Civil Process
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 accordance
with the information presented during the instructional
period:
1.
Explain how to achieve valid and binding service
of a civil summons on the following legal entities:
a)
Natural person
b)
A corporation, partnership, sole
proprietorship, an “LLC” or “PLLC,”
an unincorporated association
c)
City or county government
2.
Explain how to serve a magistrate summons
with a complaint in summary ejectment (eviction
action).
3.
Accurately complete a valid return of service on a
civil summons with its complaint and a
magistrate summons with a complaint in
summary ejectment.
4.
Explain proper service of subpoenas in the
following situations:
a)
For a witness to testify in person
b)
To produce documents
5.
Explain when an officer has the authority to
serve an “Order to Pick Up Children” and a
domestic violence protective order.
6.
Explain the purpose of the following
prejudgment remedies:
a)
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b)
Garnishment
c)
Claim and Delivery
7.
Explain the purpose of an execution (for money)
and outline the basic process.
8.
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. Justice Academy
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 County Sheriff’s Office
Date Prepared:
January 1998
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Reviewed By:
Date Reviewed:
M. Kevin Smith Agency Legal Specialist North
Carolina Justice Academy
January 1999
Revised By:
John Aldridge
Assistant Attorney
General Law Enforcement Liaison Section
NC Department of Justice
Date Revised:
March 1999
July 1999
Revised By:
Kathy Moore Agency Legal Specialist
North Carolina Justice Academy
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 Justice Academy
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
Carolina Justice Academy
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Civil Process
Date Revised:
April 2003
Revised By:
Eric Pope Instructor/Coordinator
North Carolina Justice Academy
Date Revised:
August 2003
Revised By:
Robert B. Yow
BLET Curriculum Coordinator
North Carolina Justice Academy
Date Revised:
July 2005
January 2006
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TITLE: CIVIL PROCESS - INSTRUCTOR NOTES
1. Delivering instructors should have extensive experience in serving civil papers.
2. Several Administrative Office of the Court (AOC) forms are used in this lesson.
Instructors must and can obtain these forms by going
towww.aoc.state.nc.us/www/public/html/forms.html. Students must be given
copies of each form as indicated.
3. 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 copies of 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 them
develop valuable problem-solving skills.
These scenarios may also be used in other lesson plans such as “Elements of
Criminal Law,” “Juvenile Laws and Procedures,” “Ethics for Professional Law
Enforcement,” “Dealing with Victims and the Public” or “Patrol Techniques.”
4. 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 your
jurisdiction. 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 them for
you to his officers. Then you are to mark the subpoenas as personal
service. What should be done?
b)
You serve a magistrate summons with a complaint in summary
ejectment, which has a court date on it. The time period for serving
the 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
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deputy gives you three civil processes to be served. You are a police
officer for the town in which the defendants live. The deputy tells you to
just sign his name to the papers and he will pick them up later. What will
you do?
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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 civil process"
directed to them. [G.S. 160A-285.] Because this authority is seldom 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 of
writs to enforce judgments entered by a court.
This block of instruction is not designed to fully address all facets of civil
process. Instead, emphasis is placed on preparing students to serve basic
civil process (summonses and subpoenas). As a justice officer, 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 want you to act on his
complaint. It may be “civil” in nature and your basic knowledge of civil
process will aid you in determining the necessary steps to take to resolve
the situation. Having such knowledge will make 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 summons and
effective enforcement of court orders, the civil court system would cease to
function. On a more immediate level, where a deputy fails to properly
execute civil process duties, the sheriff may be held liable.
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This affects the public’s view of the effectiveness of the Office of Sheriff.
II. Body
A.
Serving Summonses
NOTE: Show slide, "Serving Summonses."
1. Beginning a lawsuit
a) There are generally two parties to a civil lawsuit -plaintiff and
defendant. The plaintiff is the party bringing the lawsuit and the
defendant is the person or entity the plaintiff is suing. A civil
action begins when the plaintiff files a complaint with the clerk of
superior court.
b) Upon the filing of the complaint, the clerk issues a summons to the
defendant. Under the law, the summons must be issued within five
days after the complaint is filed; however, as a practical matter, it
is almost always issued immediately after the complaint is filed. In
fact, in most counties the plaintiff must fill out the summons and
give it to the clerk when filing the complaint.
(1)
What is a complaint? The complaint can bethought of as the
lawsuit itself-that is, the document prepared by the plaintiff
that indicates who he is suing, why, and for what legal
“remedy.” The complaint does not need to be excessively
detailed, but merely needs to give the defendant a brief
statement of the allegations against him, and the legal relief
or recovery(remedy) the plaintiff is seeking. For example, a
complaint filed by John Doe against Jane Roe may state that
Ms. Roe owes Mr. Doe $250 for a stereo she purchased from
him.
Complaints come in different formats. Small claims
complaints are fill-in-the-blank papers a defendant can get
when he goes to issue the papers. Complaints that go with
civil summons are generally typed on blank sheets of paper
by attorneys from their offices and have many different
formats, depending on what the attorney uses. All complaints
must have certain pieces of information in them to make
them validly issued and “usable” to give court jurisdiction to
hear the cases.
(2)
The summons indicates to the defendant what steps he or
she must take next in response to the complaint. Valid
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service of the summons gives the court jurisdiction over the
defendant.
(3)
What makes this country different from most other countries
in the world is that our people are “free.” By being a citizen of
this country, we enjoy the privileges and the rights of not
being born under any type of government jurisdiction. In
order for the government to have the right to try us in civil or
criminal court, to enforce a judgment or seize our property,
the government must have jurisdiction over us. This is
accomplished by “serving” us with “notice” of what is going to
happen. Simply, the government has to tell us what they are
doing; it is 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 citizen notice of what the branch of government the
officer represents is going to do to him; which is charge him
with an offense. Those words give the branch of government
the authority to detain the citizen, force him to go to a
detention facility to be processed, tells the citizen when to go
to court and what he needs to do to get out of the facility. The
whole idea is to inform the citizen of what is going on. The
delivery of the information is essential for due process in this
country.
Example: When an officer delivers a copy of a summons
and a complaint to a person, by delivering the
information, the judicial district issuing the summons has
the authority to proceed with that particular case with
those parties to that case. The delivery of information is
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 had for coming to this county. They
didn’t like the government of their homeland county doing
things to them without them being told first so they would
have the opportunity to defend themselves. That is what
“due process” is all about.
There are two types of jurisdiction this lesson plan covers.
One is called “in personam” jurisdiction and the other is “in
rem” jurisdiction. “In personam” means that there is
jurisdiction created over the person. “In rem” jurisdiction
means there is jurisdiction over the “thing” or in this case,
property.
Depending on the type of paper the officer is handling, the
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court may need either type of jurisdiction or both. That is
why different types of papers must be served in specific
ways—to create 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 proceedings are
listed below in the order of their frequency of use. With increased
availability of computer software that allows users to create 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 for service of such self-generated forms, law
enforcement officers should be certain that the forms are proper and
valid on their face before service is attempted. If you are required to
handle and 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
www.aoc.state.nc.us/www/public/html/forms.html.
a) Magistrates summons (AOC-CVM-100)
(1)
This summons is issued when a plaintiff files a complaint to
be heard in small claims court by a magistrate. There are
three types of complaints this court has jurisdiction to
handle. They are:civil cases for $5,000 or less in which the
plaintiff seeks 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 to come to the trial at the date,
time, and place indicated on the summons.
b) Civil summons (AOC-CV-100)
(1)
This summons is issued when a plaintiff files a complaint to
begin a civil action in district or superior court. (Any civil
case, including others for breach of contract, automobile
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negligence cases, medical malpractice; family law matters
such 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
restrictions for 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 default judgment may be entered,
which means that a judgment is in favor of the plaintiff
for the amount the plaintiff sought in the complaint will
be entered “automatically” without a trial.
c) Special proceedings summons (AOC-SP-100)
(1)
This summons is issued when a party initiates a special
proceeding. A special proceeding is heard initially by the
clerk. It includes such proceedings as adoptions,
adjudications of incompetence, name changes, partitions, and
proceedings to sell property belonging to a decedent’s estate
or incompetent’s estate.
(2)
In a special proceeding, the plaintiff is called a petitioner, the
defendant is called a respondent, and the complaint is called
a petition or a motion.
(3)
The summons tells the defendant that the next step to take
is to file a written answer with the clerk within 10 days.
(4)
The majority of special proceeding summons that deputy
sheriffs serve are “Notice of Foreclosure. ”Unlike a summons
in summary ejectments, the “Notice of Foreclosure” involves
a mortgage or deed of trust against real property.
(a) The “Notice of Foreclosure’ specifies a time and date for a
hearing before the clerk of court. Service must be ten
(10)days prior to the hearing date.
(b) In some cases the respondent/defendant cannot be
located within your county. In such cases “posting” the
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“Notice of Foreclosure” on the property must make
service. Posting the “Notice” requires at least twenty (20)
days prior to the hearing date.
The action of a foreclosure is for the court to take away
possession of the real property from the owners and return
possession and ownership back to the bank or mortgage
holder. Serving the foreclosure papers in person gives the
court “in personam” jurisdiction to do that. Posting the
papers without personally serving the papers on the
defendants gives the court “in rem” jurisdiction to turn the
property back to the mortgage holder even though the
defendants were 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 a juvenile for
delinquency (which means the juvenile is alleged to have
committed an act that would be a crime if he or she were an
adult) or for being undisciplined (out of the control of the
parent).
The summons orders the juvenile to appear at a hearing at
a specified time, date, and place to determine if he or she is
delinquent or undisciplined, what disposition is to be made,
and orders the parent to appear for determination of
whether the parent should be required 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 a juvenile is alleged
to be abused or neglected.
The summons orders the juvenile to appear at a hearing at
a specified time, date, and location to determine if he or she
is abused or neglected, what disposition is to be made, and
orders the parent to appear for determination of whether
the parent should be required to pay for the attorney
appointed to represent the juvenile.
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(3)
Along with these juvenile summonses, a juvenile petition is
served. The juvenile petition is equivalent 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 or her minor child is begun.
(2)
The summons tells the parent (who is termed the
“respondent”) that he or she must file an answer to the
petition within 30 days with the clerk or parental rights may
be terminated. Also, it indicates that the parent will be
notified by the clerk 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 to the juvenile
or a responsible party, such as a guardian.
3. What to serve, who can serve
NOTE: Show slide, "What To Serve? Who Can Serve?"
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a) In each of the cases mentioned, a copy of the complaint(or petition)
and of the summons must be served on each defendant. Without
proper service on the defendant, the court does not have
jurisdiction over the defendant and the case cannot proceed. If the
deputy does not properly serve the complaint and summons or if
the deputy’s return does not properly reflect how the deputy made
the return, it is possible that the plaintiff will lose the 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 pay particular attention
to the return that is made.
b) A complaint and summons may be served by the sheriff or the
sheriff’s deputies. If the sheriff returns the complaint and
summons unserved, the second or subsequent method at service
may be made by the sheriff 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 “nonenforceable” writs. A writ is a generic term used to mean “a courtissued document.” Non-enforceable writ means generally that the
only thing the officer needs to do is to deliver copies of the papers
to the defendant by a legal means. An enforceable writ usually
requires the officer to “do” something like seize personal property
or put a lien on real property, but requires of the officer more than
just hand delivering copies of a process.
c) In addition to the methods of service by the sheriff or process
server that are set out later in this outline, the plaintiff may serve
the defendant - without involving the sheriff - by mailing a copy of
the complaint and summons by certified or signature confirmation
mail, return receipt requested, addressed to the defendant.
4. Issuance and time for service
The Clerk of Superior Court is an elected official, elected every four
years for his/her judicial district. The office of the Clerk is an
essential step to understand how papers are initiated and handled
through the court system. The Clerk of Superior Court is responsible
to have papers “issued” at the request of plaintiffs to have defendants
served.
NOTE: Refer to handout, “What Does the Clerk of
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Superior Court Do?”
a) Occasionally, a plaintiff’s legal claim will “expire” if his summons
is not issued by a certain “deadline” (statute of limitations). Where
the summons is timely issued before the deadline, the plaintiff’s
claim remains “alive” even if the service is achieved after the
deadline. But what happens if the summons is not served within
the60 days, and the deadline prevents the plaintiff from having a
new summons issued? There are special rules to protect plaintiffs
in this situation. If the summons cannot be served within the 60day period, plaintiff’s lawsuit may nevertheless be continued by
having the clerk issue an “alias or pluries” (second or subsequent)
summons any time within 90 days of the last issue date. An alias
or pluries summons is the same as an original summons except a
block under the title of the form is checked to indicate that it is an
alias or pluries summons. The alias or pluries summons must be
served within 60 days after it is issued or it becomes void, as with
any summons. In most cases, however, where the sheriff has tried
unsuccessfully to have all the re-issued summons served, the
plaintiff will serve the defendant by simply publishing a notice of
the lawsuit in the newspaper.
Alias means another or alternate and pluries means more than
one. So the term means “more than one alternative” to gain service
over a defendant.
Instead of using alias and pluries summonses, some clerks use an
alternative procedure called an “endorsement.” An endorsement is
a stamp on the original summons that indicates the new 60-day
period in which the summons may be served. In counties that use
endorsements rather than alias and pluries summonses, a deputy
returns the original summons when unable to serve it within 60
days after it was issued. If the plaintiff seeks a subsequent
summons, the clerk will stamp an endorsement on the original
summons, setting out a new date of issuance, and send that back
to the sheriff for service.
Endorsement means “to sign,” so an endorsed summons means
that the Clerk of Superior Court has re-signed the paper, dated it
and put a time on it (“re-issued” it).
b) Summons must be signed by the Clerk of Superior Court to be
validly issued. Therefore, the first action a deputy must take on
receiving summons for service is to make sure that it has been
signed by a proper person.
The summons must be issued by the clerk of the county in which
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the lawsuit is filed. It may be served in the county in which the
lawsuit is filed or in any other county in North Carolina in which
the defendant resides or may be found.
c) A summons must be served within 60 days after the date the clerk
issued it or by its court date depending on the type of summons.
NOTE: Show slide, "Civil Summons." Point out to the class
where on the summons the clerk indicates the date of
issuance.
d) The deputy must return the summons to the clerk when the 60
days have run even if the summons has not been served. Once a
summons is served, it should be returned quickly to the clerk.
NOTE: Show students where to endorse a Civil
Summons.
5. What does it mean to “serve” a copy of the complaint and summons on
a defendant?
a) Service of summons and complaint means to give a copy of both
documents to the defendant or some other person legally suitable
for service. The legal effect of proper service is to give the court
jurisdiction over the defendant. Service is a very significant
“moment” in the life of a lawsuit and it must be done in strict
conformity with the law.
b) There is no statutory requirement to read or explain the summons
to the defendant. However, some departments have a policy of
reading the summons to the defendant or explaining what it
means. Many people think that if the sheriff serves something on
them, they are about to go to jail. At the very least, it might be
useful to tell the defendant that this is not a criminal matter, but a
private lawsuit which does not involve the possibility of a jail
sentence.
c) A defendant or other proper person for service does not have the
choice of saying whether he or she will not accept service. If a
defendant refuses to accept the complaint and summons after
being told what it is, the deputy may drop it at the person’s feet or
do some other act that constitutes delivery. In those cases, the
deputy’s return should be specific regarding how the summons was
served and why it was served that way.
(1)
Errion v. Connell, 236 F.2d 447 (9th Cir. 1956).Service was
upheld when the sheriff pitched papers through a hole in the
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screen door after speaking to defendant, who had then
ducked behind door.
(2)
Hickory v. Merrit, 197 S.E.2d 833 (Ga. 1973).Personal service
upheld when officer left at door stating that he had seen
defendant from window, talked to him through door, and
defendant had refused to open the door.
(3)
Nielsen v. Braland, 119 N.W.2d 737 (Minn.1963). If process
server and defendant are within speaking distance of each
other, and such action is taken as to convince a reasonable
person that personal service is being attempted, service
cannot be avoided by physically refusing to accept the
summons.
(4)
Kurtz v. Oremland, 103 A.2d 53 (N.J. 1954).Wife wouldn’t
accept service for husband at their dwelling; sheriff went
back several times thereafter and maid said they went to NY
or wouldn’t answer door; sheriff didn’t attempt other service;
no valid service; but implication is that sheriff could have left
summons with wife.
(5)
Aqua-Marine Constructors, Inc. v. Banks, 1993
U.S. Dist. Lexis 9884 (D. Or. 1993). Service on a corporation
by leaving copies with managing director accomplished by
placing papers on director’s desk after director refused to
accept them.
6. Upon whom does deputy serve a summons and complaint?
The precise method for service depends on the category (type)of
defendant who is being sued. There are two and sometimes three
ways to serve each kind of defendant, and under North Carolina law
each method of service is of equal status, which means the deputy
does not have to try one type of service before serving by an
alternative method. Nor does the deputy have to make numerous
attempts at one type of service before resorting to another.
The following sections will detail how a deputy must serve various
categories of defendants (natural persons, corporations, government
bodies, etc.). Because the rules are different for each, the first step for
a deputy is to examine the summons(and perhaps the complaint) to
ascertain the proper category of defendant.
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a) DEFENDANT CATEGORY #1: Natural Person
NOTE: Show slide, "Natural Person."
(1)
“Natural person” means an individual human being (as
opposed to a business, unit of government, or some other
kind of legal entity.)
(2)
The sheriff may serve the “natural person” defendant by:
(a) Delivering a copy of the summons and complaint to the
individual named in thec omplaint and summons (see
special notes at “(3)” below);
(b) Leaving a copy of the complaint and summons at the
defendant’s dwelling or usual place of abode with a
person of suitable age and discretion residing in that
dwelling (see special notes at “(4)”below), or
(c) By delivering a copy of the complaint and summons to an
agent authorized by appointment or by law to be served
or accept service of process or by serving the agent in any
manner specified by any statute (see special notes at
“(5)” below).
(3)
Service by delivering a copy of the summons and complaint
to the defendant.
(a) The process may be given to the defendant at any place
within his jurisdiction where the sheriff can locate him
or her.
(b) The process may be served at any time of the day or
night and on any day of the week.
(4)
Service by leaving a copy of the summons and complaint at
the defendant’s dwelling with a person of suitable age and
discretion who also resides in the dwelling.
(a) Service must be made at the defendant’s dwelling house
or usual place of abode.
i)
“Usual place of abode” means the place where the
party is actually living at the time service is made,
except for temporary absences. Moore’s Federal
Practice ¶ 4-10[3].
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ii)
Defendant may have more than one residence.
Where the defendant maintains two homes, might
have two dwellings or places of abode. Van Buren v.
Glasco, 27 N.C. App. 1, overruled on other grounds,
Love v. Moore, 305 N.C. 575 (1982).Service at
defendant’s North Carolina residence upheld even
though defendant worked and owned home in
South Carolina and came to North Carolina
residence only on weekend.
iii)
Need not be his legal residence or domicile. A
person has only one legal residence or domicile,
which is the place where he intends to make his
home.
iv)
It is not proper to serve a person who lives at the
dwelling or place of abode with the defendant at a
location other than the dwelling. Williams v.
Harris, 18 N.C. App. 89(1973). Service invalid
when mother met sheriff at location away from the
house to receive complaint and summons for son.
Hall v. Lassiter, 44 N.C. App. 23(1979) - Improper
service to deliver process to defendant’s son at
defendant’s place of business.
(b) The process must be left with a person of suitable age
and discretion.
i)
Need not be a family member.
ii)
Must be mentally competent.
iii)
Suitable age depends on the actual circumstances.
Must be of such an age and maturity to understand
what is happening and that the papers should be
delivered to the defendant.

North Carolina has upheld service on
defendant’s 15year old son. [Van Buren v.
Glasco, 27 N.C. App. 1(1982).]

Other states as young as 13.[Holmes v. Miller,
206 N.W.2d 916 (Minn. 1973).]
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iv)
Suitable discretion requirement applies to adults
as well as children so sheriff must make sure adult
has sufficient understanding to know what is
happening and to understand to deliver the papers
to the defendant. [Joyce v. Bauman, 154 A. 425
(N.J. 1933) – Illiterate maid is not a person of
suitable age and discretion.]
(c) Person with whom left must also reside in dwelling with
the defendant.
Cannot serve servant who works in the house but resides
elsewhere [Franklin America, Inc. v. Franklin Cat
Products, Inc., 94 F.R.D. 645 (E.D. Mich. 1982)] or
visitors to the dwelling.
(d) A deputy should ask sufficient question of the person
with whom the papers will be left to determine whether
the person meets the criteria under this statute. The
officer serving the papers should be able to answer the
following question (to himself) in determining if service
should be made for the circumstances: “Can I go to court
and testify that in my mind this is valid, binding service,
and to explain my actions to the court?” If the officer can
answer that question “yes,” then his service is probably
good; if not, then the officer probably should not serve
the papers at that time.
(5)
Service on an agent authorized by appointment or by law to
be served or accept service of process.
(a) There are several types of agents listed in this lesson
plan. Here is a list of the most common types. As we go
through the lesson plan we will discuss which type of
agent applies to the given circumstances.
This list may be applied flexibly to the different
entities and circumstances of service.
i)
an attorney/a lawyer: a lawyer is a person who
has graduated from law school and passed the
state bar. An attorney is a lawyer who represents
another, as in “attorn” meaning “to turn over to.”
An attorney may not necessarily be able to accept
service of process for his client.
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ii)
an attorney of record: is an attorney who has
made at least one appearance in a court of
record(open court of district or superior court) who
is specifically representing a specific client in a
specific case. An attorney of record may accept
service for his client, but just in the case to which
he has appeared in court already. Example: If an
attorney comes to the Sheriff’s Office to accept
service for a civil summons for his client, chances
are the attorney isn’t the attorney of record,
because the case may not have gone to court yet.
The attorney may only accept service if he is in
another category such as attorney-in-fact.
iii)
an attorney-in-fact: is a person, who does not
necessarily have to be a lawyer and many times
isn’t, who has the specific job of accepting service
for another person, authorized by a document
called a “letter of attorney.”
iv)
an agent for service: is a person, not necessarily
an attorney, who can specifically accept service of
process because of a job or position he holds for a
company, or through a document such as a “power
of attorney.”
v)
a registered agent: is an agent, a representative,
usually for a corporation, who is specifically named
and designated through the Secretary of State.
(The Office of the Secretary of State of North
Carolina in part is responsible for chartering
corporations)
vi)
a managing agent: is a person who has some
management authority in the running of a
business.
vii)
a guardian: is a person who is lawfully invested
with the power and charged with the duty to take
care of another person. A guardian can be a natural
person or a business such as an attorney or a bank.
viii) a guardian ad litem: is a guardian who is
lawfully appointed for a specific suit or case;
“adlitem” means “for the suit.”
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ix)
the holder of power of attorney: is a document
legally authorizing another person to act as a
person’s agent. A power of attorney can be general
or specific. An officer serving the holder of power of
attorney for the defendant should probably look at
the authorizing document to ensure the document
authorizes service of process.
(b) Defendant must specifically appoint person to be an
agent by appointment for purposes of accepting service.
i)
It would be rare that an individual would ever
appoint someone else to receive process on his or
her behalf.
ii)
The attorney who generally handles legal affairs
for a defendant is not the defendant’s agent by
appointment for the service of process. However,
once the summons and complaint have been served
and the attorney makes an appearance on the
defendant’s behalf, future process may be served on
the attorney.[Beck v. Beck, 64 N.C. App. 89(1983).]
iii)
An example of a situation where an individual
would appoint an agent for purposes of accepting
service is found in G.S. 28A-4-2, which provides
that a nonresident personal representative who
wishes to administer an estate in North Carolina
must appoint a North Carolina resident as an
agent to receive service of process. [G.S. 28A-4-2.]
(c) Agent authorized by law means that a statute
specifically provides for a particular person to accept
service.
An example is G.S. 1-105, which provides that any
nonresident who operates a motor vehicle within this
state appoints the Commissioner of Motor Vehicles as a
proper person to accept process on any lawsuit arising
out of a motor vehicle accident in this state.
(d) An agent may be served in any manner authorized by
any statute. In a lawsuit against an out-of-state
executor, as the administrator for a decedent’s estate,
the court upheld service on a lawyer who was the
appointed agent to receive service by leaving copies with
the lawyer’s partner at the lawyer’s office. The court said
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that the process agent was properly served under the
provisions for serving a partnership by leaving a copy
with any general partner or by delivering a copy to the
person apparently in charge at the office of the
partnership. [Storey v. Hailey, 114 N.C. App. 173 (1994).]
b) DEFENDANT CATEGORY #2: Natural Person Under Legal
Disability
NOTE: Show slide, "Natural Person Under Legal
Disability."
(1)
Disability for purposes of this statute means that either the
person is a minor (under the age of 18years) or lacks the
mental competence to manage his or her affairs.
(a) A person incarcerated in prison is not under a legal
disability.
(b) A person who is physically or mentally handicapped is
not under a legal disability unless the impairment is
sufficient to render the person incompetent to manage
his or her affairs.
(2)
The person under the disability must be served by one of the
methods authorized for service on a natural person.
(3)
In addition, a second copy of the complaint and summons
must be served on another person as follows:
(a) If the defendant is a minor - on a parent or guardian
having custody of the child or, if none, any person having
control and care of the child. If there is no parent,
guardian, or other person having control and care of the
child, a guardian ad litem must be appointed under G.S.
1A-1, Rule17, and the sheriff must serve a copy oft he
summons and complaint on the guardian ad litem.
i)
A guardian is a person appointed by the clerk of
court to take care of a minor if that minor’s parents
are deceased. If the minor has a guardian, there
will be a court order appointing the person as
guardian.
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ii)
A guardian ad litem is a person appointed by the
court (it can be by the clerk, a magistrate, or a
judge)to defend the minor child in a specific
lawsuit.
iii)
A person having control and care of the child could
be a person or agency that has custody of their
child such as a foster parent or the Department of
Social Services, but could also be a person with
whom the child is living even though that person
has not been given lega custody. For instance, the
child might be living with his grandmother or with
her aunt and the grandmother or aunt is providing
all of the care for the child.
(b) If the defendant is incompetent - on the guardian if the
defendant has been adjudicated incompetent in an
incompetency proceeding. If the defendant has not been
adjudicated incompetent, a guardian ad litem must be
appointed, and the sheriff must serve a copy of the
summons and complaint on the guardian ad litem.
i)
An incompetency proceeding is heard by the clerk
of court. Upon adjudicating a person incompetent,
the clerk appoints a guardian to handle the
incompetent’s affairs.
ii)
A guardian may be an individual or a corporation
that is authorized to act as guardian.
(c) The sheriff must serve the parent, guardian (who is a
natural person),person having control and care of the
child, or guardian ad litem by any method authorized for
a natural person. If the guardian is a corporation, the
deputy may serve the guardian by any method
authorized for serving corporations. If the persons have
control and custody of the child is a state or local
governmental agency, the agency must be served in the
manner authorized for serving that type of government.
c) DEFENDANT CATEGORY #3: Corporation
NOTE: Show slide, "Corporation."
(1)
A corporation is a business that has taken the necessary
steps to be set up as a separate legal entity. If the
corporation is a North Carolina corporation that means that
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it has filed letters of incorporation with the NC Secretary of
State. The consequences of creating a corporation are that
the corporation is a legal entity in itself that can sue and be
sued and can own property. Most importantly, the
corporation itself and not its officers is liable for its debts.
The corporate name must contain the word “corporation,”
“incorporated,” “company,” or “limited,” or the abbreviation
“corp.,” “inc.,” “co.,” or “ltd.” [G.S. 55-4-01.] A deputy can
determine if the defendant is a corporation by calling the
Secretary of State’s Office.
Only a corporation may use the word “incorporated” or the
abbreviation “corp.,” “inc.” in its name. However, any
business can use the word “company” or the abbreviation
“co.,” and partnerships may use the word “limited” or the
abbreviation “ltd.” in its name.
(2)
A foreign corporation (one incorporated in another state)
must obtain a certificate of authority from the Secretary of
State before transacting business in this state. A deputy can
determine if the defendant is a foreign corporation by calling
the Secretary of State’s Office.
However, even if the foreign corporation has not qualified in
North Carolina, it may be sued in this state if it does
business in the state.
(3)
The deputy may serve the corporation by:
NOTE: Show slide, "Serving a Corporation."
(a) Delivering a copy of the complaint and summons to an
officer, director, or managing agent of the corporation
(see special notes at # (4) below);
(b) Leaving a copy of the complaint and summons in the
office of an officer, director, or managing agent with the
person who is apparently in charge of the office (see
special notes at # (5) below);
(c) Delivering a copy of the summons and complaint to an
agent authorized by appointment or by law to be served
or to accept service of process or by serving process upon
the agent in a manner specified by any statute (see
special note at # (6) below).
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(4)
Service by delivery to an officer, director, or managing agent
of the corporation.
(a) Obviously, since a corporation is not an individual, the
corporation has to be served by leaving copies with some
individual.
(b) This requires delivering the process to the officer,
director, or managing agent personally.
(c) Director means a member of the board of directors of the
corporation and officer means an officer of the
corporation.
(d) A managing agent is a person who is “in charge, and has
the management of some department of the corporation's
business, the management of which requires of the agent
the exercise of independent judgment and discretion.”
[Williams v. Burroughs Wellcome Co., 46 N.C. App.
459(1980).]
(e) There is no strict legal definition of the term "managing
agent," and whether a person is a managing agent
depends on the circumstances of each case. [Royal
Furniture Co. v. Wichita Furniture Co., 180 N.C. 531
(1920).]
(5)
Service may also be achieved by leaving copies in the office of
an officer, director, or managing agent with the person who
is apparently in charge of the office.
(a) The person on whom served does not have to be, in fact,
in charge, merely “apparently” in charge. [Williams v.
Burroughs Wellcome Co., 46 N.C. App. 459(1980)
(secretary of managing event agency served.)]
(b) The person apparently in charge need not be a highranking official, but the deputy must ask questions to
make sure that the person with whom he or she leaves
the complaint and summons is apparently in charge.
[Simms v. Mason’s Store, Inc., 18 N.C. App. (1973)
(officer leaving with security guard who wasn’t employee
of corporation not sufficient.)]
(c) Deputies should be cautious about leaving copies with
person “apparently in charge” rather than officer,
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director, or managing agent at business after regular
business hours. [City of Durham v. Lyckan Develop.
Corp., 26 N.C. App. 210 (1975) (service on unknown
person after normal office hours not service on person
apparently in charge.)]
(6)
Service may also be achieved on an agent authorized by
appointment or by law to be served or to accept service of
process.
(a) Every corporation must maintain a registered office in
North Carolina and must name a registered agent to
receive service of process. The registered agent must be a
corporation or an individual who resides in North
Carolina and whose business office address is identical to
the registered office address. The name of the registered
agent and the location of the registered office must be
filed with the Secretary of State. [G.S. 55-5-01.] The
registered agent is an agent authorized by appointment.
(b) Service on agent may be in any manner authorized by
statute.
If the registered agent is a natural person, he or she may
be served personally or a copy of the complaint and
summons maybe left at the registered agent’s dwelling
with a person of suitable age and discretion who also
resides at the dwelling. [Great Dane Trailers, Inc. v.
North Brook Poultry, Inc., 35 N.C.App.752 (1978).]
(c) An agent appointed by law is one appointed by statute.
An example is G.S.55-5-04, which provides that if no
registered agent has been appointed or if the registered
agent cannot with due diligence be found at the
registered office, the Secretary of State is the agent upon
whom such process may be served.
Service on the Secretary of State can be made only by
the Wake County sheriff and the plaintiff is responsible
for determining whether this method of service is
proper and for having the clerk issue an alias and
pluries summons to be served on the Secretary of State.
(7)
Sometimes corporations engage in business under a name
other than the name registered with the Secretary of State.
In that case the corporation must file in the office of the
register of deeds of the county in which the corporation
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operates a certificate giving the assumed name under which
the business operates and the name and address of the
owner. [G.S. 66-68.]
(8)
The rule regarding service on corporations also applies to
professional corporations. A professional corporation is the
name given to a group of persons who provide professional
services and want the benefit of having a corporation’s status
as a separate legal entity. Professional services are any
services to the public that require a license from a licensing
board to render the service and include professions such as
law, medicine, nursing, architecture, veterinary medicine,
landscape architecture, and public accountant. Professional
corporations can use the words “Professional Association” or
“P.A.” or
“Professional Corporation” or “P.C.” instead ofthe usual
corporate designations.
NOTE: Chapter 57C of the General Statutes creates a
similar but distinct type of business entity known as a
"Limited Liability Company"(LLC) or "Professional Limited
Liability Company." Pursuant to G.S. 57C-2-40, each limited
company must continuously maintain a registered office and
a registered agent whose sole duty is to forward to the LLC
at its last known address any notice, process, or demand that
is served on the registered agent. Pursuant to G.S. 57C-2-43,
the registered agent is an agent of the LLC for service of
process, notice, or demand required or permitted by law to be
served on the LLC. If the LLC fails to appoint or maintain a
registered agent, or when its registered agent cannot with
due diligence be found at the registered office, then the
Secretary of State shall be an agent of the LLC upon who
many process, notice, or demand may be served.
d) DEFENDANT CATEGORY #4: Partnership
NOTE: Show slide, "Partnership."
(1)
A partnership is an association of two or more persons to
carry on as co-owners of a business for profit. Unlike a
corporation, all partners are jointly and severally liable for
the acts and obligations of the partnership. There is also a
specific statute governing limited partnerships. A limited
partnership is one in which some partners have limited
liability for the acts and obligations of the partnership, while
others who are general partners have full liability. The name
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of a limited partnership must include the words “limited
partnership.”
(2)
The sheriff may serve a partnership by:
(a) Delivering the complaint and summons to any general
partner, or to any attorney-in-fact or agent authorized by
appointment of law to be served (see special notes at #
(3) below); or
(b) Leaving a copy of the complaint and summons in the
office of a general partner or attorney-in-fact or agent
with the person who is apparently in charge of the office
(see special notes at # (4) below).
(3)
Service on general partner, attorney-in-fact, or agent
(a) Frequently, the lawsuit will be filed against partnership
and the individual general partners, because the general
partners are liable for the debts as well as the
partnership. If the deputy finds one of the general
partners, the deputy should serve a copy of the complaint
and summons on the general partner as an individual
person who is a defendant and a second copy on the
general partner to accomplish service on the partnership
as a defendant by leaving copies with a general partner.
Of course, the other general partners who are listed as
defendants must also be served as natural persons.
Service on one general partner, however, is not service
on other general partners who are sued individuals; they
must also be served as natural persons.[Shelton v.
Fairley, 72 N.C. App. 1 (1984).]
(b) All limited partnerships are required to maintain a
registered office and name a registered agent at that
office to receive service. These are listed with the Office
of the Secretary of State. Also the listing of a limited
partnership will include the names and addresses of the
general partners and limited partners. A deputy may not
serve a partnership by leaving copies with a limited
partner.
(c) An attorney-in-fact is a person who holds a power-ofattorney (sometimes referred to as “POA”) for a
partnership. That person should have a legal document
indicating that he holds a power of attorney.
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(4)
Service by leaving copies of the complaint and summons in
the office of a general partner or the attorney-in-fact or agent
with the person who is apparently in charge of the office.
The same rules apply to the person apparently in charge of a
partnership that are discussed in the section above for
corporations.
(5)
Any partnership that engages in a business under an
assumed name other than the real name of the owners (or if
a limited partnership, other than the name registered with
the Secretary of State) must file in the office of ther egister of
deeds of the county in which the business operates a
certificate giving the name under which the business
operates and the name and address of the owner. [G.S. 6668.]
e) DEFENDANT CATEGORY #5: Unincorporated Association,
Organization, or Society Other than a Partnership
NOTE: Show slide, "Unincorporated Association."
(1)
An unincorporated association is a voluntary group of
persons formed by mutual consent for the purpose of
promoting a common enterprise or prosecuting a common
object. A society is a group of persons united together by
mutual consent, in order to deliberate, determine, and act
jointly for some common purpose. [Black’s Law Dictionary.]
(2)
The sheriff may serve an unincorporated association,
organization, or society by:
(a) Delivering a copy of the papers to an officer, director,
managing agent, or member of the governing body of the
unincorporated association, organization, or society,
(b) By leaving copies in the office of the officer, director,
managing agent, or member of the governing body with
the person apparently in charge of the office, or
(c) Delivering a copy of the papers to an agent authorized by
appointment or bylaw to be served or by serving process
on the agent in a manner specified by any statute.
f) DEFENDANT CATEGORY #6: Sole Proprietorship
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NOTE: Show slide, "Sole Proprietorship."
(1)
Frequently, an individual owns and operates a business that
is not incorporated and in which he has no partners. This
kind of business is called a sole proprietorship. In that case,
the business is not a separate legal entity, and the owner is
the defendant in the lawsuit. Sole proprietorships are usually
designated by captions such as “John Doe t/a John’s Mini
Mart” or Sam Barber d/b/a/“Main Street Esso.” The letters
“t/a” mean “trading as” and the letters “d/b/a” stand for
“doing business as.” In those cases, the deputy serves the
individual as a natural person.
(2)
Service on sole proprietorship as if it were an unincorporated
association is improper. [Park v. Sleepy Creek Turkeys, Inc.,
60 N.C. App. 545(1983).]
g) DEFENDANT CATEGORY #7: The State of North Carolina or an
Agency of the State
NOTE: Show slide, "State of North Carolina."
h) DEFENDANT CATEGORY #8: Counties, Cities, Towns,
Villages or Other Local Public Bodies
NOTE: Show slide, "Counties, Cities, or Towns."
(1)
City, town, or village: The sheriff may serve a city, town, or
village by personally delivering a copy of the complaint and
summons to the mayor, city manager, or city clerk.
A city clerk is appointed by the City Manager and basically is
responsible for maintaining and keeping the records that run
a city. They also schedule and maintain records for the “City
Fathers,” the elected officials.
(2)
County: The sheriff may serve a county by personally
delivering a copy of the complaint and summons to the
county manager or to the chairman or any member of the
board of commissioners or to the clerk of the board.
A county clerk is appointed by the County Manager and
basically is responsible for maintaining and keeping the
records that run the county. They also schedule and
maintain records for the elected county commissioners.
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(3)
Other political subdivision: The sheriff may serve any other
political subdivision of the state, any county or city board of
education, or other local public district, unit, or body of any
kind by personally delivering a copy of the complaint and
summons on an officer or director of the political subdivision
or by personally delivering a copy to an agent or attorney-infact authorized by appointment or statute to be served.
(a) Members of the board of education are directors and the
superintendent is an officer as the boar’s ex officio
secretary. [G.S. 115C-41.]
(b) Long v. Cabarrus County Bd. of Educ., 52 N.C. App. 625
(1981) (service on board of education by leaving copies at
dwelling of chairman of the board with a person of
suitable age and discretion who alsor esides at dwelling
was not valid).
(c) An example of another political subdivision of the state
that sometimes gets sued is the Area Mental Health,
Developmental Disabilities and Substance Abuse
Authority. The sheriff may serve that local governmental
unit by personally delivering a copy of the complaint and
summons to any member of the area board.
7. Special method of service for summons and complaint in summary
ejectment cases (AOC-CVM-201)
NOTE: Show slide, "Summary Ejectments."
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a) A summary ejectment lawsuit is a suit by a landlord to evict the
tenant from the rental property. Usually, summary ejectment
actions are brought in small claims court. Because the cases are
required to be set for trial within seven working days after the
summons is issued and the remedy is to remove the defendant
from real property, G.S. 42-49 creates a special method for service
of process of summary ejectment actions.
b) To serve a magistrate summons with a complaint in summary
ejectment is a four-step process, unique to this paper. (A
magistrate summons with a complaint for money or a complaint
for personal property is served just like a civil summons,
depending upon if the defendant is a natural person, corporation,
etc.) The steps must be followed exactly, or service is not complete.
Accomplishing only one of these steps does not constitute complete
service so officers should be familiar with all the steps.
(1)
The deputy must mail a copy of the complaint and summons
to the defendant not later than the end of the next business
day or as soon as practicable at the defendant’s last known
address in a stamped addressed envelope provided by the
plaintiff.
(2)
The officer may, within five days of the issuance of the
summons, attempt to telephone th defendant requesting that
the defendant come to the office to be served or set an
appointment when the deputy may serve him.
(3)
Whether or not the defendant was contacted by telephone,
the deputy must make at least one visit to the place of abode
of the defendant within five days of issuance of the summons
to attempt personal delivery of the summons and complaint.
The visit must be made at a time reasonably calculated to
find the defendant at home. At that visit, the deputy shall
deliver the papers personally to the defendant or leave copies
at the defendant’s dwelling with a person of suitable age and
discretion who also resides there.
(4)
If service cannot be made in one of those two ways, the
deputy shall affix (post) the copies to some conspicuous part
of the premises claimed.
(a) This kind of service is called "service by posting." Note
that the deputy cannot post the summons and complaint
unless a copy of each was also mailed to the defendant by
first-class mail soon after the sheriff’s office received the
process.
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(b) “A time reasonably calculated to find the defendant at
home” would be at the officer’s discretion to determine
although no court case has yet interpreted those words.
8. Return of service
a) Almost as important as serving the summons and complaint
properly is the requirement for the deputy t make a proper return
of service to the clerk.
The form of the return is left up to the officer who served the
paper. The Administrative Office of the Courts has come up with
fill-in-the-blank returns for most processes. However, it is NOT
uncommon for the actions of the officer to not fit the fill-in-theblanks. So, officers may change the format of the returns to fit
what is needed to accurately express how a paper was served.
Officers can “scratch through” the information in the boxes and
put in their information. Officers can even take a blank sheet of
paper and write out what they did to get the process served.
Officers must remember that all their returns are required to
answer who, where, why, what, how, and when.
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b) G.S. 1-75.10 requires the sheriff to certify that he or she has
served the process, showing the place, time, and manner of
service. This answers the question of who, where, why, what,
how, and when.
c) A deputy’s return that shows legal service is prima facie evidence
of service in fact, but if it is not complete, other evidence may be
offered to establish that service was made as required by law.
[Williams v. Burroughs Wellcome Co., 46 N.C. App. 459 (1980).] A
return may not be set aside except on clear and unequivocal
evidence by more than one person. [Guthrie v. Ray, 293 N.C. 67
(1977).]
d) The best practice is for deputy to make a return specifying in
detail upon whom and in what manner service was made. And if
the deputy is unable to serve the defendant, the deputy should
describe what attempts were made to locate the defendant. For
example, “went to defendant’s house on 5/6 at 10 a.m.;5/8 at 6:30
p.m.; 5/15 at 7:00 p.m. No one answered the door at any of those
times, although on 5/8 and 5/15 two cars were in the driveway. I
could not find out where the defendant works.” [Rollins v. Gibson,
293 N.C. 73 (1977).]
e) §162-14. Duty to execute process. Every sheriff, by himself or his
lawful deputies, shall execute and make due return of all writs and
other process to him legally issued and directed, within his county
or upon any river, bay or creek adjoining thereto, or in any other
place where he may lawfully execute the same.
f)
§162-50. Penalties. Upon a finding that the sheriff, personally or
through his lawful deputies, has willfully failed or neglected to
perform any duty imposed by this Chapter, or has made any false
return, he shall be subject to damages of not more than five
hundred dollars ($500.00), and such damages recovered shall be
paid to the person aggrieved. Nothing in this section bars an
independent action for damages by the person aggrieved.
g) Return of service on natural person.
(1)
If the defendant is a natural person and served personally,
the sheriff must indicate the name of the defendant, the date
of service, and that the defendant was served personally.
Although the statute indicates that the return must indicate
the place of service, the present summons form does not
require that information when the defendant is served
personally. To fully comply with the statute, deputies should
write in the place of service.
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(2)
If the defendant is served by leaving a copy with a person of
suitable age and discretion, the return must indicate the date
of service, the place, the name of the person with whom it
was left, and that it was left at the dwelling with a person of
suitable age and discretion who also resides at the
defendant’s dwelling.
NOTE: Show students a copy of return of Civil
Summons to indicate how to fill out return.
h) Return for service on corporation
(1)
When making a return on a corporation, the return must
show the corporation as the defendant, and it must show the
date, place, name, and title of person to whom the process is
delivered.
(2)
For example, “ABC, Inc. was served on June 25,1997, by
delivering a copy to Robert Smith, Registered Agent, at 4504
Main Street, Winter ,N.C.”
NOTE: Show students a copy of return on Civil
Summons to indicate how to fill out return.
NOTE: Show NCJA video, Civil Process (14 minutes).
9. Bankruptcy
Where the defendant has filed for bankruptcy protection, the deputy
should not attempt to serve a summons if the nature of the
underlying legal proceeding is an attempt to collect a debt. In such
cases, the deputy should return the summons to the clerk of court,
specifying in the return that defendant has filed for bankruptcy.
Where the deputy is uncertain about the status of defendant’s
bankruptcy filing or the nature of the underlying legal claim, a deputy
may wish to contact plaintiff’s attorney for advice about how to
proceed. Another approach is to call the bankruptcy court and ask to
speak with the bankruptcy “trustee.’ (A trustee may be thought of as a
“referee” who is assigned to a bankruptcy case to ensure that the rules
are followed.)Trustees are experts in bankruptcy law and are in the
best position to advise the deputy about whether to serve the
summons or return it to the clerk unserved.
A final approach: As with all difficult legal issues, a deputy should
consider contacting the sheriff’s legal counsel or county attorney for
guidance about how to proceed.
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NOTE: Review with students the sample ("filled out")
summonses in the handout section. Students should of course
examine the party defendant(s), classifying each for proper
method of service. Students should be alert for special service
situations, such as summonses that have more than one
defendant (for example, "Whitewater Land Development
Associates and William Clinton"--partnership and natural
person on the same summons), and other summonses that
give rise to special service considerations. Instructors may
wish to add facts for discussion purposes. For example:

Role play that a student is attempting to serve the "Brady"
summons. Create illustrative hypotheticals for analysis and
decision-making (e.g., who is home when service is
attempted: defendant Mike only; Alice the housekeeper; 13year-old Greg; etc.).

With the "Chappaquiddick Construction" summons, you
may advise the students that a receptionist is the only
person present, all corporate officers are out of town on
business. Can the receptionist be served? What facts are
important? What questions might an officer direct to the
receptionist to determine whether she is a managing
agent? Apparently in charge? etc.

Assume the "Charles Faircloth" Magistrate Summons is a
summary ejectment action. Review with students how this
service differs from a standard summons. (Students may
ask how, in "real life," they will recognize this as a summary
ejectment summons as compared with other types of small
claims actions--by simply examining the complaint to see
that it is for "summary ejectment.")

Role play that while attempting the "Keith Burrows"
summons, defendant Burrows refuses to "accept" the
summons and closes the door. In the alternative, assume
Keith’s wife answers the door, states Keith is not home, and
that he instructed her not to accept any paperwork from
the sheriff.
Instructors may also wish to direct students’ attention to the
reverse (return) side of the summonses for discussion of how
to properly complete the return; whether special facts should
be added in support of the service attempted; etc.
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B.
Serving Subpoenas (AOC-G-100)
NOTE: Show slide, "Serving Subpoenas."
1. A subpoena is a legal process that commands a person to appear in
court at the appointed time. There are two kinds of subpoenas. One is
a subpoena to testify, which is an order to a witness to appear to
testify at a court proceeding or deposition.
The subpoena tells the witness the name of the court, title of the case,
and the date, time, and location where the witness is to appear. The
second is a subpoena to produce evidence (formally called a subpoena
duces tecum), which is an order to bring specified evidence (typically
documents) to a court proceeding. This subpoena tells the witness the
name of the court, title of the case, specific items to be produced, and
the date, time, and location of the court proceeding where the items
are to be brought. [G.S. 1A-1, Rule 45.]
2. The sheriff, a deputy, or any other person at least 18 years of age who
is not a party may serve a subpoena by delivering it to the person
named in the subpoena. Sometimes the attorney will serve the
subpoena and the sheriff will not be asked to serve it. However,
frequently the party will give the subpoena to the sheriff’s office for
service.
3. A subpoena to testify or to produce documents may be issued by a
clerk, judge, or magistrate. A subpoena to testify also is sufficient if
signed by an attorney or a party to the lawsuit, and a subpoena to
produce documents is sufficient if it is signed by the attorney
requesting it.
4. There is no time limit on the validity of a subpoena, but as a practical
matter the subpoena must be served before the time set for the
appearance of the person named. One of the difficult problems with
subpoenas is that often subpoenas for a large number of witnesses in a
case are given to the sheriff’s department two or three days before the
case is set for trial.
5. Service of subpoena to testify
a) The sheriff may serve a subpoena to testify by:
NOTE: Show slide, "Subpoena to Testify."
(1)
Personally delivering a copy to the person named on the
subpoena, or
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(2)
Telephone communication with the person named.
(3)
A subpoena may also be served by the party by mailing by
certified, signature confirmation, or registered mail, return
receipt requested.
b) Service by personal delivery. A subpoena to testify must be
delivered to the person named in the subpoena. It may not be left
with any person other than the person named.
c) Service by telephone communication
(1)
The sheriff may designate anyone who is at least18 years of
age and not a party to serve subpoenas to testify by
telephone communication.
(2)
The sheriff usually designates all deputies t serve this
process, but may also designate office employees or jailers
who are not sworn deputies to serve subpoenas.
(3)
The deputy must determine that he or she is speaking with
the person named in the subpoena and must tell the named
person the location, date, and time that he or she is
subpoenaed to appear to testify in the named case.
(4)
The deputy must talk to the person named in the subpoena.
Leaving a telephone message with a person other than the
person named is not valid service of a subpoena.
d) One issue that arises is when a deputy in County A has a
subpoena for an individual who lives or works in County B.
(1)
It would probably not be proper service for the deputy in
County A to telephone the person at location in County B to
serve the process. No case has answered this question, but it
is likely that the court would hold that the witness is served
in the county where he receives the telephone communication
and because that is not the deputy’s county, the deputy has
no authority to serve process there.
(2)
The person issuing the subpoena may send a copy of the
subpoena to the sheriff’s office in County B to have it served,
or it may be sent by the Clerk of Superior Court in the county
in which it was issued. County A could send a copy of the
subpoena to the sheriff of County B and ask him to serve it or
could fax a copy to County B and have a sheriff of County B
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serve it by telephone communication and then notify the
deputy in County A when and how that service was effected.
If there is not time for the foregoing, the best approach may
be to go ahead and attempt "service" by telephone and let the
witness know he/she is needed in court.
6. Subpoena to produce evidence may be served by:
NOTE: Show slide, "Subpoena to Produce Evidence."
a) Personally delivering a copy to the person named in the subpoena,
or
b) Mailing a copy by certified, signature confirmation or registered
mail, return receipt requested, to the person named in the
subpoena.
C.
(1)
It may not be left with any person other than the person
named in the subpoena.
(2)
Telephone communication is not proper for subpoena to
produce documents.
(3)
If the party wants service by certified o signature
confirmation mail, he or she will serve in that manner
without involving the sheriff.
Service of Certain Process Arising Out of Family Disputes
1. Child custody orders
NOTE: Show slide, "Child Custody Orders." Refer
students to handout, “Morris v. Morris.”
a) One of the most difficult orders that sheriffs must serve are ones
involving child custody matters. These orders arise out of district
court actions in which one parent is granted custody of the child to
the exclusion of the other parent, and the order to the sheriff is to
pick up the child and deliver him or her to the parent who is
granted custody.
b) Frequently, child custody orders will state which parent is entitled
to custody of the child and might even order one parent to deliver
the child or turn over custody to another parent. The sheriff should
not get involved in helping the parent get custody in those cases.
The sheriff should be involved only if the order specifically directs
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the sheriff or a law enforcement officer to take the child and
deliver custody to a particular person.
c) The order must be signed by a North Carolina district court judge.
(1)
The order is effective if issued by a NC judge anywhere in
NC; it need not be issued in the county in which the sheriff is
located.
(2)
The order is not effective if issued by a judge from another
state. Sheriffs should make sure that the order is from a
North Carolina court. It is not uncommon for a person to
come to the sheriff asking for a child to be picked up based on
an out-of-state order. To be enforceable in this state, the
person must get a NC district court judge to issue the order
pursuant to procedure set forth in G.S. 50A.
2. Domestic violence civil protective orders (AOC-CV-306)
NOTE: Show slide, "Domestic Violence Protective
Order."
a) Another frequent action in which deputies must serve process is a
civil action in which the plaintiff is seeking a domestic violence
protective order. The purpose of this lawsuit is to protect victim
(aggrieved party) from violence.
b) Definition
(1)
For purposes of this law, domestic violence means the
commission of certain acts (e.g., causing, attempting, or
placing persons in fear of bodily injury; sexual assault) upon
an aggrieved party by a person with whom the aggrieved
party has had a personal relationship.
(2)
The term "personal relationship" includes current or former
spouses, persons of opposite sex who live or have lived
together, parents and grand parents of a child, persons who
have a child in common, current or former household
members, or persons of the opposite sex who are in a dating
relationship. (A "dating relationship" is one wherein the
parties are romantically involved over time and on a
continuous basis during the course of the relationship.)
Definitions: Pro se = on his own behalf, without an
attorney
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Ex parte = upon application of the party bringing
the action, only one party (as opposed to both
being present)
c) Civil domestic violence protective orders are in addition to
criminal remedies, not instead of those remedies.
d) Procedure to begin a domestic violence action
(1)
Domestic violence actions are begun like other civil lawsuits.
The plaintiff files a complaint (AOC-CV-303) and a civil
summons is issued. What is different about this action is that
at the time the plaintiff files the complaint, he or she
automatically asks for a hearing within 10 day and may also
ask for an immediate ex parte hearing to grant a protective
order. An ex parte hearing means a hearing without the
defendant being notified and having an opportunity to
appear.
(2)
If the plaintiff requests an ex parte hearing, he or she will
usually be given a hearing immediately but must be given
one with 72hours. The ex parte hearing may be before a
district court judge or a magistrate if a judge I not available.
(Because the chief district court judge must authorize the
magistrates to hear ex parte domestic violence protective
orders, in some counties magistrates are authorized to hear
them and in other counties they are not.) The judge or
magistrate will determine whether to issue an ex parte
protective order to give the plaintiff immediate protection
from the defendant. Whether or not the judge or magistrate
issues an ex parte order, a hearing for a regular protective
order will be set within 10days.
e) Length of validity of protective orders
(1)
An ex parte order issued by a magistrate is good for the
shorter of 72 hours or the end of the next day on which the
district court is in session. The order itself has the specific
ending time on it. It is not enforceable after that time.
(2)
The length of time ex parte order issued by a district court
judge is valid is not clear. It is either good for 10 days only
like other temporary restraining orders, or it is valid until a
regular protective order is issued or one year, whichever
occurs first. The order itself has the specific ending time on
it. It is not enforceable after that time unless a new order
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extending the validity of the ex parte order has been entered
by a district court judge.
(3)
A domestic violence protective order is valid for one year and
is renewable for up to one additional year.
(4)
The law gives the judge or magistrate authority to grant any
relief to the victim that will protect him or her from violence.
It specifically provides that the order may direct party to
refrain from acts of domestic violence; grant possession of the
residence to plaintiff and exclude defendant therefrom;
require defendant to provide alternative housing for plaintiff
and children; award temporary custody of children subject to
custody rules; order eviction of defendant from residence and
assistance to victim in returning to it; order defendant to
make payments for support of child; order defendant to make
payments for support of spouse; provide for possession of
personal property of the parties; award costs and attorney’s
fees to either party; prohibit a party from purchasing a
firearm; order any party to attend an abuser treatment
program; and any other prohibition or requirement necessary
to protect a party or minor child.
f) Process served by sheriff
(1)
If no ex parte is granted, the sheriff will have the following
papers to serve on the defendant: a complaint for domestic
violence protective order, a civil summons, and a notice of
hearing on domestic violence protective order (AOC-CV305). These can be served in any way authorized for service
on a natural person.
(2)
If an ex parte order is granted, the sheriff will have the
following papers to serve on the defendant: a complaint for
domestic violence protective order, a civil summons, a notice
of hearing on domestic violence protective order (AOC-CV305), and an ex parte domestic violence protective order
(AOC-CV-304). These papers can be served in any manner
authorized for service on a natural person.
(3)
Enforcing a domestic violence protective order
Like other civil orders, if a defendant violates the order, the
plaintiff may seek to have a judge, clerk, or in some cases, a
magistrate, issue a show cause order as to why the defendant
should not be held in contempt for violating the order. In that
case, an order to appear and show cause for failure to comply
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with domestic violence protective order (AOC-CV-308) will
be issued. That order notifies the defendant when and where
to appear for a hearing on contempt. It must be served by the
sheriff by personal delivery to the defendant.
(4)
Parts of the domestic violence protective order may be
enforced in a completely different manner - by arrest by a
law enforcement officer and release upon meeting the
pretrial conditions set by a judge or a magistrate. A law
enforcement officer shall arrest and take a person into
custody without a warrant if the officer has probable
cause to believe that the defendant violated the
provisions of a domestic violence protective order
excluding the defendant from the residence or
directing the defendant to refrain from (1)
threatening, abusing, or following the other party, (2)
harassing the other party, including by telephone,
visiting the home or workplace, or by other means, or
(3) otherwise interfering with the other party; and if
the victim, or someone acting on the victim’s behalf,
presents the law enforcement officer with a copy of
the order or if the officer determines that such an
order exists and can ascertain the contents through
phone, radio, or other communication with
appropriate authorities. Officers should remember that
probable cause is probable cause and the definition does not
change for domestic violence calls. If the deputy has probable
cause to believe the defendant has violated the protective
order in one of those two ways, the deputy must arrest the
defendant and take him before a magistrate.
The magistrate will give the defendant his or her rights
and then will place the defendant in jail until a district
court judge sets conditions of pretrial release. If a judge has
not set conditions of pretrial release within 48 hours after
the arrest, the defendant must be brought back before a
magistrate who will then set conditions of pretrial release
and issue an order to appear and show cause for violation of
court order after arrest by officer.
Note: Recent changes to Chapter 50B willful violations of
any provisions of D-V Protective Order are now Class A-1
misdemeanors.
Note: As of February 1, 2000, requirements for officers to
arrest for contempt or show cause orders will be repealed. As
of December 1, 1999, officers are required to make
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warrantless arrests for violating protective orders provisions.
A NOTE ABOUT OUT-OF-STATE DOMESTIC VIOLENCE
ORDERS: If presented with an out-of-state domestic violence
protective order (by whatever name), an officer must enforce
after December 1, 1999, when there is probable cause to
believe a violation has occurred.
After February 1, 2000, an officer may rely on a copy and the
victim’s statement that the order is still valid. (Between
December 1, 1999 and February 1, 2000, check on its validity
in the same manner as previously used.)
Note: As of December 1, 1999, no registration process is
necessary and out of state orders are enforceable in the
same manner as North Carolina orders.
(5)
Emergency assistance (G.S. 50B-5)
A person who alleges that he or she has been the victim of
domestic violence may request the assistance of a local law
enforcement agency. The agency shall respond to the request
for assistance as soon as practicable. The officer may take
whatever steps are reasonably necessary to protect the
complainant from harm, transport to magistrate’s office,
hospital, etc., and accompany complainant to residence so
that he or she may remove food, clothing, medication, and
such other property as is reasonably necessary to enable
complainant and any minor children to remain elsewhere
pending further proceedings. In providing assistance, no
officer may be held criminally or civilly liable for reasonable
measures taken under the authority of 50B-5.
D.
Prejudgment Remedies
NOTE: Show slide, "Prejudgment Remedies."
A prejudgment remedy is the method used to enforce a right, redress an
injury, prevent a violation of a right or compensate for a violation of
rights before a final judgment is decided in a civil action. Different
remedies have been developed to deal with different circumstances.
There are four basic remedies provided under North Carolina law. They
are: attachment, garnishment, claim and delivery, and restraining orders
or injunctions. There are other more specialized remedies which may be
obtained, but these are the most common. During the next period of
instruction we will cover each of these remedies briefly to familiarize you
with the basic requirements of each of them.
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1. Attachment
The first prejudgment remedy we will discuss is attachment.
Attachment is a court order authorizing the seizure of real or personal
property sufficient in amount to satisfy a judgment obtained for a
stated amount. The purpose of an attachment is primarily to provide
security for the satisfaction of any judgment awarded the plaintiff. An
attachment is issued to supplement or aid a civil action and not to
replace the action. The action must be completed or the order of
attachment will be dissolved. The nature of attachment is like a
preliminary execution against property. The property seized must be
held in the custody of the law. Attachment does not give the plaintiff a
right to possession of any of the property seized. The only right the
plaintiff has under an order of attachment is aright to have the
property sold and the proceeds applied to the satisfaction of his
judgment. Attachments can only be issued at the beginning of a civil
action or during the trial of the action. An attachment may not be
issued or enforced after a final judgment has been reached in the
action.
The seizure of property under an order of attachment will also give
the court authority to decide a judgment even though the defendant
was not served personally and did not appear in court. The property
levied on under attachment will then be applied to the satisfaction of
the judgment. This is intended to protect creditors from defendants
who obtain money or property and then flee to avoid payment.
a) Issuance of order of attachment
The remedy of attachment is not available in all civil actions or all
courts. The plaintiff can obtain an order of attachment in the
following types of actions:
(1)
An action to secure a judgment for money;
(2)
An action for alimony;
(3)
An action for maintenance and support; or
(4)
An action for support of a minor child.
The state and federal governments can use attachment to collect
unpaid taxes and assessments.
The only officers who may issue an order of attachment are the
clerk of the court in which the action is commenced or a judge of
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the appropriate trial division of the District or Superior Court. A
magistrate cannot issue an order of attachment.
The plaintiff requests the issuance of an order of attachment by
filing an affidavit. (Refer to AOC-CV-300)
An attachment will only be issued if the defendant is found to be
one of the following:

a nonresident of the State of North Carolina;

a foreign corporation (any corporation chartered outside the
State of North Carolina);

a domestic or North Carolina corporation whose officers cannot
be found in this state after a reasonable search;

a resident of North Carolina who intends to defraud his
creditors or avoid service of summons by leaving or preparing
to leave North Carolina or by concealing himself;

a person or domestic corporation who intends to defraud
creditors by removing or preparing to remove property from
North Carolina or by assigning, disposing of or hiding property
or is preparing to assign, dispose of, or hide property.
Attachment is designed to protect creditors by seizing and holding
property in the custody of the law to prevent a defendant from
running out on his just debts.
Before the court issues the order of attachment, the plaintiff
must furnish a bond in an amount set by the court. The purpose
of the bond is to protect the defendant from damage or loss as a
result of the attachment. Bond must be at least $200.00 and
taken by the Clerk of Court or Judge.
b) Levy or seizure of property under order of attachment
The order of attachment must comply with the statutory
requirements of G.S. 1-440.12 before it can be enforced. Before
seizing property under an order of attachment, the sheriff or his
deputy must note on the order the date it was received by his
department and then check for the following items on the order of
attachment: (AOC-CV-301)
NOTE: Show slide, "Valid Order of Attachment."
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
The name of the court in which the action has been filed
(District or Superior Court of a particular county);

The title of the action (names of the parties);

Issued in the name of the State;

Directed to the sheriff of a named county (that county must be
his county);

A statement that an affidavit in attachment has been filed with
the court in this action;

A statement that the required attachment bond has been given
to the court and that the court is satisfied that the facts stated
in the affidavit are true;

Direct the named sheriff to attach and safely keep sufficient
property of the defendant's to satisfy the plaintiff's demands
plus costs and expenses;

A command that the order of attachment be returned to
the issuing court within the time allowed by law;

The date of issuance of the order;

Signatures of the clerk or issuing judge.
Unless the order contains all of these items, the order is not valid
and cannot be enforced.
After confirming that the order of attachment complies with the
above requirements, the deputy must proceed to locate and
identify property which would be subject to levy and sale under
this order. G.S. 1-440.4 states:
NOTE: Show slide, "G.S. 1-440.4."
"All of a defendant's property within this State which is subject
to levy under execution, or which in supplemental proceedings
in aid of execution is subject to the satisfaction of a judgment
for money, is subject to attachment under the conditions
prescribed by this Article."
Thus, to determine what property may be levied on, the deputy
must look at the law of executions and supplemental proceedings.
G.S. 1-315 lists the types of property subject to levy and sale
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under execution.
Officer serving Orders of Attachment may levy on personal
property or place a lien on real property.
NOTE: Show slide, "Examples of Property Subject to
Attachment."
The seizure of property under a court order is called "levy." To levy
on property requires collecting, gathering, seizing and taking up of
property. The purpose of a "levy" is to obtain money by the seizure
and sale of property. The rights of the parties in the property are
established at the time of the levy.
Merely levying on property will not affect the defendant's right of
ownership or title in the property. The defendant retains title to
the property until after a sale is held under legal authority. The
levy on the property gives a plaintiff a lien or encumbrance on the
property which can be enforced by a sale.
The duty of the sheriff under an order of attachment is to execute
the order within the time allowed. An order of attachment is
executed by taking property of the defendant into the actual legal
custody of the officer. To make a valid levy, the actions of the
officer must put the property out of the control of the defendant.
Improper levies will not affect the property in any way and will
also result in liability for the officer who attempted to make a valid
levy.
G.S. 1-440.18 gives the requirements for making a valid levy on
personal property found in the defendant's possession. Personal
property must be physically seized and taken into the possession of
the levying officer. Wherever possible, personal property should be
removed to a safe storage area to perfect the levy. If the property
cannot be removed without substantial injury, expense or material
damage, the levying officer must find another method of exercising
control over the seized property. Usually property of this nature
will be valuable enough to justify appointing a keeper or posting a
guard to protect the property. Property which has been levied on
should never be left in the custody of the defendant. The deputy
has failed to properly assert control over property left in the
custody of the defendant. There is no valid levy in such cases.
An order of attachment gives the sheriff a special right of
possession in any property seized under a valid order. This right of
possession only authorizes the sheriff to keep the property safe in
his custody until a court order is issued authorizing some other
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action. The special right of possession is even more limited when
real property is involved. The sheriff has the right to seize the
property and hold it until an inventory can be completed. There is
no right to maintain possession of real property and it is not
necessary to protect the levy.
G.S. 1-440.17 gives the requirements for a valid levy on real
property. Real property levies are made by endorsing on the order
of attachment or attaching a statement showing that the sheriff
has levied upon whatever right, title, or interest the defendant
owns in described real property. The statement must also
describe the real property in sufficient detail to identify it clearly.
In addition to making a return, the sheriff must also certify his
levy and the names of the parties to the clerk of the superior
court of the county in which the land lies. Under this statute, the
sheriff does not even have to see the property to make a valid
levy.
The differences in the methods of levy are a result of the nature of
the property involved. Personal property is easily movable and
usually has a personal nature. Some examples are: motor vehicles,
animals or livestock, jewelry, furniture, lumber, merchandise,
shares of stock, boats or ships and mobile homes. Any type of
property which is not real property is considered to be personal
property. As you can see, if these items are not seized, they will
probably be unavailable when needed to satisfy a judgment. The
defendant could still transfer title before a judicial sale; however,
anyone who purchased from him would have actual notice of the
plaintiff's claim when he asked for possession.
Real property, generally, is not movable. Houses and land are
the clearest examples of real property. There are other types of
property which are considered to be real property. Anything
which has been erected or is growing on the land is real
property. Items intended to be permanently attached to the land
are real property when attached. Some examples of real property
are: houses, barns, buildings, fences, wells, trees, crops and
permanent fixtures.
The sheriff has the discretion to determine how much property
should be levied on to satisfy the amount stated on the order of
attachment for the plaintiff's claim. Enough property should be
seized to satisfy that amount plus all fees and costs. Keep in mind
that sheriff's sales ordinarily bring only a fraction of the actual
value of the property when determining the property on which you
will levy. If your original levy is insufficient, additional levies may
be made as long as the time for return has not expired. If a return
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has been made, the court may issue an alias or pluries order of
attachment to authorize the seizure of additional property.
Where more than one attachment has been received against the
same defendant, the sheriff should execute and levy them in the
following orders:


G.S. 1-440.33(b) - for real property
G.S. 1-440.33(e) - simultaneous delivery
c) Care of attached property
The sheriff has a legal responsibility to provide for the proper care
and custody of any personal property he seizes under an order of
attachment. He may demand in advance the necessary expenses
for this care and custody and may demand additional expenses as
they are needed. If the plaintiff refuses to pay these expenses,
the sheriff would be justified in returning the order of attachment
unexecuted. See G.S. 1-440.35.
Plaintiffs often find it hard to comprehend that the sheriff is not
working for them when he levies on property under their order of
attachment. The attachment is a court order and the sheriff is a
court officer. He must comply exactly with the court order or be
subject to liability. He cannot release the property back to the
defendant just because the plaintiff feels the costs are too much.
The plaintiff must obtain a court order modifying or dissolving
the order before the sheriff can legally release the property.
d) Sheriff's return
Under G.S. 162-14, the sheriff has a duty to execute and make due
return of writs and orders delivered to him. How well an order is
executed is unimportant unless the order is returned to the court.
The sheriff's return is necessary to protect the validity of the levy.
The return advises the court that a levy was made on a certain
date and time on described property.
Note: Again, the deputy should answer the following questions,
who, what, where, how, and when.
To make a valid return, a deputy must perform two actions: 1)
write out on the order exactly what the officer did, listing the
property levied on and the dates of the levies; and, 2) actual
delivery of the original of the writ or order to the clerk of superior
court of the issuing county. If no levy was made, the return must
state the reasons for the failure to levy. See G.S. 1-440.16.
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The return must contain the following information to be valid:
NOTE: Show slide, "Requirements for Valid Return
on Order of Attachment."
(1)
The date the order was received by the sheriff's department.
(2)
The date the defendant was served, if he could be served.
(3)
A clear and particular description of the property under levy.
(4)
The date or dates of the levy (levies) on the property.
(5)
The date the writ or order was returned to the clerk's office.
(6)
The name of the sheriff and the county in which the order
was executed.
(7)
The signature of the deputy sheriff who executed the writ or
order and is making the return.
(8)
If real property is attached, the return should give the
Judgment Docket Book and Page where the Certificate of
Levy was filed.
****The levy on property and return of the order of attachment
should be completed within ten (10) days after the date the order is
issued. A levy made after the expiration of ten (10) days will not be
valid.
2. Garnishment
Garnishment is a very specialized remedy. An order of garnishment
may only be issued in actions where an attachment has been issued.
The purposes of the garnishment are to discover and subject to
attachment tangible personal property of the defendant not in his
possession and any indebtedness or other intangible personal property
belonging to the defendant.
NOTE: Show slide, "Garnishment."
In North Carolina, garnishing people’s wages is not legal except for
child support and taxes. This portion of the lesson plan discusses
garnishing property.
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A garnishment is a warning to a third person who has possession of
property owned by a defendant or who owes the defendant a debt not
to pay the money or deliver the property to the defendant. The third
person is ordered to appear before the court and show what property
of the defendant's he possesses.
Attachment can only apply a claim on property in the possession of the
defendant and owned by him. Garnishment will reach property owned
by the defendant but possessed or held by third persons. Attachment
requires either seizure and custody or asserting control over the
property. Garnishment does not require seizure or control. The
property will remain in the possession of the third person until the
scheduled hearing. If the party named as "garnishee" pays the
defendant or delivers the property to the defendant, he may be held
liable to pay to the court either the full amount due on the judgment
awarded or the value of the property, whichever is less.
NOTE: Show slide, "Garnishee."
The "garnishee" is the third person who has property of the
defendant in his possession. The garnishee may be a natural person,
a firm, a business, or a corporation. A garnishee is notified of his
responsibilities by the service of a summons to garnishee.
a) Issuance of garnishment
A garnishment proceeding is begun just like an attachment. A
summons to garnishee is issued either at the same time an order of
attachment was issued or at any time after the issuance of the
attachment but prior to final judgment in the principal action.
Summons to Garnishees must be issued to each person designated
by the plaintiff. On the back of the Summons to Garnishee is a
Notice of Levy. This notice must be filled out and signed by the
sheriff or his deputy at the time the Summons to Garnishee is
served. (Refer to AOC-CV-302)
b) Levy of garnishment
A levy under an order of attachment is usually carried out by
seizing and maintaining custody of the property in question.
Note: Levy on real property is not made by taking possession of
property except for purposes of inventory.
Levy of a garnishment is governed by G.S. 1-440.25. These levies
are very simple to carry out. Physical seizure and custody of the
property in question is not required. A levy in garnishment is
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made by delivering to the garnishee copies of each of the following:
(1)
The order of attachment,
(2)
The summons to garnishee, and
(3)
The notice of levy (found on the back of summons to
garnishee).
For corporate garnishees, levy must be made by delivering copies
of the above three processes to the president (or other head),
secretary, cashier, treasurer, director, managing agent or local
agent of the corporation. A local agent is anyone receiving or
collecting money on behalf of the corporation.
c) Return of garnishment
To properly return the processes in a garnishment, the sheriff
must complete the return sections on both the order of attachment
and the Summons to Garnishee/Notice of Levy. An order of
attachment should be served, levied, and returned within ten (10)
days of the issuance date. The garnishment processes must be
completed within the same time period. If the garnishee cannot be
located within the allotted time, the sheriff must return the
processes to the clerk of the issuing court and give the reasons for
the failure to serve and levy.
3. Claim and delivery
Claim and delivery is a process which involves two different
processes—a Notice of Hearing and an Order of Seizure. Each process
is served differently, at different time during a civil action.
The purpose of claim and delivery is to claim the immediate delivery
of a certain specified personal property. The defendant named has
either wrongfully taken or is wrongfully withholding the property in
question from the rightful owner or possessor. To obtain this remedy,
the plaintiff must bring an action to recover the possession of personal
property. The possession given by this remedy is temporary and may
be changed by a final judgment. An order of seizure in claim and
delivery may be obtained at any time before final judgment for the
recovery of possession of personal property not real property.
a) Issuance of order of seizure in claim and delivery
To claim delivery of property, the plaintiff must meet certain
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statutory requirements. The first requirement is the filing of an
affidavit requesting a hearing under G.S. 1-473. The affidavit
must contain statements showing: (Refer to AOC-CV-200)
(1)
That the plaintiff owns or has a lawful right of possession to
the property claimed;
(2)
A particular description of the property claimed;
(3)
That the defendant is wrongfully detaining the property;
(4)
The cause of the wrongful detention, if known;
(5)
That the property has not been taken for taxes, assessments,
fines, execution, or attachment (If the property was seized
under one of these statutes, the plaintiff must show it was
exempt from seizure.);
(6)
The actual value of the property.
Only persons who have a right of ownership or possession can
obtain this remedy. The action for possession must be brought
against the actual party in possession of property to be effective.
Claim and delivery will not reach property in the hands of third
persons unless they are shown to be agents of the defendant, such
as an employee or the defendant's wife or children.
After the plaintiff files his affidavit, the clerk issues a Notice of
Hearing to be served on the defendant. The notice of hearing sets
a time and place for a hearing before the clerk which must be at
least ten (10) days from the date the notice was served. This
notice is the first legal warning the defendant has of the action.
(Refer to AOC-CV-201)
The notice must be served by one of the methods authorized for the
service of a civil summons. Contrary to the other processes, a
deputy should read to the person served the "warning to
defendant" found at the bottom of the notice of hearing. It may be
a good policy to read this warning to the defendant; the defendant
cannot later claim he was not notified if he damages or disposes of
the property described.
Upon receiving a Notice of Hearing, the sheriff or his deputy
should immediately check the date set for the hearing.
Remember service must be made at least ten (10) days prior to
the hearing date. By checking this date, the deputy will know
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when the notice must be returned to the issuing court. Deputies
should not take the responsibility on themselves to change the
hearing dates even with a verbal or written authorization from
the clerk. This responsibility is one of the duties of the clerk of
superior court and should be performed by his office.
After the hearing has been held (if the plaintiff is given temporary
possession), the plaintiff must give a written undertaking (bond).
The undertaking must be payable to the defendant and signed by
one or more sureties binding them to pay an amount equal to
double the value of the property to be seized. The sureties must be
approved by the sheriff, not the clerk. If the sureties are not
sufficient, the sheriff becomes liable as a surety. The sheriff should
always personally review the plaintiff's undertaking and approve
the sureties if possible. The purpose for the undertaking is to
protect the defendant by requiring the plaintiff to give a secured
promise that the property will be returned unharmed if the
defendant wins a judgment. The defendant is also entitled to
recover any damages he may have from this undertaking. Until
this undertaking is given and approved, the sheriff cannot execute
the order of seizure.
b) Order of seizure in claim and delivery
The most important part of the remedy of claim and delivery is
the command to seize property better known as the Order of
Seizure in Claim and Delivery. (Refer to AOC-CV-203)
The first duty a deputy has upon receiving the order is to
thoroughly investigate the sureties named on the Order of Seizure.
If the sheriff approves the sureties then the deputy should proceed
to promptly take the described property into his custody. The
property to be seized will be described in the affidavit. A copy of
the affidavit must be attached to the order of seizure unless the
property is described on the face of the order of seizure. The
property description given must be sufficient to distinguish and
identify the property from any other property of like kind
possessed by the defendant. If the property cannot be identified
from the description given, the sheriff should not seize the
property. Sometimes the defendant will identify the property by
admitting that this property is the plaintiff's. Do not rely on an
identification by the plaintiff unless s he demonstrates a personal
knowledge of the property. (Finance companies usually never
seethe property before it is pledged as security so how can they
identify it.) However, plaintiffs who sell this type of property can
help with the identification.
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To properly execute an order of seizure in claim and delivery, the
sheriff must take the property described and retain it in his
custody. The property in question may only be seized if it is in the
possession of the person named on the order or his agent. The
property could not be legally taken from a third party who has no
notice of the action or possesses an interest in the property
superior to or separate from the plaintiff's.
The only type of property which may be seized in claim and
delivery is personal property. Personal property is property of a
personal or easily movable nature. Some examples of personal
property are: motor vehicles, animals, harvested crops, cut
timber, boats or ships, clothing, furniture, jewelry, merchandise,
shares of corporate stock, bank accounts, patents, copyrights,
books and other property of like kind.
c) Time limits in claim and delivery
There is no stated time limit given for executing an order of
seizure after issuance; however, certain orders described below
expire 60 days after issuance.
NOTE: Show slide, "Time Limits in Claim and
Delivery."
"Upon the receipt of the order from the clerk with the
plaintiff's undertaking, the sheriff shall forthwith take
the property described in the affidavit, . . ." G.S. 1-476
[Emphasis added].
"Forthwith" is defined by Black's Law Dictionary as requiring
immediate action, to act without delay, or to act promptly and
with reasonable dispatch. The order thus must be executed
within a reasonable time under the circumstances of the case.
This means as soon as possible or at the first opportunity. Do not
delay on these orders. They are most often issued to prevent the
defendant from damaging or disposing of the property described.
However, when delivery of property is claimed from a person who
has defaulted on payments under a conditional sales contract, a
purchase money security agreement or on a loan secured by
personal property, the order of seizure expires 60 days after it is
issued. This means that it is no longer enforceable by seizure of
property and should be returned unexecuted to the clerk of the
issuing court. G.S. 1-474(b).
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The defendant does not have to be served with a copy oft he order
of seizure before the deputy takes the described property. But, he
must be served with copies of the affidavit, order of seizure and
undertaking as soon as possible. The language of the statute
requires service "without delay." The service must be made either
by delivering copies to the defendant if he can be found or to his
agent, if the property was in his possession. If service cannot be
made by either of these methods, copies of the above-named
processes may be left at the usual place of abode of either the
defendant or his agent with some person of suitable age and
discretion. See G.S. 1-476.
The importance of serving these copies as soon as possible is
illustrated by N.C. Gen. Stat. 1-477. This statute states that the
defendant has three days after the service of a copy of the
affidavit and undertaking to notify the sheriff he excepts
(objects) to the sufficiency of the sureties. Since the sheriff is
responsible for the sufficiency of the sureties, he will remain
liable for the sureties until three days have passed after the
defendant was served with the affidavit and undertaking. If the
defendant objects to the sureties, he can regain possession of
the property.
If the defendant objects to the sureties, he has two choices:
(1)
Challenge sufficiency of sureties who then must justify, or
(2)
Put up bond to have property returned pending outcome of
lawsuit.
To obtain the return of the property, the defendant must give an
undertaking equal in amount to double the value of the property
and payable to the plaintiff and given to the Sheriff. If no
undertaking is given within three days after the seizure of the
property and service of the affidavit, order and undertaking on the
defendant, the property must be delivered to the plaintiff. The
sheriff is responsible for the sufficiency of the sureties on a
defendant's undertaking and may retain the property until they
satisfy the court on their sufficiency. G.S. 1-478 and 1-479.
****Warning: Under G.S. 1-484, the sheriff must return the
undertaking, affidavit and order of seizure with his actions stated
to the issuing court within ten (10) days after seizing the property
described.
d) Care and seizure of property
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Claim and delivery is the only prejudgment remedy which
specifically authorizes the use of force to execute the order of
seizure. G.S. 1-480 states:
NOTE: Show slide, "G.S. 1-480."
1-480. Property concealed in buildings. If the
property, or any part of it, is concealed in a building
or enclosure, the sheriff shall publicly demand its
delivery. If it is not delivered he must cause the
building or enclosure to be broken open, and take the
property into his possession. If necessary, he may
call to his aid the power of his county, and if the
property is upon the person the sheriff or other
officer may seize the person, and search for and take
it.
Under the common law, a sheriff was prohibited from breaking
and/or entering a dwelling forcibly to serve or execute any civil
process. This statute created an exception to the general
prohibition against forcible entry of a dwelling which is limited to
claim and delivery only. However, if force is necessary to execute
the order of seizure, the sheriff would still only be authorized to
use the amount of force reasonably necessary to obtain possession
of the property. Deadly force can never be used except in selfdefense.
Before breaking into a building, the deputy should have reasonable
grounds to believe that the property described is on the premises.
The property must be concealed in some type of building or
enclosure. The concealment intended here is merely location not
that the property be hidden. If the property is located inside a
house or fence and delivery is refused, this statute authorizes
breaking into the enclosure to take possession of the property. The
sheriff may call the power of the county to his aid to execute this
order.
If the property is concealed on the person of a named
individual, the sheriff or his deputy may seize the person and
search for and take the property.
The statute requires the sheriff to publicly demand the delivery of
the property. If the property is not delivered, the sheriff must
cause the building or enclosure to be broken open and take the
property into his possession. This is the only authorization to
break and enter to execute a civil process found in the General
Statutes.
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After seizing the property, the sheriff must keep the property in a
secure place for three days after the service of the affidavit,
undertaking and order of seizure on the defendant. The property
must be properly cared for. If the property is damaged while in the
custody of the sheriff, the sheriff could be liable if he failed to
provide ordinary care and attention. The sheriff must receive his
fees for taking the property and his necessary expenses for keeping
it before he can be required to deliver the property to the person
entitled thereto.
The plaintiff cannot legally obtain possession of the property and
then dismiss his action. If the action is dismissed before final
judgment, the defendant is entitled to recover possession of the
seized property and may also recover damages from the plaintiff
for the wrongful seizure.
The sheriff is not the agent of any of the parties involved. He is an
officer of the court bound by law to enforce the orders of the court.
He must carry out the court order in such a way that the least
amount of harm is done to each of the parties involved.
e) Summary
Claim and delivery is a unique process in the laws of North
Carolina. It is the only civil process which specifically requires
the sheriff to break and enter to carry out a seizure of personal
property. The sheriff should be extremely careful in executing
these orders because of the importance of his duties in seizing
the property and approving the bonds.
E.
Postjudgment Remedies
Postjudgment remedies are the remedies which are available only after a
decision or final judgment has been reached in a civil action. They are
the courts' method of enforcing its judgment or decision. Without them,
there would be no way to force an uncooperative defendant to comply
with the court's decision. To execute a judgment is to complete, fulfill or
carry it into operation and effect. The most common postjudgment
remedy is called "execution."
If the debtor has filed for bankruptcy, the deputy should not proceed
with levy or other attempts to collect on the writ of execution. The
deputy should return the writ to the clerk unsatisfied, stating in the
return that debtor has filed for bankruptcy. The deputy may also wish
to contact the plaintiff to advise him of this circumstance. Either the
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deputy or the plaintiff can contact the bankruptcy court by phone to
confirm the filing status of the debtor (in the event there is doubt about
whether debtor is being truthful - occasionally debtors will mislead
creditors and deputies about bankruptcy filings).
If the deputy has already levied on property before discovering the
bankruptcy filing, the deputy should “unlevy” (return) any property so
taken.
1. Types of executions
NOTE: Show slide, "Types of Executions."
There are three basic types of executions available in our courts.
a) Executions Against Property
Executions Against the Property are just called “executions” and
are for satisfaction of a money judgment. The sheriff is to seize
personal property and encumber real property to sell to get the
money for the judgment. That is why they are called executions
against the property.
b) Executions Against the Person
Executions Against the Person is a “civil order for arrest” and is
very specific in nature and rare. Officers serving these may look
at G.S. 303 and 313 for guidelines for service. They carry the
weight of a misdemeanor warrant and are valid for 90 days since
they are executions.
c) Executions for Delivery of Specific Property
Executions for Delivery of Specific Property are called “Writs of
Possession for Real Property” and “Writs of Possession for
Personal Property.” Both of these require the sheriff to take
property away from a judgment debtor (defendant) and give it back
to a judgment creditor (plaintiff).
The most frequently issued type of execution is issued against
property which requires levy on and sale of personal or real
property to satisfy a judgment. Executions for Delivery of Specific
Property are the second most frequently issued type of execution.
These executions are better known as writs of possession for real
or personal property and summary ejectments. They are carried
out by seizing certain specifically described property and
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delivering it to a named person. The third type of execution is
very rare. An execution against the person requires the sheriff to
arrest the judgment debtor and hold him in custody until he pays
the execution or complies with other statutory requirements for
release. G.S. 1-303 and 1-313.
Most judgments are enforced by an execution. Judgments which
require performance of some act other than the payment of money
or delivery of specific property are enforced by serving a certified
copy of the judgment upon the person or officer against whom it
was given. If the person refuses to obey the judgment, he may be
punished under the contempt of court provisions. See G.S. 1-302.
2. Issuance of execution
The only court officer given the authority to issue an execution on an
unsatisfied judgment is the clerk of superior court or his deputy or
assistant clerk. [McKethan v. McNeill, 74 N.C. 663 (1876)]. Under G.S.
1-305, the clerk of superior court must issue executions on all
unsatisfied judgments rendered in his court when requested by the
person entitled to recovery and upon payment of the necessary fees.
No execution is valid without the signature of the clerk or the deputy
or assistant clerk. To be considered issued, the execution must be
signed by the clerk and delivered to the sheriff or some person to give
to the sheriff. Executions which are to be sent to another county must
be sealed with the official seal of the issuing court before they may be
enforced. Before an execution can be issued to another county, the
judgment must be docketed in the county to which the execution will
be issued. Executions may be issued at the same time to as many
different counties as necessary.
Only the court where the judgment was rendered has the
authority to issue an execution to enforce a judgment.
Executions must be returned to the issuing court by the sheriff.
Executions for the delivery of specific property must be issued to the
sheriff of the county where the property is located. Executions cannot
be issued more than ten years after the date of the rendering of the
judgment.
Executions cannot be issued until at least ten (10) days after the
judgment is entered and a notice of the right to have exemptions
designated has been served on the defendant .Executions may be
issued without service of the notice when the debtor's exemptions
have already been designated or the clerk determines that the
exemptions do not apply to this claim.
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3. Contents of an execution
a) Before proceeding to levy on property under an execution, the
sheriff or his deputy must make sure that the order is valid and
enforceable in his county. Upon receiving an execution the sheriff
should check the execution for the statutorily required contents
and the other steps required for validity.
NOTE: Show slide, "Checklist for Validity of Executions."
(Refer to form AOC-CV-400, "Writ of Execution")
b) CHECKLIST FOR VALIDITY OF EXECUTIONS
A deputy sheriff should check all executions for the following
items before proceeding to enforce the execution by levy:
(1)
Check for the name of the county from which the execution
was issued.
(a) Executions issued from other counties must be directed
to the sheriff or coroner of your county. (The same thing
is true of executions issued by your clerk.) G.S.1-308, 1313.
(b) Executions from other counties must be sealed with the
seal of the issuing court. G.S. 1-303.
(c) Executions must be issued by the clerk of the court
where the judgment was decided. G.S. 1-305, 1-307.
(d) A transcript of the judgment must be docketed in the
county where the execution is to be enforced. G.S. 1-308.
(2)
Check for the date of issuance. (G.S. 1-310)
(a) No execution may be issued until ten (10) days have
passed after the entry of the judgment.
(b) The execution must be returned to the issuing court
within ninety (90) days of the date of issuance. G.S. 1307, 1-310.
(c) No execution may be issued more than ten (10) years
after the date of the rendition of the judgment. G.S. 1306.
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(3)
Check for the signature of the issuing official which must be
the clerk, deputy clerk or assistant clerk of superior court of
the issuing county. G.S. 1-303, 1-313.
(4)
The execution must refer to the judgment and give the
following information:
(a) The name of the county where the judgment roll or
transcript is filed;
(b) The names of the parties;
(c) The amount of the judgment;
(d) The amount actually due on the judgment(or sufficient
information to compute the amount actually due);
(e) The date and time of the docketing of the judgment in
the county to which the execution is issued.
4. Levy on property
The purposes to be served by the issuing of an execution are
determined by the type of execution issued. An execution against
property (form entitled "Execution") requires the sheriff to satisfy the
judgment by levying on and selling the personal and/or real property
of the judgment debtor. An execution against the person (Body
Execution) requires the sheriff to arrest the judgment debtor and
commit him/her to jail until he/she pays the judgment or is released or
discharged according to law. The execution for delivery of specific
property(Writ of Possessions) requires the sheriff to seize certain
specifically described property and deliver possession to the party
named by the court. This execution may also require the sheriff to
satisfy any costs.
a) Property subject to levy (for money executions)
Any execution to satisfy a money amount on a judgment will
require a levy on and sale of property. To make a valid levy on
property, the sheriff and his deputies must know what property is
subject to levy and how to protect their levy against other claims.
The laws of North Carolina specify certain categories of property
which may be levied on under an execution and they also exempt
certain property from execution.
G.S. 1-315 lists the seven categories of property which are
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generally subject to levy and sale under execution. Officers may
levy on tangible or intangible personal property or encumber real
property.
NOTE: Show slide, "Property Subject to Sale Under
Execution."
These categories include items such as: houses, land, mobile
homes, furniture, jewelry, household appliances, books, clothing,
tools, boats, ships, farm equipment, domestic and farm animals,
farm produce, lumber or cut timber, industrial or business
machinery, corporate stocks and bonds, real estate leases,
negotiable instruments and many more types of property.
To protect residents of this State from zealous creditors who might
take everything a debtor had, the legislature created certain
categories and amounts of property a debtor may keep for the
benefit of himself and his family. They are found in G.S. IC-1601:
Exemptions are claimed by the sheriff serving a “Notice of rights to
have exemptions designated” on the defendant. The defendant
must fill out these papers, claiming exempt what property he has
that fits into one of the legal categories. When the execution is
issued, the Clerk of Superior Court will notify the sheriff through
an order attached to the Execution as to what property is claimed
that the sheriff cannot levy or lien.
There are two types of exemptions—Constitutional and Statutory.
Examples of statutory exemptions are listed below.
NOTE: Show slide, "Property Exempt from
Execution."
Property
Real or Personal Property Used as a
residence
One Motor Vehicle
Household Goods and Furnishings held
primarily for personal, family or
household use
Additional amount of $750.00 for each
dependent up to four
Tools of the Trade
Life Insurance as provided in Art. X,
Sect. 5 of N.C. Const.
Professionally Prescribed Health Aids
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$10,000.00
1,500.00
3,500.00
3,000.00
750.00
Unlimited
Unlimited
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Compensation for Personal Injury or
Wrongful Death of person supporting
debtor
If no residence claimed, may claim
Unlimited
3,500.00
miscellaneous exemption in any
property
IRA's
Unlimited
However, there are certain types of cases which do not
allow any exemptions. Some examples are:
NOTE: Show slide, "Claims Allowing No Exemptions."

Claims of United States or its agencies as provided by
Federal law

State or local government claims for taxes, appearance
bonds or fiduciary bonds

Laborer's liens on specific property affected

Mechanic's liens on premises affected

Contractual security interests in the specific property
affected, except for nonpurchase, nonpossessory money
security interests in debtor's household goods.

Statutory liens on property affected

Child support, alimony or equitable distribution award
orders
b) Performing a levy
The first step in the actual levy on property under an execution is
to determine if the debtor has any property. The next step is to
decide what, if any, of his property will be subject to levy and sale.
Only property owned by the judgment debtor may be levied on and
sold under the execution.
The purpose of the levy is to appropriate certain property to
satisfy the court order. The levy creates alien or claim on the
property effective on the date the levy is made on personal
property. Different types of property require different methods of
levy. The sheriff must attempt to locate and levy on any persona
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property available before proceeding against real property. [See
G.S. 1-313(1)]
5. Sale of property for money executions
After completing the levy on property, the sheriff begins his
preparations to hold the execution sale. An execution sale is
defined as:
NOTE: Show slide, "Execution Sale."
A sale of property by a sheriff or other officer made pursuant to
an execution.
The sheriff is given the authority to hold this sale by the North
Carolina General Statutes and must follow the procedures set in the
statutes exactly. If the sheriff is unsure how to proceed in a given
situation, the clerk of superior court who issued the execution has
authority to determine the procedural details to be followed. G.S. 1339.42.
a) Preparing for sale
The first step in preparing to hold an execution sale is to begin
advertising. G.S. 1-339.52 and 1-339.53 give the requirements for
advertisement of an execution sale. Real property sales must be
advertised by posting a notice of sale at the courthouse door and by
publishing the notice in a newspaper for two consecutive weeks.
The defendant must also be served a copy of the notice at least 10
days before the sale for real property sales only. Notices of sale for
personal property are simply posted at the courthouse door at least
ten (10) days preceding the date of sale. A sale which is not
properly advertised following the statutory requirements is void
and will not transfer title to any property.
The notice of sale must be prepared by the sheriff or his agent
and must contain the following:
NOTE: Show slide, "Notice of Sale."
(1)
A reference to the execution authorizing the sale;
(2)
The date, time, and place the sale will be held;
(3)
A description of any real property to be sold sufficient to
identify it;
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(4)
A description of personal property to be sold sufficient to
indicate nature and quantity;
(5)
A statement that the property will be sold to the highest
bidder for cash.
Execution sales may be scheduled or held on any day of the
week except Sunday. G.S. 1-339.60 requires that sales be
held between the hours of 10:00 a.m. and 4:00 p.m. Execution
sales cannot begin before 10:00 a.m. or continue after 4:00
p.m. The sale must begin within one hour of the scheduled
time unless it is delayed by previous sales held at the same
place. Sales which cannot be completed within the time
limits set must be continued to the following day (except
Sundays) unless they fall within the exception set by G.S. 1339.60(c).
All real property sales must be held at the courthouse door
of the county where the land is located. Personal property
sales must be held at the location of the property.
b) Conduct of sale
The sheriff or his deputy must conduct the sale in the manner and
by a method most likely to bring the best price possible. Execution
sales rarely, if ever, result in the property being sold for its full
market value. This will not affect the validity of the sale. The
property under levy may be sold in separate lots or parcels or as a
unit depending on which will bring the highest price. he sheriff
cannot sell more property than is reasonably necessary to satisfy
the judgment plus the costs and expenses of the levy and sale.
If the judgment debtor wishes to halt the sale, he must pay the
sheriff the full amount due on the execution and judgment. This
amount includes: the amount of the judgment and costs, the
sheriff's fees, commissions and expenses incurred on account of the
sale which would include expenses of levy and storage.
All sales under execution must be made for cash or its equivalent.
A certified check or money order may be accepted as cash but a
personal check is accepted totally at the risk of the sheriff.
The sale should be conducted like an auction with the last and
highest bidder receiving the property. An execution sale can only
affect whatever right, title, or interest the judgment debtor had in
the property at the time this claim attached. As a result, these
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sales are made subject to all prior liens and encumbrances on the
property. The prospective buyer is responsible for checking to
determine if there are any prior liens. Any proceeds obtained at
the sale must be applied to the satisfaction of the claim under
which the property was sold and the expenses of the levy and sale.
The sheriff or deputy conducting the sale must announce at the
beginning of the sale that the property will be sold subject to any
existing prior liens and encumbrances. Questions about the
payment of the proceeds of the sale must be resolved by the clerk.
Personal property sales are final upon the payment of the
purchase price and the receipt of the bill of sale and property.
Real property sales must remain open for a period of ten (10) days
to allow for the filing of an upset bid. If an upset bid is filed, the
property must be re-advertised and resold. There can be more
than one resale.
c) After the sale
After completing the sale, the deputy must file a written report of
sale with the clerk of the issuing court within five (5) days after
the date of sale. Each report of sale must contain the following
information:
NOTE: Show slide, "Report of Sale."
1-339.63. Report of sale.
(1)
The sheriff shall, within five days after the date of the sale,
file a report thereof with the clerk of the superior court.
(2)
The report shall be signed and shall show
(a) The title of the action or proceeding;
(b) The authority under which the sheriff acted;
(c) The date, hour and place of the sale;
(d) A description of real property sold, by reference or
otherwise, sufficient to identify it, and, if sold in parts, a
description of each part so sold;
(e) A description of personal property sold, sufficient to
indicate the nature and quantity of the property sold to
each purchaser;
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(f) The name or names of the person or persons to whom the
property was sold;
(g) The price at which the property, or each part thereof,
was sold and that such price was the highest bid
therefore; and
(h) The date of the report.
Real property sales cannot be finalized until the clerk confirms the
sale after the upset bid period has passed. After receiving the
confirmation of sale, the sheriff shall prepare a duly executed deed
and tender (offer) it to the purchaser. Upon payment of the
purchase price, the deed shall be delivered to the purchaser.
NOTE: Be sure to remind students that this is a mere
summary of procedures on an execution sale. Before
actually conducting a sale, the deputy should read very
carefully G.S. 1-339.41 to 1-339.71 and any other reference
materials available such as Civil Process Handbook for
Sheriffs and/or Handling Writs of Execution cited in the
Academic Checklist.
d) Writs of possession for real or personal property
Some executions are issued primarily to obtain or recover
possession of real or personal property. This type of execution
is issued under several different names:
Writ of Possession for Real Property
Summary Ejectment
Writ of Possession for Personal Property
The basic purpose of each of these writs is the same—the obtaining
of possession of property by a named individual. If the property to
be taken is real property, the sheriff must remove the person
named in order to deliver possession to the person entitled. If
necessary, the sheriff has the power to break and enter the
premises to evict the tenant forcibly. This is the only postjudgment remedy by common law allowing use of force.
Writs of possession issued in summary ejectment cases must be
enforced through procedures set out in G.S.42-36.2. These
procedures are required only in summary ejectment (eviction)
cases.
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NOTE: Show slide, "Procedures to Enforce Writs of
Possession in Summary Ejectment Actions."
The deputy must comply with the following procedures:
(1)
Within seven days of his receipt of the execution called a writ
of possession for real property, the sheriff must carry out the
writ. The writ itself is valid for 90 days.
(2)
The sheriff must give notice of the eviction. This notice gives
the tenant the approximate date and time the sheriff will be
there with the landlord to remove the tenant and turn the
property back over to the landlord. This notice is not issued
by the Clerk of Superior Court. It is sent out by the sheriff’s
office. It may be served by one of the below methods.
(a) By delivering a copy of the notice to the tenant or his
authorized agent at least two (2) days before the time
stated in the notice for the removal.
(b) By leaving copies of the notice at the tenant's dwelling or
usual place of abode with a person of suitable age and
discretion who resides there at least two (2) days before
the time stated in the notice for the removal.
(c) By mailing a copy of the notice by first class mail to the
tenant at his last known address at least five (5) days
before the time stated in the notice for the removal.
(3)
No one except the tenant or his agents may remove the
property prior to the date set in the notice.
(4)
Serving the writ of possession for real property
After giving the required notice, the sheriff must remove the
tenant's property unless one of the following events occur.
(a) The landlord signs a statement saying that the tenant's
property can remain on the premises, in which case the
sheriff shall simply lock the premises; or
(b) The landlord signs a statement saying that he does not
want to eject the tenant because the tenant has paid all
court costs charged to him and has satisfied his
indebtedness to the landlord; or
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(c) The sheriff requires the landlord to advance the cost of
delivering the property to a storage warehouse plus the
cost of one month's storage and the landlord refuses.
If any of the above three events occurs, the sheriff must
return the writ unexecuted with a notation of the reason
and attach a copy of any statement given. Although the
statute (42-36.2)says so, the writ has been served.
(5)
After executing the writ, the sheriff must make a return to
the issuing court immediately stating what action was
taken.
(6)
Writ of possession for personal property
A writ of possession for personal property authorizes the
sheriff to seize personal property and deliver it to the person
entitled. The sheriff, however, does not have the authority or
the power to break and enter a dwelling to execute a writ of
possession for personal property. If the defendant is given
notice of the writ and refuses to deliver possession of the
personal property, the sheriff cannot forcibly seize
possession. "In the absence of some statutory provision to the
contrary, the common law prohibition against the use of force
to execute civil process on personal property applies." Red
House Furniture Company v. Annie Smith, 310 N.C. 530 313
S.E.2d 569 (N.C. 1984).
6.
Returns of executions
Each execution issued must include on its face the date it was issued
by the clerk. This date is extremely important for the deputy
enforcing the execution because from it he determines his time limits.
All executions must be returned to the issuing court within ninety
(90) days of the issuance date. During this ninety (90) days, the
deputy must find and levy on the defendant's property, advertise and
hold a sale, file his report of sale and make his return to the issuing
court. The deputy can return the execution at any time before the
ninety day period has expired but he must make a return. Legally,
there are no excuses recognized for failing to return a writ or process
within the time allowed.
Once made, the return becomes part of the official court record. In
making his return, the deputy should state exactly what actions he
took to enforce the court order. The clerk must credit the judgment
with any amount which was collected on the execution.
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If the plaintiff or the court recalls the execution, the sheriff should
simply make his return stating that the execution is being
returned at the request of the party or the court.
The sheriff and his deputy are strictly liable for the contents of the
return. Any word or statement in the return which is untrue may
make the return false. Making a false return may subject the sheriff
and his deputy to both civil and criminal liabilities. Knowledge or
intent to make a false return are unimportant. If the return is false,
regardless of the reason, the sheriff is liable.
F.
Repossessions
It is a common occurrence for a law enforcement officer to receive a call
about a vehicle theft in progress, or about two people arguing over a
vehicle, and the call turns out to be a repossession. Repossessions in
North Carolina which do not go through the court system are legal.
G.S. 25-9-503. Secured party’s right to take possession after default. Unless
otherwise agreed a secured party has on default the right to take
possession of the collateral. In taking possession a secured party may
proceed without judicial process if this can be done without breach of peace
or may proceed by action. If the security agreement so provides, the secured
party may require the debtor to assemble the collateral and make it
available to the secured party at a place to be designated by the secured
party which is reasonably convenient to both parties. Without removal a
secured party may render equipment unusable, and may dispose of
collateral on the debtor’s premises under G.S. 25.9.504 (to make
arrangements to sell it).
Default means the person buying the property has stopped paying for it.
Secured party is the person the property was either purchased from or
who loaned the money to purchase the property. Collateral is the
property. Security agreement is the purchase or loan contract.
Very often when people sign contracts with banks or other loan
institutions and don’t make the required payments the creditor may try to
gain possession of the personal property back, without going through the
court system. The form or paperwork a wrecker-driver or repossess or
may have to take possession of the vehicle or other property is left up to
the company initiating the repossession. It is not a court order, therefore
law enforcement officials do not have the authority to assist, or hinder the
action. Law enforcement’s role, of on scene, is to ensure peace.
It is not uncommon for law enforcement officials to speak to one or more
parties at the scene to ensure peace is maintained. It is important to
understand though, that law enforcement presence cannot be used as an
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intimidation factor to assist the completion of there possession. And, law
enforcement cannot act or comment in such a way as to slow, prevent or
hinder a lawful action.
Note that the statute allows for things like booting of vehicles; requiring
a boat to be loaded onto a trailer, or a motorcycle to be loaded onto a
trailer; assembly of property pieces; or the repossess or may go in the
yard of an owner to get property.
If there is a violation of breach of peace, the repossess or must take the
action to court to regain possession of the property.
G.
Eviction from Hotels/Motels
G.S. 72.1. Innkeepers must furnish accommodations; contracts for
termination valid. Every innkeeper shall at all times provide suitable
lodging accommodations for persons accepted as guests in his inn or hotel.
A written statement setting forth the time period during which a guest
may occupy an assigned room, signed, or initialed by the guest, shall be
deemed a valid contract and at the expiration of such time period the
lodger may be restrained from entering and any property of the guest may
be removed by the innkeeper without liability, except for damages to or
loss of such property attributable to its removal.
Occasionally, a hotel guest may refuse to leave the lodging. If law
enforcement is called upon to intervene, the hotel employee or officer may
restrain (verbally or otherwise) the guest from reentering the room; the
hotel employee may go pack up the property of the guests and give the
property to the guest; and the officer may assist the hotel employee in
doing so.
There occasionally is question about the status of a piece of property—
whether it falls in the category of a hotel where the guest may be evicted
according to the innkeeper statute, or whether the property is a boarding
house and the tenant must be evicted with a magistrate summons with a
complaint in summary ejectment. This can easily be determined by how
the business is licensed. Hotels, inns, motels and the like have to be
licensed and each building the business uses for such purpose has to have
its individual hotel license, clearly posted in its designated building. If the
room in question is in a building without a hotel license, the room is
generally classified as a boardinghouse room and the tenant must be
evicted through court with a summary ejectment action. It is not
uncommon to find some businesses with some of its buildings licensed as
a hotel and some buildings unlicensed and classified as boarding house
rooms.
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H.
Criminal Summons
Criminal summons are summons issued by a magistrate, clerk of superior
court or judge which must be served in person on a defendant. It notifies a
defendant that he will be tried for a felony, misdemeanor, or infraction for
which he is being charged. The summons has a court date on it, and
although a criminal summons is valid for 90 days, a copy of the summons
has to be served on the defendant before the court date. It may be served
by any law enforcement officer having authority and territorial
jurisdiction to make an arrest for the offense charged. Or, a law
enforcement CEO such as a sheriff or chief, may appoint a person to serve
criminal summons, in person, at the law enforcement headquarters. A
defendant may be contacted by phone or have a letter sent asking him to
come to headquarters to accept the summons.
III.Conclusion
A.
Summary
In this block of instruction we learned the importance of properly serving
legal process, and how the manner of service may differ depending on the
legal status of the defendant (natural person, corporation, partnership,
and so on). We also learned special rules for service of process in
summary ejectment actions, and how to correctly prepare a “return of
service” in all cases. Service of subpoenas and enforcement of child
custody and domestic violence protective orders were discussed in some
detail. Finally, students were provided with a very basic overview of
“executions” law.
NOTE: Show slide, “Training Objectives.”
B.
Questions from Class
C.
Closing Statement
Service of the civil court’s process is an extremely important function.
While the law is somewhat complex, it should be remembered that civil
process rarely calls for an “emergency response,” for which reason
deputies have time to consult statutes, supervisors, senior officers, or
agency legal advisors for guidance. Upon graduating from BLET, deputies
should remember that civil process training opportunities - from
“refresher” to advanced - are available through the North Carolina Justice
Academy, Institute of Government, and the community college system.
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