Summons Instrument used to commence a civil action or special proceeding and is a means of acquiring jurisdiction over a party. In re Dell, 56 Misc.2d 1017, 290 N.Y.S.2d 287, 289.
Writ or process directed to the sheriff or other proper officer, requiring him to notify the person named that an action has been commenced against him in the court from where the process issues, and that he is required to appear, on a day named, and answer the complaint in such action.
Upon the filing of the complaint the clerk is required to issue a summons and deliver it for service to the marshall or to a person specially appointed to serve it.
Fed.R.CivilP. 4(a) See also Alias summons; Process; Service.
In criminal law, an alternative to arrest generally used for petty or traffic offenses; a written order notifying an individual that he or she has been charged with an offense.
A summons directs the person to appear in court to answer the charge.
It is used primarily in instances of low risk, where the person will not be required to appear at a later date. See e.g. Fed.R.Crim.P. 4, 9.
Form and content of summons The summons shall be signed by the clerk,
be under the seal of the court, contain the name of the court, the names of the parties,
be directed to the defendant,
state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address,
and the time within which these rules require the defendant to appear and defend,
and shall notify him that in case of failure to do so judgment by default will be rendered against him for the relief demanded in the complaint.
When service is made pursuant to a statute or rule of court of a state, the summons or notice, or order in lieu of summons shall correspond as nearly as may be to that required by the statute or rule.
FedR.CivilP. 4(b)
For form of summons in criminal cases see
Fed.R.Crim.P. 4, 9.
John Doe summons
An order of the court to appear in a proceeding to one whose name is unknown.
A description of the person so ordered is required to appear on the summons to satisfy due process requirements.
Process
Civil and Criminal Proceedings
Process is defined as any means used by court to acquire or exercise its jurisdiction over a person or over specific property.
Austin Liquor Mart, Inc. v. Department of Revenue, 18 Ill. App.3d 894, 310 N.E.2d 719, 728.
Means whereby court compells appearance of defendant before it or a compliance with its demands.
Danbsby v. Dansby, 222 Ga. 118, 149 S.E.2d 252, 254.
See also Abuse (
Process); Alias process,; Compulsory process; Constructive service of process; Due process of law; Executory process; Long arm statutes; Malicious abuse of process; Prohibition; Service (
Service of process); Summons.
Alias process A second or further writ, summons, execution or subpoena, used when the first or earlier process has for any reason failed to accomplish its purpose.
(
Void process
Such as was issued without power in the court to award it, or which the court had not acquired the jurisdiction to issue in the particular case, or which fails in some material respect to comply with the requisite form of legal process.
Abuse Everything which is contrary to good order established by usage.
Departure from reasonable use; immoderate or improper use.
Physical or mental maltreatment.
Misuse.
Deception.
Process
The gist of an action for "abuse of process" is improper use or perversion of process after it has been issued.
Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413, 415.
A malicious abuse of legal process occurs where the party employs it for some unlawful object, not the purpose for which it is intended by the law to effect; in other words, a perversion of it.
500 West 174 St, v. Vasquez, 67 Misc.2d 993, 325 N.Y.S.2d 256, 258.
Thus, where the purpose of prosecution for issuance of a check without funds was to collect a debt, the prosecution is an abuse of criminal process.
Regular and legitimate use of process, although with a bad intention is not a "malicious abuse of process
." Priest v. Union Agency, 174 Tenn304, 125 S.W.2d 142, 143.
Action for "abuse of process" is distinguished from action for "malicious abuse of process," in that action for abuse of process resyts upon improper use of of regularly issued process, while "malicious prosecution" has reference to wrong in issuance of process.
Lobel v. Trade Bank of New York, 132 Misc. 643, 229 N.Y.S. 778, 781.
Fundamental elements of this tort are an ulterior purpose, and a willful act in the use of process not proper in the regular conduct of the proceeding.
Barquis v. Merchants Collection Ass'n of Oakland, Inc., Cal., 7 C.3d 94, 101 Cal.Rptr. 745, 752, 496 P.2d 817.
See also Malicious abuse of legal process; Malicious use of process.
Service
Practice
The exhibition or delivery of a writ, summonsand complaint, criminal summons, notice, order, etc., by an authorized person, to a person who is thereby officially notified of some action or proceeding in which he is concerned, and is thereby advised or warned of some action or step which he is commanded to take or to forbear.
FedR.CivilProc. 4 and 5; Fed.R.CrimP. 4 and 49.
Service of process The service of writs, complaints, summonses, etc., signifies the delivering to or leaving with the party to whom or with whom they ought to be delivered or left; and, when they are so delivered, they are then said to have been served.
In the pleading stage of litigation, is the delivery of the complaint to the defendant either to him personnalyor, in most juristidictions, by leaving it with a responsible person at his place of residence.
Usually a copy only is served and the original is shown.
The service must furnish reasonable notice to the defendant of proceedings to afford him opportunity to appear and be heard.
Chemical Specialties Sales Corp. Industrial Div v. Basic Inc., D.C.Conn., 296 F.Supp. 1106, 1107. Fed.R.CivilP. 4; Fed.R.Crim.P. 4.
The various types of service of process are as follows:
Constructive service of process Any form of service other than actual personal service.
Notification of an action or of some proceeding therein, given to a person affected by sending it to him in the mails or causing it to be published in a newspaper.
Fed.R.CivilP. 4(e).
Long arm statutes Laws enacted in most states which permit courts to acquire personal jurisdiction of nonresidents by virtue of activity within the state.
See Foreign service,; Long arm statutes, Minimum contacts.
Personal service Actual delivery of process to person to whom it is directed or to someone authorized to receive it in his behalf. Green Mountain College v. Levine, 120 Vt. 332, 139 A.2d 822, 824.
Personal service is made by delivering a copy of the summons to the person named or by leaving copies thereof at his dwelling or usual place of abode with some responsible person or by delivering a copy to an agent authorized to receive such.
Special rules are also provided for service on infants, incompetents, corporations, the United States or officers or agencies thereof, etc.
Fed.R.Civil P. 4(d) Fed.R.Crim.P. 4(d) See also Found.
Proof of service Evidence submitted by a process server that he has made service on a defendent in an action.
It is also called a return of service.
Fed.R.Civil P. 4.