as provided in 37-60-105, it is unlawful for any person to act as or perform the duties, as
defined in 37-60-101, of a contract security company, a proprietary security organization, an
electronic security company, a branch office, a private investigator, a fire investigator, a
security alarm installer, an alarm response runner, a resident manager, a certified firearms
instructor, or a private security guard without having first obtained a license from the board.
(b) Except as provided in 25-1-1101(2), it is unlawful for any person to act as or perform
the duties of a process server for more than 10 services of process in a calendar year without
being issued a certificate of registration by the board.
(2) It is unlawful for any unlicensed person to act as, pretend to be, or represent to the
public that the person is licensed as a contract security company, a proprietary security
organization, an electronic security company, a branch office, a private investigator, a fire
investigator, a security alarm installer, an alarm response runner, a resident manager, a
certified firearms instructor, or a private security guard.
(3) A person appointed by the court as a confidential intermediary under 42-6-104 is not
required to be licensed under this chapter. A person who is licensed under this chapter is not
authorized to act as a confidential intermediary, as defined in 42-1-103, without meeting the
requirements of 42-6-104.
(4) A person who knowingly engages an unlicensed contract security company, proprietary
security organization, electronic security company, branch office, private investigator, fire
investigator, security alarm installer, alarm response runner, resident manager, certified
firearms instructor, or private security guard is guilty of a misdemeanor punishable under 37-
60-411.
Registration Statutes
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Registration Statutes
13
part must be licensed pursuant to the requirements of this part or, if doing business as a
process server, must be registered by the board.
37-60-310. Display of license and identification card. (1) A license must at all times be
posted in a conspicuous place in the principal place of business of the licensee.
(2) A holder of an identification card shall carry the card while performing the cardholder's
duties. A peace officer of this state or any of its political subdivisions may request to see the
card at any reasonable time, and the card must be shown.
Registration Statutes
14
37-60-101. Definitions. As used in this chapter, the following definitions apply:
(1) "Alarm response runner" means an individual employed by an electronic security
company, a contract security company, or a proprietary security organization to respond to
security alarm system signals.
(2) "Armed" means an individual who at any time wears, carries, or possesses a firearm in
the performance of professional duties.
(3) "Armed carrier service" means any person or security company who transports or offers
to transport under armed private security guard from one place to another any currency,
documents, papers, maps, stocks, bonds, checks, or other items of value that require
expeditious delivery.
(4) "Armed private investigator" means a private investigator who at any time wears,
carries, or possesses a firearm in the performance of the individual's duties.
(5) "Armed private security guard" means an individual employed by a contract security
company or a proprietary security organization whose duty or any portion of whose duty is
that of a security guard, armored car service guard, or carrier service guard and who at any
time wears or carries a firearm in the performance of the individual's duties.
(6) "Armored car service" means any person or security company who transports or offers
to transport under armed private security guard from one place to another any currency,
jewels, stocks, bonds, paintings, or other valuables of any kind in a specially equipped motor
vehicle that offers a high degree of security.
(7) "Board" means the board of private security provided for in 2-15-1781.
(8) "Branch office" means any office of a licensee within the state, other than its principal
place of business within the state.
(9) "Contract security company" means any person who undertakes to provide a private
security guard, alarm response runner, armored car service, street patrol service, or armed
carrier service on a contractual basis to another person who exercises no direction and control
over the performance of the details of the services rendered.
(10) "Department" means the department of labor and industry provided for in 2-15-1701.
(11) (a) "Electronic security company" means a person who installs, services, or maintains
a security alarm system and who undertakes to hire, employ, and provide alarm response
runners and security alarm installers on a contractual basis to another person who does not
exercise direction and control over the performance of the services rendered.
(b) The term does not include a person whose primary business is that of a locksmith and
who may also install closed-circuit television cameras and battery-operated door devices.
(12) (a) "Fire investigator" means a person other than an individual identified in subsection
(12)(b) who for any consideration:
(i) makes or agrees to make an investigation with reference to:
(A) a fire to identify evidence and determine the cause of the fire; or
(B) accidents involving suspected negligence or arson for criminal or civil action;
(ii) testifies as an expert witness for investigations identified under this subsection (12); or
(iii) cooperates with law enforcement agencies in conducting fire investigations and
collecting evidence relating to fires.
(b) The term does not mean an insurance adjuster, an individual designated as the state fire
marshal under 2-15-2005, or a member of:
(i) a fire department as described in 7-3-1345;
(ii) law enforcement; or
(iii) an entity organized under Title 7, chapter 33.
Registration Statutes
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(13) "Firearms course" means the course approved by the board and conducted by a
firearms instructor.
(14) "Firearms instructor" means an individual who has been approved by the board to
instruct firearms courses in the use of weapons.
(15) "Insurance adjuster" means a person employed by an insurance company, other than a
private investigator, who for any consideration conducts investigations in the course of
adjusting or otherwise participating in the disposal of any claims in connection with a policy
of insurance but who does not perform surveillance activities or investigate crimes against the
United States or any state or territory of the United States.
(16) "Licensee" means a person licensed under this chapter.
(17) "Paralegal" or "legal assistant" means a person qualified through education, training,
or work experience to perform substantive legal work that requires knowledge of legal
concepts and that is customarily but not exclusively performed by a lawyer and who may be
retained or employed by one or more lawyers, law offices, governmental agencies, or other
entities or who may be authorized by administrative, statutory, or court authority to perform
this work.
(18) "Person" means an individual, firm, company, association, organization, partnership,
or corporation.
(19) "Private investigator" means a person other than an insurance adjuster who for any
consideration makes or agrees to make any investigation with reference to:
(a) crimes against the United States or any state or territory of the United States;
(b) the identity, habits, conduct, business, occupation, honesty, integrity, trustworthiness,
efficiency, loyalty, activity, movement, location, affiliations, associations, transactions,
reputation, or character of any person;
(c) the location, disposition, or recovery of lost or stolen property;
(d) the cause or responsibility for libels, losses, accidents, or injury to persons or property;
or
(e) gathering evidence to be used before any court, board, officer, or investigating
committee.
(20) "Private security guard" means an individual employed or assigned duties to protect a
person or property or both a person and property from criminal acts and whose duties or any
portion of whose duties include but are not limited to the prevention of unlawful entry, theft,
criminal mischief, arson, or trespass on private property or the direction of the movements of
the public in public areas.
(21) "Process server" means a person described in 25-1-1101(1).
(22) "Proprietary security organization" means any person who employs a private security
guard, alarm response runner, armored car service, street patrol service, or armed carrier
service on a routine basis solely for the purposes of that person and exerts direction and
control over the performance of the details of the service rendered.
(23) "Resident manager" means the person appointed to exercise direct supervision,
control, charge, management, or operation of each branch office located in this state where the
business of the licensee is conducted.
(24) (a) "Security alarm installer" means an individual who installs, services, or maintains
security alarm systems to detect and signal unauthorized intrusion, movement, break-in, or
criminal acts and is employed by an electronic security company.
(b) The term does not include a person whose primary business is that of a locksmith and
who may also install closed-circuit television cameras and battery-operated door devices.
Registration Statutes
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(25) (a) "Security alarm system" means an assembly of equipment and devices or a single
device or a portion of a system intended to detect or signal or to both detect and signal
unauthorized intrusion, movement, or criminal acts at a location.
(b) The term does not include systems that monitor temperature, humidity, or any other
atmospheric condition not directly related to the detection of an unauthorized intrusion or
criminal act at a location.
(26) "Security company" means an electronic security company, a proprietary security
organization, or a contract security company.
(27) "Street patrol service" means a person providing patrols by means of foot, vehicle, or
other method of transportation using public streets, thoroughfares, or property in the
performance of the person's duties and responsibilities.
(28) "Unarmed private investigator" means a private investigator who does not wear, carry,
or possess a firearm in the performance of the individual's duties.
(29) "Unarmed private security guard" means an individual who is employed by a contract
security company or a proprietary security organization, whose duty or any portion of whose
duty is that of a private security guard, armored car service guard, or alarm response runner,
and who does not wear, carry, or possess a firearm in the performance of those duties.
Registration Statutes
17
notifies the board that its agents are operating in the state;
(j) insurers and insurance producers and insurance brokers licensed by the state while
performing duties in connection with insurance transacted by them;
(k) an insurance adjuster, as defined in 37-60-101; or
(l) an internal investigator or auditor while making an investigation incidental to the
business of the agency or company by which the investigator or auditor is singularly and
regularly employed.
(2) (a) Except as provided in subsection (2)(b), persons listed as exempt in subsection (1)
are not exempt for the purposes of acting as registered process servers.
(b) Subsection (2)(a) does not apply to attorneys or persons who make 10 or fewer services
of process in a calendar year, as provided in 25-1-1101.
Purpose of Title 37
37-60-103. Purpose. The purpose of this chapter is to increase the levels of integrity,
competency, and performance of security companies and their employees who are required to
be licensed, firearms instructors, fire investigators, private investigators, and process servers
to safeguard the public health, safety, and welfare against illegal, improper, or incompetent
actions committed by security companies and their licensed employees, firearms instructors,
fire investigators, private investigators, or process servers.
Registration Statutes
18
What Constitutes
Personal Service
Registration Statutes
19
What constitutes a Service -- Original Process
What is Personal Service
Personal service is made when the document(s) are delivered directly to the
defendant or witness. It usually is presumed that the process server delivers the
document(s) in hand to the person and that service is made face-to-face. A personal
service may also mean that the documents must be left in the person's presence.
Some statutes designate "personal service" as a manner of service distinguishable
from other alternative manners of service, such as mail or posting. The context of
"personal service" in these statutes designates a form of personal service by hand
rather than by mail, post, fax or otherwise.
Personal service is preferred because the process server gives direct notice of a
pending action to the defendant. The service is the first step giving the court
jurisdiction over the defendant. Without jurisdiction over the person being served, the
court has no legal power to bind or compel the person to act or not act. Additionally,
the process server could be requested (or compelled by the court) to offer evidence
that a personal service was made. A face-to-face delivery provides the server an
opportunity to note the defendant's description, an invaluable piece of evidence
proving that personal service was made. Occasionally disputes arise as to whether a
proper personal service was made and the process server may have to describe the
defendant or witness, the circumstances of the situation when service took place, and
the conversation that took place. Therefore, it is preferable to see the person being
served so that he or she may be identified later.
The person may not invalidate service by refusing to accept the document(s).
Leaving the document(s) in the presence of the defendant constitutes personal
service. The courts have held that service cannot be defeated by a defendant simply
walking away and not accepting the document(s). Service of process is not always a
pleasant experience. Defendants are not always cooperative therefore, the
recognized guiding legal authority holds that three elements must be present for a
valid personal service. Service must be made (a) while the server is within normal
speaking distance from the person being served; (b) the server must inform the
person that he or she is being served and the general nature of the document(s); and
(c) the server must leave the document(s) with the person being served or in a place
where the person served has reasonable access to them. (In re Ball (1934) 2
Cal.App.2d 578,38 P.2d 411)
The process server must describe the "general nature" of the documents. The
description could simply be "legal documents" or "a lawsuit”. The server should avoid
counseling the defendant. If the person being served has additional questions, the
server may suggest that they contact a lawyer.
If a Subpoena is being served, for instance, it is helpful to the witness if the server
points out the box containing the date, time, and location of the required appearance.
People who have never been served may not be readily familiar with the legal form.
Pointing to the information on the document is not required but helpful to the person
being served.
Explaining the general nature of the documents satisfies a legal requirement. It also
may relieve some anxiety the defendant or witness may have regarding the event of
being served with a legal document. Since there can be a real potential for anxiety, or
even violence, explaining the general nature of the documents usually diffuses the
potential for volatility. Of course, not all service situations lend themselves even to a
brief description of the documents and, in some cases, telling the defendant or
witness more about the suit may even heighten his or her anxiety.
Occasionally, the person served may attempt to avoid service by walking away from
the process server when he or she attempts to make service. The courts have held
"... that when men are within easy speaking distance of each other and facts occur
that would convince a reasonable man that person service of a legal document is
being attempted, service cannot be avoided by denying service and moving away
without consenting to take the document in hand."
General Comments
The types of business entities and documents to be served determine the proper
method of service. The law relating to service of entities other than an individual
specifies a "person upon whom service may be made". In several instances the
District Court Rules governing Service of process vary from the Justice Court Rules
for Service of process. The following guidelines for service on the appropriate person
or entity are general in nature. Note the material differences between The District
Court and Justice Court Rule’s governing service.
• Officer
• Director
• Manager
• Member
• Registered Agent for Service
• Superintendent
• The person “in charge” at a corporate facility.
• Commissioner
• Trustee
• Board member
• Mayor
• Head of the legislative department
• Attorney General and any other party which may be prescribed by statute
Service on a person who has been adjudged of unsound mind by a Montana court
should be made to the person’s guardian.
Service on a minor under the age of 14 years should be made to the minor’s guardian
if the guardian can be found in the state. If not, then service should be made to the
minor’s father or mother or person or agency having control of the minor or to the
person with whom the minor resides.
Service upon a minor over the age of 14 years service should be made both to the
minor personally and to an adult at the minor’s residence.
A minor would be anyone under the age of 18 years. Service upon a minor is made
by serving the minor personally and serving the minor’s guardian.
Current
Montana Code Annotate
Statutes & Rules
Governing
Service of Process
25-3-101. Definitions. As used in parts 2 and 3 of this chapter, the following definitions
apply:
(1) "Notice" includes all papers and orders (except process) required to be served in any
proceeding before any court, board, or officer or required by law to be served independently
of such proceeding.
(2) "Process" includes all writs, warrants, summonses, and orders of courts of justice or
judicial officers.
25-3-201. Delivery of papers to officer. (1) (a) It is the duty of a party in any civil
action pending in a district court or the party's agent or attorney to forward by mail any
process, summons, or other papers required in the cause.
(b) It is the duty of the sheriff, registered process server, or other officer to whom the
process, summons, or papers described in subsection (1)(a) may be directed to receive the
process, summons, or papers at the place where the documents are directed.
(2) If the papers are delivered for service away from the county seat, all necessary copies
must be furnished for service.
(3) If a sheriff, registered process server, or other officer refuses to receive a summons or
other process at the point where it was directed or refuses to serve the summons or process,
the sheriff, registered process server, or other officer is guilty of a misdemeanor and upon
conviction shall be fined a sum not exceeding $100.
25-3-204. Officer to exhibit process. The officer or registered process server executing
a service of process shall display the service of process, all attached papers, and an
25-3-205. Execution of process when sheriff a party. When the sheriff is a party to an
action or proceeding, the process and orders therein which it would otherwise be the duty of
the sheriff to execute must be executed by the coroner of the county or a registered process
server.
25-3-301. Time and manner of return. (1) The sheriff or other person serving a
summons or other process or order required by any of the provisions of law, issued for any of
the courts of this state, shall make due and legal return of the service and file the return with
the clerk of the court in which the action or proceeding is pending. The return must be made
within 10 days after making the service if the service was made in the county in which the
action or proceeding is pending and within 20 days after making the service when the service
was made outside of the county in which the action or proceeding is pending. Any failure to
make and file the return may be punished as a contempt of court.
(2) When process or a notice is returnable to another county or was forwarded under 25-3-
201, the sheriff or a registered process server may enclose a return of process or notice in an
envelope addressed to the officer who sent it and deposit it in the post office, postage prepaid.
(3) In compliance with the provisions of subsection (1) and in lieu of returning a summons,
other process, or order to the clerk of court, the sheriff or levying officer may enclose the
return of the summons, process, or order in an envelope, postage prepaid, and deposit it in the
post office addressed to the officer, agent, or attorney who sent it.
25-3-302. Return prima facie evidence. The return of the sheriff or registered process
server upon process or notices is prima facie evidence of the proof of the process or notices
having been served as stated.
25-3-501. Service of telephonic or telegraphic copy. (1) Any summons, writ, or order
in any civil action or proceeding and all other papers requiring service may be transmitted by
telegraph or telephone for such service in any place; and the telegraphic or telephonic copy of
such writ, order, or paper so transmitted may be served or executed by the officer or person to
whom it is sent for that purpose and returned by him, if any return be requisite, in the same
manner and with the same force and effect in all respects as the original thereof might be
delivered to him; and the officer or person serving or executing the same has the same
authority and is subject to the same liabilities as if the copy were the original.
(2) The original, when a writ or order, must also be filed in the court from which it was
issued, and a certified copy thereof must be preserved in the telegraph or telephone office
from which it is sent. In sending it, either the original or certified copy may be used by the
25-3-604. Secretary of state's record of process served. The secretary of state shall
keep a record of all such summonses and process, which shall show the day of service.
25-4-112. Papers with technical defects. An affidavit, notice, or other paper without
the title of the action or proceeding in which it is made or with a defective title is as valid and
effectual for any purpose as if duly entitled if it intelligibly refers to such action or
proceeding.
Rule 4B. Jurisdiction of persons. (1) Subject to jurisdiction. All persons found within the
state of Montana are subject to the jurisdiction of the courts of this state. In addition, any
person is subject to the jurisdiction of the courts of this state as to any claim for relief arising
from the doing personally, through an employee, or through an agent, of any of the following
acts:
(a) the transaction of any business within this state;
(b) the commission of any act which results in accrual within this state of a tort action;
(c) the ownership, use or possession of any property, or of any interest therein, situated
within this state;
(d) contracting to insure any person, property or risk located within this state at the time of
contracting;
(e) entering into a contract for services to be rendered or for materials to be furnished in
this state by such person; or
(f) acting as director, manager, trustee, or other officer of any corporation organized under
the laws of, or having its principal place of business within this state, or as personal
representative of any estate within this state.
(2) Acquisition of jurisdiction. Jurisdiction may be acquired by our courts over any person
through service of process as herein provided; or by the voluntary appearance in an action by
Rule 4C. Process. (1) Summons -- issuance. Upon or after filing the complaint, the
plaintiff or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall present a
summons to the clerk for issuance. If the summons is in proper form, the clerk shall issue it
and deliver it to the plaintiff or to the plaintiff's attorney who shall thereafter deliver it for
service upon the defendant in the manner prescribed by these rules. Issuance and service of
the summons shall be accomplished within the times prescribed by Rule 4E of these rules.
Upon request, the clerk shall issue separate or additional summons against any parties
designated in the original action, or against any additional parties who may be brought into
the action, which separate or additional summons shall also be served in the manner and
within the times prescribed by these rules. The party requesting issuance of the summons shall
bear the burden of having it properly issued and served and filed with the clerk.
(2) Summons -- form. The summons shall be signed by the clerk, be under the seal of the
court, contain the name of the court and the names of the parties, be directed to the defendant,
state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address,
and the time within which these rules require the defendant to appear and defend, and shall
notify the defendant that in case of the defendant's failure to do so judgment by default will be
rendered against the defendant for the relief demanded in the complaint. In an action brought
to quiet title to real estate, there shall be added to the foregoing, the following: "This action is
brought for the purpose of quieting title to land situated in ... County, Montana, and described
as follows: (Here insert descriptions of land.)." For exceptions to this form of summons see
4D(4) "Other service," set forth hereinafter.
Rule 4D. Service. (1) By whom served. (a) Service of all process shall be made in the
county where the party to be served is found by a sheriff, deputy sheriff, constable, or any
other person over the age of 18 not a party to the action.
(b) (i) A summons and complaint may also be served upon a defendant who is an
individual other than a minor or an incompetent person or upon a domestic or foreign
corporation or partnership or other unincorporated association by mailing a copy of the
summons and complaint (by first class mail, postage prepaid) to the person to be served,
together with two copies of a notice and acknowledgment conforming substantially to form
18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment
of service under this subdivision of this rule is received by the sender within 20 days after the
date of mailing the summons and complaint, service of such summons and complaint shall be
made by one of the persons mentioned in Rule 4D(1)(a) in the manner prescribed by Rule
4D(2) and Rule 4D(3).
(ii) Unless good cause is shown for not doing so, the court shall order the payment of costs
of the personal service by the person served if such person does not complete and return
within 20 days after mailing, the notice and acknowledgment of receipt of summons.
(iii) The notice and acknowledgment of receipt of summons and complaint shall be signed
and dated. Service of summons and complaint will be deemed complete on the date of
signature of the defendant as shown on the acknowledgment.
(2) Personal service within the state. The summons and complaint shall be served together.
The plaintiff shall furnish the person making service with such copies as are necessary.
Service shall be made as follows:
Rule 4E. Time limit for issuance and service of process. (1) A plaintiff shall have 3
years after filing a complaint to have a summons issued and accomplish service. Unless
appearance has been made by the defendant(s), the court, upon motion or on its own initiative,
shall dismiss an action without prejudice if a plaintiff fails to either have the summons issued
or fails to accomplish service within 3 years from the date of the filing of a complaint. The
plaintiff shall file the summons with the clerk of the court within 30 days after service,
however, failure to do so shall not affect the validity of service or serve as a basis for
dismissal of said action.
(2) A plaintiff who names a fictitious defendant in the complaint, pursuant to 25-5-103,
MCA, may amend the complaint to substitute a real defendant for the fictitious defendant
within 3 years of filing the original complaint in the action. The 3 year time period set forth in
subparagraph (1) of this rule for issuance and service begins to run, as to the newly identified
defendant, from the date of the filing of the original complaint.
(3) The time limit imposed by subparagraphs (1) and (2) above shall apply to all lawsuits
in which the original complaints were filed on or after January 1, 2000. The provisions of
Rule 41(e), M.R.Civ.P., replaced by this rule, shall apply to all lawsuits in which the original
complaint was filed before January 1, 2000.
B. JURISDICTION OF PERSONS.
(1) Subject to jurisdiction. All persons are subject to the jurisdiction of a justice or city
court who reside or are found within the State of Montana.
(2) Acquisition of jurisdiction. A justice or city court may acquire jurisdiction over a
person through service of process as provided in these rules, through the voluntary appearance
in an action by a person, either personally or through an attorney or any other authorized
officer, agent, or employee. Each defendant must be served separately.
C. PROCESS.
(1) Summons -- issuance. Upon the filing of the complaint, the judge or the clerk shall
issue a summons upon request of a plaintiff. Separate or additional summons must be issued,
upon request, against any parties designated in the original action or against any additional
parties who may be brought into the action.
(2) Summons -- form. The summons must be directed to the defendant and signed by the
judge or clerk and must contain:
(a) the title of the court, the name of the county and city in which the action is commenced,
and the names of the parties to the action;
(b) a direction that the defendant appear and file a written answer in the justice or city court
within 20 days after service of summons and complaint, exclusive of the day of service, or
such other period as may be specified by law, and serve a copy upon the plaintiff or the
plaintiff's attorney;
(c) a statement that upon failure to appear and answer or assert a counterclaim, the plaintiff
may take judgment against the defendant by default for the relief demanded in the complaint;
and
(d) the name, address, and telephone number of the plaintiff or the plaintiff's attorney.
___________________
Plaintiff/Plaintiff Attorney
___________________
Address
____________________
Plaintiff/Plaintiff Attorney telephone number
___________________, )
Plaintiff, ) Civil Case________
vs . ) SUMMONS
___________________, )
Defendant. )
_______ ) _______
_________________________________
JUDGE/CLERK OF COURT
D. SERVICE OF PROCESS.
(1) By whom served.
(a) Service of all process must be made by a sheriff of the county where the party to be
served is found, by a deputy, by a constable authorized by law, or by any other person 18
years of age or older who is not a party to the action.
(b) (i) A summons and complaint may also be served upon a defendant who is an
Rule 6. Time.
B. EXTENSION. When by these rules, by a notice given under these rules, or by order of a
court an act is required or allowed to be done at or within a specified time, the judge for cause
shown may extend the period if a motion is made before the expiration of the period originally
prescribed or extended by previous permission of the court or after expiration of the specified
period if failure to act was the result of excusable neglect.
C. ADDITIONAL TIME AFTER SERVICE BY MAIL. Whenever a party has the right or
is required to do an act or take a proceeding within a prescribed period after service of a notice
or other paper and the notice or other paper is served by mail, 3 days must be added to the
prescribed period
25-13-103. Execution after death of a party. Notwithstanding the death of a party after
the judgment, execution thereon may be issued or it may be enforced as follows:
(1) In case of the death of the judgment creditor, it may be enforced upon the application of
his executor or administrator or successor in interest.
(2) In case of the death of the judgment debtor, if the judgment be for the recovery of real
or personal property or the enforcement of a lien thereon, execution may be issued with the
same effect as if he were still living.
25-13-201. Judgments for money or the possession of property. When the judgment
is for money or the possession of real or personal property, the same may be enforced by a
writ of execution; and if the judgment direct that the defendant be arrested, the execution may
issue against the person of the judgment debtor after the return of an execution against his
property unsatisfied in whole or in part.
25-13-202. Judgments requiring the sale of property. When the judgment requires the
sale of property, the same may be enforced by a writ reciting such judgment or the material
parts thereof and directing the proper officer to execute the judgment by making the sale and
applying the proceeds in conformity therewith.
25-13-203. Judgments requiring the performance of specific acts. (1) When the
judgment requires the performance of any other act than those designated in 25-13-201 and
25-13-202, a certified copy of the judgment may be served upon the party against whom the
same is rendered or upon the person or officer required thereby or by law to obey the same,
and obedience thereto may be enforced by the court.
(2) Where a judgment directs a party to make a deposit or delivery or to convey real
property, if the direction is disobeyed, the court, besides punishing the disobedience as a
contempt, may by order require the sheriff or levying officer, who may be a registered process
server, to take and deposit or deliver the money or other personal property or to convey the
real property in conformity with the direction of the court.
25-13-204. Enforcement of order to pay money. Whenever an order for the payment
of a sum of money is made by a court or judge pursuant to the provisions of this code, it may
be enforced by execution in the same manner as if it were a judgment.
Warrant of Execution
Note: When personal property is to be levied upon and that personal
property is located where “a reasonable expectation of privacy” exists, a
levying officer cannot enter that location without a “Warrant of Execution”.
(4) A sheriff or levying officer may condition service of a writ of execution and levy on
property located in an area other than the judgment debtor's residence upon the judgment
creditor's securing a warrant of execution in accordance with subsection (1) when the
sheriff or levying officer believes the area is subject to a reasonable expectation of privacy.
Note: Once filed with the clerk of district court, the execution statutes for a
Foreign Judgment are the same as the statutes for a domestic judgment with the
notable exception that proceeds must be held by the levying officer for at least
30 days after the notice of filing was mailed to the judgment debtor.
25-9-503. Filing and status of foreign judgments. A copy of any foreign judgment
authenticated in accordance with an act of congress or the statutes of this state may be filed in
the office of the clerk of any district court of this state. The clerk shall treat the foreign
judgment in the same manner as a judgment of a district court of this state. A judgment so
filed has the same effect and is subject to the same procedures, defenses, and proceedings for
reopening, vacating, or staying as a judgment of a district court of this state and may be
enforced or satisfied in like manner.
25-9-504. Notice of filing. (1) At the time of the filing of the foreign judgment, the
judgment creditor or his attorney shall file with the clerk of the court an affidavit setting forth
the name and last-known post-office address of the judgment debtor and the judgment
creditor. The affidavit must also include a statement that the foreign judgment is valid and
enforceable, and the extent to which it has been satisfied.
(2) Promptly upon filing the foreign judgment and affidavit, the judgment creditor or
someone on his behalf shall mail notice of the filing of the judgment and affidavit, attaching a
copy of each to the notice, to the judgment debtor and to his attorney of record, if any, each at
his last-known address, by certified mail, return receipt requested. The notice must include the
name and post-office address of the judgment creditor and the judgment creditor's attorney, if
any, in this state. The judgment creditor shall file with the clerk of the court an affidavit
setting forth the date upon which the notice was mailed.
(3) The proceeds of an execution may not be distributed to the judgment creditor earlier
than 30 days after the date of mailing the notice of filing.
25-13-301. Form and contents of writ. (1) The writ of execution must:
(a) be issued in the name of the state of Montana, sealed with the seal of the court, and
subscribed by the clerk;
(b) be directed to the sheriff or levying officer;
(c) intelligibly refer to the judgment, stating the court and the county where it was entered
and, if it is for money, the amount of money and the amount actually due on the judgment;
and
(d) require the sheriff or levying officer to act substantially as provided in this part.
(2) In executions, the amount of the execution must be computed and stated as near as may
be possible in dollars and cents, rejecting fractions of a cent.
(3) A writ of execution served upon an employer of the judgment debtor must be
accompanied by a document that reasonably describes the exemptions from execution
provided in 25-13-614.
(4) A notice of levy must contain information sufficient to identify the judgment debtor. If
the information is not sufficient to identify the judgment debtor, the writ of execution must be
returned to the sheriff or levying officer. If the writ of execution is returned to the sheriff or
levying officer for lack of sufficient information, the person returning the writ of execution
shall indicate that the information provided was not sufficient to identify the judgment debtor.
• The notice of levy form that follows complies with the notice of levy
requirements put forth in M.C.A. 25-13-301 (3) and (4).
• The notice of levy provides both the formula for calculating the amount
of wages that is exempt from levy in accordance with M.C.A. 25-13-602.
---------------------------------------------------------------------------------------------------------------------------------
Please Take Note that this levy is in effect from today through the Expiration Date of: _DATE__
INSERT EMPLOYERS NAME must garnishee wages, salary, tips, bonus, commissions, contract
funds, etc. of the following employee/s:
Insert the DEFENDANT(s) NAME(s)
25-13-302. Execution against principal debtor before surety. Upon the rendition of
any judgment, if it shall be shown that one or more of the defendants against whom the
judgment is to be rendered are principal debtors and others of the said defendants are sureties
of such principal debtor, the court may order the judgment so to state, and upon the issuance
of an execution upon such judgment, it shall direct the sheriff or levying officer to make the
amount due thereon out of the goods and chattels, lands and tenements of the principal debtor
or debtors or, if sufficient thereof cannot be found within his county to satisfy the same, to
levy and make the same out of the property, personal or real, of the judgment debtor who was
surety.
25-13-304. Execution against property of judgment debtor. If the writ be against the
property of the judgment debtor, it shall require the sheriff or levying officer to satisfy the
judgment, with interest, out of the personal property of such debtor and, if sufficient personal
property cannot be found, out of his real property as provided in 25-13-305.
25-13-305. Execution of lien on real property. If the judgment be a lien upon real
property, the writ shall require the sheriff or levying officer to satisfy the judgment, with
interest, out of the real property belonging to the judgment debtor on the day when the
judgment was docketed or at any time thereafter or, if the execution be issued to a county
other than the one in which the judgment was recovered, on the day when the transcript of the
docket was filed in the office of the clerk of the district court of such county, stating such day,
or any time thereafter.
25-13-308. Execution against person of judgment debtor. If the writ be against the
person of the judgment debtor, it must require the sheriff to arrest such debtor and commit
him to the jail of the county until he pay the judgment, with interest, or be discharged,
according to law.
25-13-401. To whom execution issued. Where the execution is against the property of
the judgment debtor, it may be issued to the sheriff or levying officer of any county in the
state. Where it requires the delivery of real or personal property, it must be issued to the
sheriff or levying officer of the county where the property or some part thereof is situated.
Executions may be issued at the same time to different counties.
25-13-402. How writ executed. (1) (a) The sheriff or levying officer shall, subject to
subsections (6) and (7), execute the writ against the property of the judgment debtor not later
than 120 days after receipt of the writ by:
(i) levying on a sufficient amount of property if there is sufficient property;
(ii) collecting or selling the things in action; and
(iii) selling the other property and paying to the judgment creditor or the judgment
creditor's attorney as much of the proceeds as will satisfy the judgment.
(b) (i) If the third party is a corporation or other legal entity, service must be accomplished
by personally serving the writ upon an officer or supervising employee of the third party or
upon a department or person designated by the third party or by serving the writ by mail, as
provided in subsection (1)(b)(ii).
(ii) Service by mail upon a corporation or other legal entity must be consented to in writing
by the corporation or other legal entity and may be made by mailing a copy of the writ to an
officer or supervising employee of the third party or to a department or person designated by
the third party. Service may be mailed out of state, at the direction of the third party, if the
third party processes garnishments or levies from a location outside the state. If service is by
mail, it must be accompanied by a notice that the officer or employee receiving the writ is
required to forward the writ to the person responsible for processing the levy for the third
party if the officer or employee initially receiving the writ is not the proper party to process
the levy. The writ must be considered served on the date and time that the writ is received by
the officer, supervising employee, or designee of the third party, but not later than 5 business
days after it is mailed.
(c) A levy under subsection (1)(b) is effective when the writ is served by personal service
or by mail as provided in subsection (1)(b)(ii).
(2) Any proceeds in excess of the judgment and accruing costs must be returned to the
judgment debtor unless otherwise directed by the judgment or order of the court. When the
sheriff or levying officer determines that there is more property of the judgment debtor than is
sufficient to satisfy the judgment and accruing costs, the sheriff or levying officer shall levy
only on the part of the property that the judgment debtor may indicate if the property indicated
is sufficient to satisfy the judgment and costs.
(3) With respect to property held by a third party, including but not limited to banks, credit
unions, and other financial institutions and those parties identified in 25-13-306, the third
party shall respond to the levy based on the assets held at the time of levy. Response must be
made within 10 business days following the date of the levy by delivering the assets or
payments to the sheriff or levying officer.
(4) Except for perishable property, the sheriff or levying officer shall hold any property or
money levied upon for 10 days, excluding weekends and holidays, following notification of
execution upon the judgment debtor. After that time, the sheriff or levying officer may sell the
property and pay the money to the judgment creditor.
(5) If the first levy is not sufficient to satisfy the writ, the sheriff or levying officer may
levy, from time to time and as often as necessary, within the 120 days until the judgment is
satisfied or the writ expires.
(6) (a) A levy upon the earnings of a judgment debtor continues in effect for 120 days or
until the judgment is satisfied, whichever occurs first. The levy applies to earnings due on or
after the date of service through the expiration of the writ. Earnings withheld from a judgment
debtor must be remitted to the sheriff or levying officer within 5 days of the day the earnings
are withheld.
(b) The sheriff or levying officer shall clearly mark the expiration date upon all served
copies of the writ and notice.
(c) Except as provided in subsection (8), multiple levies served under this subsection (6)
have priority according to the date and time of service upon the employer.
(d) The return of service on a levy upon the earnings of a judgment debtor is returned in
the same manner provided for in 25-13-404.
(7) A levy upon a state tax refund or any other funds that are due to the judgment debtor
from a Montana state agency continues in effect for 120 days or until the judgment is
satisfied, whichever occurs first. The levy applies to any funds due on or after the date of
service through the expiration of the writ. Payment of funds withheld from a judgment debtor
must be remitted to the sheriff or levying officer within 10 days of the date the funds would
have been sent to the judgment debtor in the normal course of business. Any levy on state
funds is subordinate to the department of revenue's right of offset for delinquent taxes or other
debt as provided in 15-30-149, 15-30-310, 15-31-404, 15-36-315, 15-39-106, 15-39-109, 15-
68-516, 15-70-110, 15-72-113, Title 17, chapter 4, and 39-51-1307.
(8) This section is not intended to supersede any state or federal laws regarding priority
that must be given to certain levies and executions.
25-13-403. Security for costs when property seized. If the sheriff or levying officer
will incur substantial costs in transporting, keeping, or storing the property seized, the party
requesting service of a writ of execution shall provide a bond or other security to pay for all
costs which may be incurred as a result of the service of such writ.
envelope to the officer, agent, or attorney who sent it and deposit it in the post office,
prepaying the postage.
25-13-405. Clerk to record returned execution when levy on real property. If any
real estate be levied upon, the clerk must record the execution and the return thereto at large
and certify the same under his hand as true copies in a book to be called the "execution book",
which must be indexed, with the names of the plaintiffs and defendants in execution
alphabetically arranged, and kept open at all times during office hours for the inspection of the
public, without charge. It is evidence of the contents of the originals whenever they or any
part thereof may be destroyed or mutilated.
25-13-501. What property subject to execution. All goods, chattels, moneys, and other
property, both real and personal, or any interest therein of the judgment debtor, not exempt by
law, and all property and rights of property seized and held under attachment in the action are
liable to execution. Shares and interest in any corporation or company, debts and credits, and
all other property, both real and personal, or any interest in either real or personal property,
and all other property not capable of manual delivery may be attached on execution, in like
manner as upon writs of attachment. Gold dust must be returned by the officer as so much
money collected, at its current value, without exposing the same to sale. Until a levy, property
is not affected by the execution.
25-13-502. Debts owed to judgment debtor. After the issuing of an execution against
property and before its return, any person indebted to the judgment debtor may pay to the
sheriff the amount of his debt or so much thereof as may be necessary to satisfy the execution;
and the sheriff's receipt is sufficient discharge for the amount so paid.
commissioners, the city clerk or mayor of a municipal corporation, or the clerk of the board of
school trustees or chairman of such board, as the case may be.
25-13-506. Duty of secured party. (1) The secured party under any security agreement
of record shall, upon 15 days' notice in writing served upon him in person by any creditor of
the debtor seeking to satisfy a judgment of such creditor against the debtor, be required to
make and file in the office of the county clerk and recorder or other filing officer with whom
the financing statement covering the security agreement is filed an affidavit showing the
amount of the indebtedness then actually due and owing to the secured party; and such
affidavit shall state the amount of the original obligation for which the security agreement was
given as security, all additional advancement of money or property on the principal obligation
since the date of the execution of the security agreement, all payments of whatsoever kind,
whether on principal or interest, made by the debtor to the date of the execution of such
affidavit by the secured party, and the balance then remaining due and unpaid to the secured
party. If within 15 days from the service of any such demand in writing on the secured party
by any creditor of the debtor, the secured party shall fail, refuse, or neglect to file the affidavit
herein required, the security agreement shall be of no force or effect as against such creditor
upon the seizure of any such personal property on execution.
(2) In the event the amount shown to be due is paid to the county treasurer or to a filing
officer, as aforesaid, or to the secured party in satisfaction of the security agreement by any
execution creditor against the debtor, the secured party shall be required to surrender to the
county treasurer or such filing officer the security agreement and any note or other evidence
of indebtedness secured thereby, which security agreement or other evidence of indebtedness
shall be delivered by the secured party, county treasurer, or filing officer to the execution
creditor.
B. TIME. The party in whose favor judgment is entered may request a writ of execution for
its enforcement against the personal property of the judgment debtor. At any time within 10
years from the entry of judgment, the justice of the peace or city judge who entered the
judgment or the successor in office or the clerk shall issue the writ upon request.
______ )
______ ) Case No. ......
Plaintiff )
______ vs. ) WRIT OF EXECUTION
______ )
Defendant
WHEREAS, on the ...... day of ............, 20...., .................... recovered a judgment in the said
Justice/City Court against .................... as follows:
Together with all costs of execution (and) (or) for personal property described as follows:
.................................
.……………………
(Attach description if necessary)
NOW, you, the sheriff, constable, or levying officer, are hereby required to make this sum
due on the judgment or damages, with interest, costs, and accruing costs, to satisfy the
judgment out of the PERSONAL PROPERTY of the debtor NOT EXEMPT FROM
EXECUTION on the day on which the judgment was docketed in the county, or at any time
hereafter, and return this writ not less than 10 days nor more than 120 days after the date of
receipt.
Given under my hand this ...... day of ............, 20.....
..........................
Justice of the Peace or Clerk
...........................
City Judge or Clerk.
D. RETURN OF EXECUTION. The writ of execution shall remain in effect for 120 days
from the date of receipt by the sheriff or levying officer and may be served multiple times
during that period at the direction of the judgment creditor. The execution must be returned to
the court:
(1) not less than 10 days nor more than one-hundred twenty (120) days after receipt of the
recovery by the sheriff or levying officer;
(2) if the judgment creditor has requested the return of the writ.
(3) at the written direction of the officer, agent, or attorney who sent the writ, the sheriff or
levying officer may return the writ to the requesting party.
25-13-610. Tracing exempt personal property. (1) If money or other property exempt
under 25-13-608 and 25-13-609 has been sold or has been lost, damaged, or destroyed and the
judgment debtor has been indemnified for it, he is entitled for 6 months to an exemption of
proceeds that are traceable (for example, in a bank or savings account).
(2) Earnings exempt under 25-13-614 remain exempt for 45 days after receipt by and while
in the possession of the judgment debtor in a form into which the exempt earnings are
traceable (for example, in a bank or savings account).
(3) Proceeds are traceable under this section by application of the principles of first-in first-
out, last-in first-out, or any other reasonable basis for tracing selected by the judgment debtor.
(a) all necessary firefighting equipment and facilities of a governmental fire agency
organized under Title 7, chapter 33;
(b) all arms, uniforms, and accouterments required by law to be kept by any person and
one gun to be selected by the debtor;
(c) all courthouses, jails, public offices, and buildings, lots, grounds, and personal property
and the fixtures, furniture, books, papers, and appurtenances belonging and pertaining to the
courthouse, jail, and public offices belonging to any county of this state; and
(d) all cemeteries, public squares, parks, and places, public buildings, town halls, public
markets, buildings for the use of fire departments and military organizations, and the lots and
grounds owned or held by any town or incorporated city or dedicated by a city or town to
health, ornament, or public use or for the use of any fire or military company organized under
the laws of the state.
(2) The property listed in this section is not exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of a mortgage lien on the property,
and a person who is not a resident of this state is not entitled to these exemptions.
25-13-614. Earnings of judgment debtor. (1) Earnings of a judgment debtor that are
not subject to garnishment as provided in this section are exempt.
(2) Except as provided in subsections (3) and (4), the maximum part of the aggregate
disposable earnings of a judgment debtor for any workweek that is subjected to garnishment
may not exceed the lesser of:
(a) the amount by which his disposable earnings for the week exceed 30 times the federal
minimum hourly wage in effect at the time the earnings are payable; or
(b) 25% of his disposable earnings for that week.
(3) The restrictions of subsection (2) do not apply in the case of an order or judgment for
the maintenance or support of any person, issued by a court of competent jurisdiction or
pursuant to an administrative procedure that is established by state law, affords substantial due
process, and is subject to judicial review.
(4) (a) The maximum part of the aggregate disposable earnings of a judgment debtor for
any workweek that is subject to garnishment to enforce an order described in subsection (3)
may not exceed:
(i) 50% of the judgment debtor's disposable earnings for that week if he is supporting his
spouse or dependent child (other than a spouse or child for whom the order is issued); or
(ii) 60% of the judgment debtor's disposable earnings for that week if he is not supporting a
spouse or dependent child described in subsection (4)(a)(i).
(b) However, the amount stated in subsection (4)(a)(i) may be 55% and the amount stated
in subsection (4)(a)(ii) may be 65% if such earnings are being garnished to enforce an order
for maintenance or support for a period prior to the 12-week period that ends with the
beginning of such workweek.
(5) For the purposes of this section, the definitions of earnings, disposable earnings, and
garnishment are as set forth in 15 U.S.C. 1672.
25-13-615. Homestead. The homestead of a judgment debtor exempt from execution is
provided for in Title 70, chapter 32.
25-13-701. Notice of sale on execution. (1) Before the sale of the property on
execution, notice must be given as follows:
(a) in case of perishable property, by posting written notice of the time and place of the
sale in three public places in the county where the sale is to take place for a time that is
reasonable considering the character and condition of the property;
(b) in case of other personal property, by posting a similar notice in three public places in
the county where the sale is to take place for not less than 5 days or more than 10 days and by
publishing a copy of the notice at least 1 week before the sale in a newspaper of general
circulation published in the county if there is one;
(c) in case of real property, by posting a similar notice, particularly describing the property,
for 20 days in three public places in the county where the property is situated and also where
the property is to be sold, which may be either at the courthouse or on the premises, and
publishing a copy of the notice once a week for the same period in some newspaper published
in the county if there is one. The notice must be substantially as follows:
SHERIFF'S SALE
............, Plaintiff,
vs.
............, Defendant,
To be sold at sheriff's sale on the .... day of ...., 20..., at ..............
(Here insert brief description of property.)
Signed .............., Sheriff
(2) Any sheriff publishing a notice that is not in accordance with the form set forth in
subsection (1)(c) and that costs more than that notice is not entitled to any costs for
publication of the notice but is personally liable for the payment of the publication.
25-13-703. Postponement of sale. Good cause therefor appearing, the officer holding
the execution may postpone any sale noticed thereunder for a period not exceeding 15 days,
by public proclamation at the time and place fixed in the notice of sale and by posting a notice
in three public places in the township where the property has previously been noticed to be
sold.
25-13-704. Conduct of sale. (1) All sales of property under execution must be made at
auction to the highest bidder, between the hours of 9 a.m. and 5 p.m. After sufficient property
has been sold to satisfy the execution, no more can be sold. Neither the officer holding the
execution nor his deputy can become a purchaser or be interested in any purchase at such sale.
(2) When the sale is of personal property capable of manual delivery, it must be within
view of those who attend the sale and be sold in such parcels as are likely to bring the highest
price; and when the sale is of real property consisting of several known lots or parcels, they
must be sold separately, or when a portion of such real property is claimed by a third person
and he requires it to be sold separately, such portion must be thus sold. The judgment debtor,
if present at the sale, may also direct the order in which property, real or personal, shall be
sold when such property consists of several known lots or parcels or of articles which can be
sold to advantage separately, and the sheriff must follow such directions.
25-13-707. Liability of officer after resale. Sections 25-13-705 and 25-13-706 must
not be construed to make the officer liable for any more than the amount bid by the second or
subsequent purchaser and the amount collected from the purchaser refusing to pay.
officer making the sale shall deliver to the purchaser the property and, if desired, execute and
deliver to the purchaser a certificate of sale. The certificate conveys to the purchaser all rights
that the debtor had in the property on the day the execution or attachment was levied.
25-13-710. Real property -- what interest transferred. Upon a sale of real property,
the purchaser is substituted to and acquires the right, title, interest, and claim of the judgment
debtor thereto; and when the estate is less than a leasehold of 2 years' unexpired term, the sale
is absolute. In all other cases, the property is subject to redemption, as provided in part 8 of
this chapter.
25-13-711. Real property -- certificate of sale. (1) Upon a sale of real property, the
officer must give to the purchaser a certificate of sale, containing:
(a) a particular description of the property sold;
(b) the price bid for each distinct lot or parcel;
(c) the whole price paid;
(d) when subject to redemption, a statement to that effect. (2) A duplicate of such
certificate must be filed by the officer in the office of the county clerk.
25-13-713. Procedure when sale invalidated, revival of judgment. (1) If the purchaser
of real property sold on execution or his successor in interest be evicted therefrom in
consequence of irregularities in the proceedings concerning the sale or of the reversal or
discharge of the judgment, he may recover the price paid, with interest, from the judgment
creditor.
(2) If the purchaser of property at sheriff's sale or his successor in interest fail to recover
possession in consequence of irregularity in the proceedings concerning the sale or because
the property sold was not subject to execution and sale, the court having jurisdiction thereof
shall, on petition of such party in interest or his attorney, revive the original judgment for the
amount paid by such purchaser at the sale, with interest thereon from the time of payment at
the same rate that the original judgment bore. When so revived, the said judgment shall have
the same effect as an original judgment of the said court of that date, bearing interest as
aforesaid; and any other or after-acquired property, rents, issues, or profits of the said debtor
shall be liable to levy and sale under execution in satisfaction of such debt, but no property of
such debtor sold bona fide before the filing of such petition shall be subject to the lien of said
judgment. The notice of the filing of such petition shall be made by filing a notice thereof in
the office of the county clerk where such property may be situated, and said judgment shall be
revived in the name of the original plaintiff or plaintiffs for the use of said petitioner, the party
in interest.
(2) When a stockholder redeems, any other stockholder or stockholders may, at any time
after such redemption and within 60 days after the expiration of 1 year from the date of sale,
contribute to the redemption by paying to the redeeming stockholder or depositing with the
sheriff for his benefit a sum which bears the same proportion to the amount necessary to
redeem which the number of shares owned by such contributing stockholder or stockholders
bears to the number of shares of such corporation outstanding, with interest on such sum from
the date of redemption until the date of contribution at the rate established by the judgment in
the action that led to the execution sale, together with a like proportion of the taxes or
assessments paid by such redeeming stockholder, with like interest thereon; and if the
corporation does not redeem the property within the time and in the manner and form as
aforesaid, the said redeeming and contributing stockholders shall be entitled to receive a
sheriff's deed for such property so redeemed and shall succeed to the said property as tenants
in common in such proportions, respectively, as they shall respectively pay or contribute to
such redemption as aforesaid. The redeeming or contributing stockholder shall, in all cases
when applying to redeem or contribute as aforesaid, present an affidavit setting forth the
number of shares of stock owned by him and, to the best of his knowledge, the number of
shares of stock of the corporation outstanding.
25-13-806. Notice of redemption, liens, and taxes and assessments paid. Written
notice of redemption must be given to the sheriff and a duplicate filed with the county clerk,
and if any taxes or assessments are paid by the redemptioner or if he has or acquired any liens
other than that upon which the redemption was made, notice thereof must in like manner be
given to the sheriff and filed with the county clerk, and if such notice be not filed, the property
may be redeemed without paying such tax, assessments, or lien.
25-13-811. Who to execute conveyance. In all cases when, under the provisions of this
chapter, a purchaser of property at execution sale shall be entitled to a conveyance of the
same, such conveyance shall be executed to him by the officer who made the sale if he still be
in office, but in the case the officer who made such sale is not in office at the time the
purchaser may be entitled to such conveyance, then the conveyance shall be executed by his
successor in office.
25-35-502. Jurisdiction. (1) The small claims court has jurisdiction over all actions for
the recovery of money or specific personal property when the amount claimed does not
exceed $3,000, exclusive of costs, and the defendant can be served within the county where
the action is commenced.
(2) The small claims court has jurisdiction over an interpleader under 25-35-508 in which
the amount claimed does not exceed $3,000.
Legal Documents
&
Legal Terms Defined
The most common affidavit a process server would see is one he or she signs, such
as an Affidavit for Service, especially services originating from out of state. Because
the Affidavit of Service is sworn to by the process server, it should be completed,
sworn to and signed in the presence of a Notary Public.
Complaint & Order – Common terms given to a small claims filing in which the Small
Claims Court sets a date and time for the initial appearance of both parties in an
action.
Certificate of Service – A term given to the return of service filed with the court by a
sheriff or a registered process server in which the written statement and signature of
the sheriff or registered process server that does not require a notary.
Notice to Pay Rent or Quit -A notice to a tenant of a rental property, informing him
or her that the rent, or a portion of the rent, is due. Service on the tenant directs the
tenant in writing that the rent is due, usually within three days after the date of
service, and that if the rent is not paid, the tenant is requested to "quit" (leave) the
premises.
If the rent is not paid in the days specified in the notice, the owner of the premises
may file a complaint for "Unlawful Detainer."
The following are variations of this type of notice: Notice to Payor Quit, Notice to Pay
Rent or Surrender Possession, Notice to Pay Rent or Surrender Possession of the
Premises. The title of the notice may specify the days the notice is giving, such as
Three Day Notice to Pay Rent or Quit.
There are other types of notices to tenants that satisfy a variety of alternative legal
requirements. A Notice to Cure or Quit would give the tenant notice that he or she is
in breach of a covenant, and if the tenant does not cure the breach, he or she will be
requested to leave.
A Notice to Perform or Quit would give the tenant notice to perform an act required
under the rental agreement. For instance, the agreement may require that the tenant
give the landlord evidence of premises liability insurance.
A Notice to Inspect the Premises gives the tenant notice that the landlord will be
entering and inspecting the premises on a particular date and time.
Notice to Quit - This notice is given to tenants to terminate the tenancy of the
premises. The notice states that at the end of a specified date, usually thirty days, the
tenancy is terminated and directs that the tenant must move out. Alternative titles of
this document are Notice to Terminate Tenancy or Termination Notice, or Thirty Day
Notice to Quit.
Order to Show Cause -An order [...] to appear as directed, and present to the court
such reasons or considerations as one has to offer why a particular order should not
be confirmed, take effect or be executed. [Black's Law Dictionary].
The order customarily does not hold the person in contempt if he or she does not
appear at court to "show cause," but disobedience of the directives in the order could
bring the person into contempt.
A petition for dissolution of marriage is the initial document filed in a divorce action
and is similar to a complaint in a civil action
Proof of Service - A declaration signed under penalty of by the process server or the
person who served a document stating the date, time and manner of service, and the
documents served. A proof of service also may be in the form of an affidavit, sworn to
before a Notary Public.
Signed – Includes any symbol executed or adopted by a party with present intention
to authenticate a writing. U.C.C. 1-201(43) [Black Law Dictionary]
The witness is compelled to attend or respond to the subpoena on the date and time
stated and may be subject to a citation for contempt if he or she does not appear.
Subpoenas may be issued by a clerk of the court, a judge, or by an attorney of
record.
Subpoena Duces Tecum -A command to appear at a certain time and place to give
testimony as a witness. Duces Tecum is Latin and roughly defined as “to bring with”,
indicating that the subpoena requires the witness to bring or produce documents
Summons - A writ of process [issued by the clerk of the court and served on the
defendant], notify[ing] the person named that an action has been commenced against
him in the court from where the process issues, and that he is required to appear [...]
and answer the complaint in such action. [Black's Law Dictionary.]
Writ - A writ is a written order of a judge requiring specific action by the person or
entity to whom the writ is directed.
A writ of attachment is a document issued under the authority of a court order (Right
to Attach Order), directing the levying officer to serve and attach and encumber
assets of the defendant to ensure that the assets will be available if the plaintiff
prevails at trial. A variety of methods of attachment are available to the plaintiff and
may involve registered process servers.
Writ of Execution - A writ to put in force the judgment or decree of a court. [Black's
Law Dictionary.]
A writ of execution is a document issued directing the levying office to serve and take
the assets of the judgment debtor. There are a variety of methods of levy available to
a judgment creditor and may involve registered process servers.
Suggestions
for
Process Servers
• Check the defendant's name on the papers before you go to the door.
Have them hidden if possible. If they are hidden, take them out slowly
when serving them, especially if they are inside a coat.
Following Service
• Date, time, place of service, description of the person served,
statements made, events occurring at the time of service, other
relevant factors. Record all relevant information on the service
instruction sheet. Write your full name and registration number on all
records.
• Give status of the service promptly. If the services relates to a
domestic violence or violent situation, notify the appropriate party or
parties immediately, including the appropriate law enforcement
agency.
• Prepare, sign and deliver a proof of service promptly. If a special