BLET: 33G
TITLE: CIVIL PROCESS
Lesson Purpose: To prepare students to carry out the basic civil process duties expected of recently-graduated deputy sheriffs.
Training Objectives: At the end of this block of instruction the student will be able to achieve the following objectives in accordancewith the information presented during the instructionalperiod:
- Explain how to achieve valid and binding serviceof a civil summons on the following legal entities:
a)Natural person
b)A corporation, partnership, sole proprietorship, an “LLC” or “PLLC,” anunincorporated association
c)City or county government
- Explain how to serve a magistrate summons witha complaint in summary ejectment (evictionaction).
- Accurately complete a valid return of service on acivil summons with its complaint and amagistrate summons with a complaint insummary ejectment.
- Explain proper service of subpoenas in thefollowing situations:
a) For a witness to testify in person
b)To produce documents
- Explain when an officer has the authority to serve an “Order to Pick Up Children” and a domestic violence protective order.
- Explain the purpose of the followingprejudgment remedies:
a)Attachment
b)Garnishment
c)Claim and Delivery
- Explain the purpose of an execution (for money) and outline the basic process.
- Explain how to serve the following executions:
a)Writ of Possession for Real Property
b) Writ of Possession for Personal Property
Hours: / Twenty-four (24)Instructional Method: / Lecture/Conference/Demonstration
Training Aids: / Handouts
Video: Civil Process, NCJA (2001)
References: / North Carolina Criminal Law and Procedure.
Charlottesville, VA: The LexisNexis Group, 2004.
Case opinions from the North Carolina Supreme Courtand North Carolina Court of Appeals (cited in outline).
Prepared By / M. Kevin Smith, Esq.
Agency Legal Specialist II
N.C. JusticeAcademy
Joan Brannon, Esq.
Institute of Government
University of North Carolina at Chapel Hill
Tim Mabe
Guilford County Sheriff’s Office
Mark Pegram
Rockingham County Sheriff’s Office
Ricky Storey
Dare CountySheriff’s Office
Date Prepared: / January 1998
Reviewed By: / M. KevinSmithAgencyLegal Specialist North Carolina JusticeAcademy
Date Reviewed: / January 1999
Revised By: / John Aldridge
Assistant Attorney
GeneralLaw Enforcement Liaison Section
NC Department of Justice
Date Revised: / March 1999
July 1999
Revised By: / Kathy Moore Agency Legal Specialist
North Carolina JusticeAcademy
Date Revised: / January 2000
Reviewed By: / Kathy Moore
Date Reviewed: / November 2000
Revised By: / Mark Pegram
Sheriffs’ Standards Division
Jon Blum
Instructor/Coordinator
North Carolina JusticeAcademy
Date Revised: / November 2001
Revised By: / Mark Pegram Sheriffs’ Standards Division
Date Revised: / May 2002
Revised By: / Mark Pegram
Major Lucy Zastrow
Durham County Sheriff’s Office
Date Revised: / October 2002
Revised By: / Major Lucy Zastrow
Peggy Schaefer Training Manager North Carolina JusticeAcademy
Date Revised: / April 2003
Revised By: / Eric Pope Instructor/Coordinator
North Carolina JusticeAcademy
Date Revised: / August 2003
Revised By: / Robert B. Yow
BLET Curriculum Coordinator
North Carolina JusticeAcademy
Date Revised: / July 2005
January 2006
TITLE: CIVIL PROCESS - INSTRUCTOR NOTES
- Delivering instructors should have extensive experience in serving civil papers.
- Several Administrative Office of the Court (AOC) forms are used in this lesson. Instructors must and can obtain these forms by going to Students must be givencopies of each form as indicated.
- Included as an optional part of BLET Civil Process are 20 scenarios.Instructors may use these exercises several different ways: role playing,work group class projects, homework or class discussions. The student copiesof the scenarios have the “issue” and “answer” areas left blank and instructors may use these copies where applicable.
Instructors are strongly encouraged to tell students to come up with as many solutions as possible for each scenario. Part of the discussion will help themdevelop valuable problem-solving skills.
These scenarios may also be used in other lesson plans such as “Elements ofCriminal Law,” “Juvenile Laws and Procedures,” “Ethics for Professional Law Enforcement,” “Dealing with Victims and the Public” or “Patrol Techniques.”
- To promote and facilitate law enforcement professionalism, three (3) ethical dilemmas are listed below for classroom discussion. At their discretion, instructors must provide students with each ethical dilemma listed below.Sometime during the lecture instructors should “set the stage” for the dilemma prior to taking a break. Instructors are encouraged to develop additional dilemmas as needed.
a)You have subpoenas for another law enforcement agency in yourjurisdiction. You go to the desk officer and he tells you his agency’s policy is for you to leave the copies with him and he will serve themfor you to his officers. Then you are to mark the subpoenas aspersonal service. What should be done?
b)You serve a magistrate summons with a complaint in summaryejectment, which has a court date on it. The time period for servingthe summons before the court date is running out. The Clerk of Superior Court calls you by phone to see if the paper is served yet,because the plaintiff is asking him. You tell him it has not been served. He tells you to change the court date on it by adding three additional days to the date, and to leave the time of court as it is.
What should you do?
c)In a hurry to deliver some civil papers, a good friend of yours who is a deputy gives you three civil processes to be served. You are a policeofficer for the town in which the defendants live. The deputy tells youto just sign his name to the papers and he will pick them up later.What will you do?
TITLE: CIVIL PROCESS
I.Introduction
NOTE: Show slide, "Civil Process."
A.Opening Statement
Serving civil process is a major function of the office of sheriff.Traditionally, the sheriff and his or her deputies perform civil process duties. Other law enforcement officers do not.
By statute, municipal officers are authorities to "serve all civilprocess" directed to them. [G.S. 160A-285.] Because this authority isseldom used, this outline will, for simplicity, refer to "deputy sheriffs."
Civil process is a term that covers the service of pleadings, motions,orders, and other papers on a party in a civil case and the service ofwrits to enforce judgments entered by a court.
This block of instruction is not designed to fully address all facets ofcivil process. Instead, emphasis is placed on preparing students to serve basic civil process (summonses and subpoenas). As a justiceofficer, it is extremely important to have certain basic knowledge of civil process. Citizens who want to know the process of having a tenant evicted and how long the process will take will confront you at times. You may respond to a dispute and the complainant may wantyou to act on his complaint. It may be “civil” in nature and your basicknowledge of civil process will aid you in determining the necessarysteps to take to resolve the situation. Having such knowledge willmake you a well diverse justice officer.
B.Training Objectives
NOTE: Show slide, "Training Objectives."
C.Reasons
Serving civil process in the proper manner is an extremely important function of the office of sheriff. Without proper service of summonsand effective enforcement of court orders, the civil court system would cease to function. On a more immediate level, where a deputy fails toproperly execute civil process duties, the sheriff may be held liable.
This affects the public’s view of the effectiveness of the Office ofSheriff.
II.Body
A.Serving Summonses
NOTE: Show slide, "Serving Summonses."
1.Beginning a lawsuit
a)There are generally two parties to a civillawsuit -plaintiff and defendant. The plaintiff is theparty bringing the lawsuit and the defendant is theperson or entity the plaintiff is suing. A civil action begins when the plaintiff files a complaint with theclerk of superior court.
b)Upon the filing of the complaint, the clerk issues asummons to the defendant. Under the law, the summons must be issued within five days after thecomplaint is filed; however, as a practical matter, it isalmost always issued immediately after the complaint isfiled. In fact, in most counties the plaintiff must fill outthe summons and give it to the clerk when filing thecomplaint.
(1)What is a complaint? The complaint can bethought of as the lawsuit itself-that is, the document prepared by the plaintiff that indicateswho he is suing, why, and for what legal“remedy.” The complaint does not need to beexcessively detailed, but merely needs to give thedefendant a brief statement of the allegationsagainst him, and the legal relief or recovery(remedy) the plaintiff is seeking. For example, acomplaint filed by John Doe against Jane Roemay state that Ms. Roe owes Mr. Doe $250 for astereo she purchased from him.
Complaints come in different formats. Small claims complaints are fill-in-the-blank papers adefendant can get when he goes to issue the papers. Complaints that go with civil summonsare generally typed on blank sheets of paper byattorneys from their offices and have manydifferent formats, depending on what the attorney uses. All complaints must have certainpieces of information in them to make them validly issued and “usable” to give courtjurisdiction to hear the cases.
(2)The summons indicates to the defendant what steps he or she must take next in response to thecomplaint. Valid service of the summons givesthe court jurisdiction over the defendant.
(3)What makes this country different from mostother countries in the world is that our peopleare “free.” By being a citizen of this country, we enjoy the privileges and the rights of not beingborn under any type of government jurisdiction.In order for the government to have the right totry us in civil or criminal court, to enforce ajudgment or seize our property, the governmentmust have jurisdiction over us. This is accomplished by “serving” us with “notice” ofwhat is going to happen. Simply, thegovernment has to tell us what they are doing; itis our Fifth Amendment right of “due process.”
Example: When an officer arrests a citizen, the officer must TELL the citizen, “You are under arrest for . . ..” Those words give the citizennotice of what the branch of government theofficer represents is going to do to him; which is charge him with an offense. Those words givethe branch of government the authority to detainthe citizen, force him to go to a detention facility to be processed, tells the citizen when to go tocourt and what he needs to do to get out of thefacility. The whole idea is to inform the citizen of what is going on. The delivery of the informationis essential for due process in this country.
Example: When an officer delivers a copy of asummons and a complaint to a person, bydelivering the information, the judicial districtissuing the summons has the authority toproceed with that particular case with those parties to that case. The delivery of informationis the court’s way of saying to the defendant,“You have been told about the case.” That is one of the foremost issues our founding fathers hadfor coming to this county. They didn’t like thegovernment of their homeland county doingthings to them without them being told first sothey would have the opportunity to defendthemselves. That is what “due process” is allabout.
There are two types of jurisdiction this lessonplan covers. One is called “in personam”jurisdiction and the other is “in rem” jurisdiction.“In personam” means that there is jurisdictioncreated over the person. “In rem” jurisdictionmeans there is jurisdiction over the “thing” or inthis case, property.
Depending on the type of paper the officer ishandling, the court may need either type ofjurisdiction or both. That is why different typesof papers must be served in specific ways—tocreate either “in personam” jurisdiction or “inrem” jurisdiction for the courts to proceed with cases.
2.Types of summonses
The several types of summonses used to begin civil proceedingsare listed below in the order of their frequency of use. With increased availability of computer software that allows users tocreate their own documents, there has been an increase in attorneys generating both civil and criminal documents within their law offices rather than using the Administrative Office of the Court (AOC) forms provided by the state. Upon receipt forservice of such self-generated forms, law enforcement officersshould be certain that the forms are proper and valid on theirface before service is attempted. If you are required to handleand attempt service on self-generated forms on a routine basis,please keep the most current AOC forms on file as reference.Service is invalid if the form is itself not valid on its face and civil liability for you and your office is a possibility.
NOTE: Show slide, "Types of Summonses." Instructors must provide students with copies of AOC forms which can be obtained at ww.aoc.state.nc.us/www/public/html/forms.html
Student Note: Copies of AOC forms are available at
a)Magistrates summons (AOC-CVM-100)
(1)This summons is issued when a plaintiff files acomplaint to be heard in small claims court by amagistrate. There are three types of complaintsthis court has jurisdiction to handle. They are:civil cases for $5,000 or less in which the plaintiffseeks money, possession of personal property, or summary ejectment.
(2)The summons tells the defendant that the next step to take to defend himself or herself is tocome to the trial at the date, time, and placeindicated on the summons.
b)Civil summons (AOC-CV-100)
(1)This summons is issued when a plaintiff files acomplaint to begin a civil action in district orsuperior court. (Any civil case, including othersfor breach of contract, automobile negligencecases, medical malpractice; family law matterssuch as divorce, child support, child custody;injunctions; and other civil matters.)
(2)The summons tells the defendant that the next step to take to defend himself (or herself) is to file a written “answer” to the lawsuit with the Clerk of Superior Court and the time restrictionsfor doing so.
(a)An answer is a response to the plaintiff’s complaint. In it the defendant states what his side of the issues are the plaintiff claims.
(b)If a defendant fails to file an answer within the appropriate time, a defaultjudgment may be entered, which meansthat a judgment is in favor of the plaintifffor the amount the plaintiff sought in thecomplaint will be entered “automatically” without a trial.
c)Special proceedings summons (AOC-SP-100)
(1)This summons is issued when a party initiates aspecial proceeding. A special proceeding is heardinitially by the clerk. It includes such proceedings as adoptions, adjudications ofincompetence, name changes, partitions, andproceedings to sell property belonging to adecedent’s estate or incompetent’s estate.
(2)In a special proceeding, the plaintiff is called apetitioner, the defendant is called a respondent,and the complaint is called a petition or amotion.
(3)The summons tells the defendant that the next step to take is to file a written answer with theclerk within 10 days.
(4)The majority of special proceeding summons thatdeputy sheriffs serve are “Notice of Foreclosure.”Unlike a summons in summary ejectments, the “Notice of Foreclosure” involves a mortgage ordeed of trust against real property.
(a)The “Notice of Foreclosure’ specifies atime and date for a hearing before theclerk of court. Service must be ten (10)days prior to the hearing date.
(b)In some cases the respondent/defendantcannot be located within your county. In such cases “posting” the “Notice of Foreclosure” on the property must make service. Posting the “Notice” requires atleast twenty (20) days prior to the hearingdate.
The action of a foreclosure is for the court to take away possession of the real property from theowners and return possession and ownershipback to the bank or mortgage holder. Servingthe foreclosure papers in person gives the court“in personam” jurisdiction to do that. Posting thepapers without personally serving the papers onthe defendants gives the court “in rem”jurisdiction to turn the property back to themortgage holder even though the defendantswere not personally served.
d)Juvenile summons (AOC-J-340, J-142)
(1)Child is a suspect
The juvenile summons, AOC-J-340, is issued when a juvenile proceeding is initiated against ajuvenile for delinquency (which means thejuvenile is alleged to have committed an act thatwould be a crime if he or she were an adult) orfor being undisciplined (out of the control of theparent).
The summons orders the juvenile to appear at ahearing at a specified time, date, and place todetermine if he or she is delinquent orundisciplined, what disposition is to be made,and orders the parent to appear for determination of whether the parent should berequired to pay for the attorney appointed to represent the juvenile.
(2)Child is a victim
The juvenile summons, AOC-J-142, is issued when a juvenile proceeding is initiated because ajuvenile is alleged to be abused or neglected.
The summons orders the juvenile to appear at ahearing at a specified time, date, and location todetermine if he or she is abused or neglected,what disposition is to be made, and orders theparent to appear for determination of whether the parent should be required to pay for theattorney appointed to represent the juvenile.
(3)Along with these juvenile summonses, a juvenilepetition is served. The juvenile petition isequivalent to a complaint in other civil cases.
e)Summons in proceeding to terminate parental rights (AOC-J-208)
(1)This summons is issued when a proceeding to terminate a parent’s rights with regard to his orher minor child is begun.
(2)The summons tells the parent (who is termed the “respondent”) that he or she must file an answerto the petition within 30 days with the clerk orparental rights may be terminated. Also, it indicates that the parent will be notified by theclerk of the date, time, and place of the hearing, whether or not an answer is filed.
(3)A petition is also served with this summons.
(4)To legally serve these papers requires delivery tothe juvenile or a responsible party, such as aguardian.
3.What to serve, who can serve
NOTE: Show slide, "What To Serve? Who Can Serve?"
a)In each of the cases mentioned, a copy of the complaint(or petition) and of the summons must be served on eachdefendant. Without proper service on the defendant,the court does not have jurisdiction over the defendantand the case cannot proceed. If the deputy does notproperly serve the complaint and summons or if thedeputy’s return does not properly reflect how the deputymade the return, it is possible that the plaintiff will losethe chance to ever bring a civil lawsuit (see discussion of “statute of limitations” below). In such a case, the plaintiff may seek to hold the sheriff liable for the failure to make proper service or a proper return. For these reasons, it is extremely important that a deputy strictly follow the law in serving a summons and payparticular attention to the return that is made.
b)A complaint and summons may be served by the sheriffor the sheriff’s deputies. If the sheriff returns the complaint and summons unserved, the second orsubsequent method at service may be made by thesheriff or the sherif’s deputies or by a private (civilian)process server that the plaintiff hires (except that a private process server cannot serve a complaint in summary ejectment and its accompanying summons).
Civil papers may be divided into “enforceable” and “non-enforceable” writs. A writ is a generic term used tomean “a court-issued document.” Non-enforceable writ means generally that the only thing the officer needs todo is to deliver copies of the papers to the defendant bya legal means. An enforceable writ usually requires theofficer to “do” something like seize personal property or put a lien on real property, but requires of the officermore than just hand delivering copies of a process.