KANSAS RULES OF
CIVIL PROCEDURE
Introduction
In the
state of Kansas, no process server license is required. Service, levy, and execution of all process
including, but not limited to, writs of execution, orders of attachments,
orders for delivery, writs of restitution and writs of assistance, is made by
either a sheriff within the sheriff's county, by the sheriff's deputy, an
attorney admitted to the practice of law before the supreme court of Kansas, or
by an individual appointed as a process server by a judge or clerk of the
district court. Any individual, over
eighteen years of age, may serve a subpoena so long as they are not associated
with the defendants party.
Kansas requires
all affidavits whether served or non-served to be notarized.
TABLE OF CONTENTS
Civil Procedure
Scope
One Form of Action
Commencement of Action
Process, Generally
Service and Filing of Pleadings and other papers
Time Computation and Extension
Pleadings Allowed
Process
Scope
This article governs the procedure in the district courts of
Kansas, other than actions commenced pursuant to the code of civil procedure
for limited actions and governs the procedure in all original proceedings in
the supreme court in all suits of a civil nature whether cognizable as cases at
law or in equity, except as provided in K.S.A. 60-265, and amendments thereto.
History: L. 1963, ch. 303,
60-201; L. 1976, ch. 251, § 1; L. 2000, ch. 161, § 109; Jan. 1, 2001.
One form of action
There shall be but one form of action
to be known as "civil action," in which the party complaining shall
be designated "plaintiff" and the adverse party
"defendant."
History: L. 1963, ch. 303,
60-202; Jan. 1, 1964.
Commencement of action
(a) A civil action is commenced at the
time of: (1) Filing a petition with the clerk of the court, if service of
process is obtained or the first publication is made for service by publication
within 90 days after the petition is filed, except that the court may extend
that time an additional 30 days upon a showing of good cause by the plaintiff;
or (2) service of process or first publication, if service of process or first
publication is not made within the time specified by provision (1).
(b) If service of process or first
publication purports to have been made but is later adjudicated to have been
invalid due to any irregularity in form or procedure or any defect in making
service, the action shall nevertheless be deemed to have been commenced at the applicable
time under subsection (a) if valid service is obtained or first publication is
made within 90 days after that adjudication, except that the court may extend
that time an additional 30 days upon a showing of good cause by the plaintiff.
(c) The filing of an entry of
appearance shall have the same effect as service. Written contact with the
court by a defendant or an attorney for a defendant evoking the protection for
such defendant under the soldiers' and sailors' civil relief act shall not be
deemed an entry of appearance by the court.
(d) As used in this section,
filing a petition with the clerk of the court shall include receipt by the
clerk of a petition by telefacsimile communication complying with supreme court
rules.
History: L. 1963, ch. 303,
60-203; L. 1983, ch. 193, § 1; L. 1990, ch. 202, § 1; L. 1991, ch. 169, § 1; L.
1992, ch. 128, § 12; July 1.
Process, generally
The methods of serving process as set forth in article 3 of this
chapter shall constitute sufficient service of process in all civil actions and
special proceedings, but they shall be alternative to, and not in restriction
of different methods specifically provided by law. In any method of serving
process, substantial compliance therewith shall effect valid service of process
if the court finds that, notwithstanding some irregularity or omission, the
party served was made aware that an action or proceeding was pending in a
specified court in which his or her person, status or property were subject to
being affected.
History: L. 1963, ch. 303, 60-204; Jan. 1, 1964.
Service and filing of pleadings and other
papers
The method of service and filing of
pleadings and other papers as provided in this section shall constitute
sufficient service and filing in all civil actions and special proceedings but
they shall be alternative to, and not in restriction of, different methods
specifically provided by law.
(a) When required. Except as otherwise
provided in this chapter, the following shall be served upon each of the
parties: Every order required by its terms to be served; every pleading
subsequent to the original petition, unless the court otherwise orders because
of numerous defendants; every paper relating to disclosure of expert testimony
or discovery required to be served upon a party, unless the court otherwise
orders; every written motion other than one which may be heard ex parte; and
every written notice, appearance, demand, offer of judgment, designation of
record on appeal and similar paper. No service need be made on parties in
default for failure to appear except that pleadings asserting new or additional
claims for relief against them shall be served upon them in the manner provided
for service of summons in article 3 of chapter 60.
(b) How made. Whenever under this
article service is required or permitted to be made upon a party represented by
an attorney the service shall be made upon the attorney unless the court orders
service upon the party. Service upon the attorney or upon a party shall be made
by: (1) Delivering a copy to the attorney or a party: (2) mailing it to the
attorney or a party at the last known address; (3) if no address is known, by
leaving it with the clerk of the court; or (4) sending or transmitting to such
attorney a copy by telefacsimile communication. For the purposes of this
subsection, "Delivery of a copy" means: Handing it to the attorney or
to the party; leaving it at the attorney's or party's office with the person in
charge thereof or, if there is no one in charge, leaving it in a conspicuous
place therein; or, if the attorney's or party's office is closed or the person
to be served has no office, leaving it at the attorney's or party's dwelling
house or usual place of abode with some person of suitable age and discretion
then residing therein. Service by mail is complete upon mailing. Service by
telefacsimile communication is complete upon receipt of a confirmation
generated by the transmitting machine.
(c) Numerous defendants. In any action
in which there are unusually large numbers of defendants, the court, upon
motion or of its own initiative, may order that services of the pleadings of
the defendants and replies thereto need not be made as between the defendants
and that any cross-claim, counterclaim or matter constituting an avoidance or
affirmative defense contained therein shall be deemed to be denied or avoided
by all other parties and that the filing of any such pleading and service
thereof upon the plaintiff constitutes due notice of it to the parties. A copy
of every such order shall be served upon the parties in such manner and form as
the court directs.
(d) Filing. (1) Interrogatories,
depositions other than those taken under K.S.A. 60-227 and amendments thereto,
disclosures of expert testimony under K.S.A. 60-226 and amendments thereto and
discovery requests or responses under K.S.A. 60-234 or 60-236, and amendments
thereto, shall not be filed except on order of the court or until used in a
trial or hearing, at which time the documents shall be filed.
(2) A
party serving discovery requests or responses under K.S.A. 60-233, 60-234 or
60-236, and amendments thereto, or disclosures of expert testimony under K.S.A.
60-226 and amendments thereto, shall file with the court a certificate stating
what document was served, when and upon whom.
(3) All
other papers filed after the petition and required to be served upon a party,
shall be filed with the court either before service or within a reasonable time
thereafter.
(e) Filing
with the court defined. The filing of pleadings and other papers with the court
as required by this article shall be made by filing them with the clerk of the
court. In accordance with K.S.A. 60-271 and amendments thereto and supreme
court rules, pleadings and other papers may be filed by telefacsimile
communication. The judge may permit the papers to be filed with the judge, in
which event the judge shall note thereon the filing date and forthwith transmit
them to the office of the clerk.
History:
L. 1963, ch. 303, 60-205; amended by Supreme Court order dated July 20, 1972;
amended by Supreme Court order dated July 28, 1976; L. 1987, ch. 218, § 1; L.
1992, ch. 128, § 13; L. 1997, ch. 173, § 2; L. 2002, ch. 198, § 18; July 1.
Time, computation and extension
The following provisions shall govern
the computation and extension of time:
(a) Computation; legal holiday
defined. In computing any period of time prescribed or allowed by this chapter,
by the local rules of any district court, by order of court, or by any
applicable statute, the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The last day of
the period so computed is to be included, unless it is a Saturday, Sunday or a
legal holiday, in which event the period runs until the end of the next day
which is not a Saturday, a Sunday or a legal holiday. When the period of time
prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and
legal holidays shall be excluded in the computation. A half holiday shall be
considered as other days and not as a holiday. "Legal holiday"
includes any day designated as a holiday by the congress of the United States,
or by the legislature of this state. When an act is to be performed within any
prescribed time under any law of this state, or any rule or regulation lawfully
promulgated thereunder, and the method for computing such time is not otherwise
specifically provided, the method prescribed herein shall apply.
(b) Enlargement. When by this chapter
or by a notice given thereunder or by order of court an act is required or
allowed to be done at or within a specified time, the judge for cause shown may
at any time in the judge's discretion (1) with or without motion or notice
order the period enlarged if request therefor is made before the expiration of
the period originally prescribed or as extended by a previous order or (2) upon
motion made after the expiration of the specified period permit the act to be
done where the failure to act was the result of excusable neglect; but it may
not extend the time for taking any action under subsection (b) of K.S.A.
60-250, subsection (b) of K.S.A. 60-252, subsections (b), (e) and (f) of K.S.A.
60-259 and subsection (b) of K.S.A. 60-260, and amendments thereto, except to
the extent and under the conditions stated in them.
(c) Unaffected by expiration of term.
The period of time provided for the doing of any act or the taking of any
proceeding is not affected or limited by the continued existence or expiration
of a term of court. The continued existence or expiration of a term of court in
no way affects the power of a court to do any act or take any proceeding in any
civil action pending before it.
(d) For motions--affidavits. A written
motion, other than one which may be heard ex parte, and notice of the hearing
thereof shall be served not later than five days before the time specified for
the hearing, unless a different period is fixed by these rules or by order of
the judge. Such an order may for cause shown be made on ex parte application.
When a motion is supported by affidavit, the affidavit shall be served with the
motion; and except as otherwise provided in subsection (d) of K.S.A. 60-259,
and amendments thereto, opposing affidavits may be served not later than one
day before the hearing, unless the court permits them to be served at the time
of hearing.
(e) Additional time after service by
mail. Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a notice or other
paper upon such party and the notice or paper is served upon such party by
mail, three days shall be added to the prescribed period.
History: L. 1963, ch. 303,
60-206; L. 1988, ch. 207, § 1; L. 1988, ch. 206, § 1; L. 1988, ch. 208, § 1; L.
1997, ch. 173, § 3; July 1.
Pleadings allowed, forms of motions
and petitions
(a) Pleadings. There shall be a
petition and an answer; a reply to a counterclaim denominated as such; an
answer to a cross-claim, if the answer contains a cross-claim; a third-party
petition, if a person who was not an original party is summoned under the
provision of K.S.A. 60-214; and a third-party answer, if a third-party petition
is served. No other pleading shall be allowed, except that the court may order
a reply to an answer or a third-party answer. Any petition filed in the
district court pursuant to chapter 60 of the Kansas Statutes Annotated shall
designate, immediately below the names of the parties in the caption, that such
petition is filed pursuant to chapter 60 of the Kansas Statutes Annotated. Any
such designation shall be sufficient if labeled "Petition Pursuant to
K.S.A. Chapter 60" immediately below the caption.
(b) Motions and other papers.
(1) An application to the court or judge for an order shall be by motion which,
unless made during a hearing or trial, shall be made in writing, shall state
with particularity the grounds therefor, and shall set forth the relief or
order sought. The requirement of writing is fulfilled if the motion is stated
in a written notice of the hearing of the motion. (2) The sections of this
article applicable to captions, signing, and other matters of form of pleadings
apply to all motions and other papers provided for by this article.
(c) Demurrers, pleas, etc., abolished.
Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be
used.
(d) Lost pleadings. If an original
pleading is lost, destroyed, or withheld by any person, the court or judge may
allow a copy thereof to be substituted.
History: L. 1963, ch. 303,
60-207; L. 1976, ch. 251, § 2; Jan. 10, 1977.
Summons; issuance
Upon the filing of the petition the
clerk shall forthwith issue a summons for service upon each defendant in
accordance with K.S.A. 60-303, and amendments thereto. Upon the written request
of the plaintiff separate or additional summonses shall issue for any
defendant.
History: L. 1963, ch. 303,
60-301; L. 1986, ch. 215, § 12; L. 1990, ch. 202, § 3; Jan. 1, 1991.
Summons; form
The summons shall be signed by the
clerk, dated the day it is issued, be under the seal of the court and shall be
in substantial conformity with the forms for summons contained in the appendix
of forms following K.S.A. 60-269.
History: L. 1963, ch. 303,
60-302; L. 1986, ch. 215, § 13; July 1.
Methods of service of process
(a) Methods of service of process
within this state, except service by publication as provided in K.S.A. 60-307,
and amendments thereto, are described in this section. Methods of out-of-state
service of process are described in K.S.A. 60-308, and amendments thereto.
(b) Who serves process. The sheriff of
the county in which the action is filed shall serve any process by any method authorized
by this section, or as otherwise provided by law, unless a party, either
personally or through an attorney, elects to undertake responsibility for
service and so notifies the clerk.
(c) Service by return receipt
delivery. (1) Service of process by return receipt delivery shall include
service effected by certified mail, priority mail, commercial courier service,
overnight delivery service, or other reliable personal delivery service to the
party addressed, in each instance evidenced by a written or electronic receipt
showing to whom delivered, date of delivery, address where delivered, and
person or entity effecting delivery.
(2) The
sheriff, party, or party's attorney shall cause a copy of the process and
petition or other document to be placed in a sealed envelope addressed to the
person to be served in accordance with K.S.A. 60-304, and amendments thereto,
with postage or other delivery fees prepaid, and the sealed envelope placed in
the custody of the person or entity effecting delivery.
(3)
Service of process shall be considered obtained under K.S.A. 60-203, and
amendments thereto, upon the delivery of the sealed envelope.
(4) After
service and return of the return receipt, the sheriff, party or party's
attorney shall execute a return on service stating the nature of the process,
to whom delivered, the date of delivery, the address where delivered and the
person or entity effecting delivery. The original return of service shall be
filed with the clerk, along with a copy of the return receipt evidencing such
delivery.
(5) If the
sealed envelope is returned with an endorsement showing refusal to accept
delivery, the sheriff, party or the party's attorney may send a copy of the
process and petition or other document by first-class mail addressed to the
party to be served, or may elect other methods of service. If mailed, service
shall be considered obtained three days after the mailing by first-class mail,
postage prepaid, which shall be evidenced by a certificate of service filed
with the clerk. If the unopened envelope sent first-class mail is returned as
undelivered for any reason, the sheriff, party or party's attorney shall file
an amended certificate of service with the clerk indicating non-delivery, and
service by such mailing shall not be considered obtained. Mere failure to claim
return receipt delivery is not refusal of service within the meaning of this
subsection.
(d)
Personal and residence service. (1) The party may file a written request with the
clerk for personal or residence service. Personal service shall be made by
delivering or offering to deliver a copy of the process and accompanying
documents to the person to be served. Residence service shall be made by
leaving a copy of the process and petition, or other document to be served, at
the dwelling house or usual place of abode of the person to be served with some
person of suitable age and discretion residing therein. If service cannot be
made upon an individual, other than a minor or a disabled person, by personal
or residence service, service may be made by leaving a copy of the process and
petition, or other document to be served, at the defendant's dwelling house or
usual place of abode and mailing a notice that such copy has been left at such
house or place of abode to the individual by first-class mail.
(2) When
process is to be served under this subsection, the clerk of the court shall
deliver the process and sufficient copies of the process and petition, or other
document to be served, to the sheriff of the county where the process is to be
served or, if requested, to a person appointed to serve process or to the
plaintiff's attorney.
(3)
Service, levy and execution of all process under this subsection, including, but
not limited to, writs of execution, orders of attachment, replevin orders,
orders for delivery, writs of restitution and writs of assistance, shall be
made by a sheriff within the sheriff's county, by the sheriff's deputy, by an
attorney admitted to the practice of law before the supreme court of Kansas or
by some person appointed as a process server by a judge or clerk of the
district court, except that a subpoena may also be served by any other person
who is not a party and is not less than 18 years of age. Process servers shall
be appointed freely and may be authorized either to serve process in a single
case or in cases generally during a fixed period of time. A process server or
an authorized attorney may make the service anywhere in or out of the state and
shall be allowed the fees prescribed in K.S.A. 28-110, and amendments thereto,
for the sheriff and such other fees and costs as the court shall allow. All
persons authorized under this subsection to serve, levy and execute process
shall be considered an "officer" as used in K.S.A. 60-706 and 60-2401
and amendments thereto.
(4) In all
cases when the person to be served, or an agent authorized by the person to
accept service of process, refuses to receive copies thereof, the offer of the
duly authorized process server to deliver copies thereof, and the refusal,
shall be a sufficient service of the process.
(e)
Acknowledgment or appearance. An acknowledgment of service on the summons is
equivalent to service. The voluntary appearance by a defendant is equivalent to
service as of the date of appearance.
History: L. 1963, ch. 303,
60-303; L. 1976, ch. 251, § 14; L. 1982, ch. 244, § 1; L. 1986, ch. 215, § 14;
L. 1990, ch. 202, § 4; L. 1992, ch. 290, § 1; L. 1994, ch. 273, § 12; L. 2000,
ch. 175, § 3; July 1.
Service of process, on whom made
As used in this section,
"serving" means making service by any of the methods described in
K.S.A. 60-303, and amendments thereto, unless a specific method of making
service is prescribed in this section. Except for service by publication under
K.S.A. 60-307, and amendments thereto, service of process under this article
shall be made as follows:
(a) Individual. Upon an
individual other than a minor or a disabled person, by serving the individual
or by serving an agent authorized by appointment or by law to receive service
of process, but if the agent is one designated by statute to receive service,
such further notice as the statute requires shall be given. Service by certified
mail shall be addressed to an individual at the individual's dwelling house or
usual place of abode and to an authorized agent at the agent's usual or
designated address. If service by certified mail to the individual's dwelling
house or usual place of abode is refused or unclaimed, the sheriff, party or
party's attorney seeking service may complete service by certified mail,
restricted delivery, by serving the individual at a business address after
filing a return on service stating the certified mailing to the individual at
such individual's dwelling house or usual place of abode has been refused or
unclaimed and a business address is known for such individual.
(b) Minor. Upon a minor,
by serving the minor and also either the minor's guardian or conservator if the
minor has one within the state or the minor's father or mother or other person
having the minor's care or control or with whom such minor resides, or if
service cannot be made upon any of them, then as provided by order of the
judge. Service by certified mail shall be addressed to an individual at the
individual's dwelling house or usual place of abode and to a corporate guardian
or conservator at such guardian or conservator's usual place of business.
(c) Disabled person. Upon a
disabled person, as defined in K.S.A. 77-201, and amendments thereto, by
serving (1) such person's guardian, conservator or a competent adult member of
such person's family with whom the person resides, or if such person is living
in an institution, then the director or chief executive officer of the
institution or, if service cannot be made upon any of them, then as provided by
order of the judge, and (2) unless the judge otherwise orders, the disabled
person. Service by certified mail shall be addressed to a director or chief
executive officer of an institution at the institution, to any other individual
at the individual's dwelling house or usual place of abode, and to a corporate
guardian or conservator at such guardian or conservator's usual place of
business.
(d) Governmental bodies. (1)
Upon a county, by serving one of the county commissioners or the county clerk
or the county treasurer; (2) upon a township, by serving the clerk or the
trustee; (3) upon a city, by serving the clerk or the mayor; (4) upon any other
public corporation, body politic, district or authority by serving the clerk or
secretary or, if not to be found, to any officer, director or manager thereof;
and (5) upon the state or any governmental agency of the state, when subject to
suit, by serving the attorney general or an assistant attorney general. Service
by certified mail shall be addressed to the appropriate official at the
official's governmental office. Income withholding orders for support and
orders of garnishment of earnings of state officers and employees shall be
served upon the state or governmental agency of the state in the manner
provided by K.S.A. 60-723 and amendments thereto.
(e) Corporations, domestic or
foreign limited liability company, domestic or foreign limited partnership,
domestic or foreign limited liability partnership, and partnerships. Upon a
domestic or foreign corporation, domestic or foreign limited liability company,
domestic or foreign limited partnership, domestic or foreign limited liability
partnership or upon a partnership or other unincorporated association, when by
law it may be sued as such, (1) by serving an officer, manager, partner or a
resident, managing or general agent, or (2) by leaving a copy of the summons
and petition at any business office of the defendant with the person having
charge thereof, or (3) by serving any agent authorized by appointment or
required by law to receive service of process, and if the agent is one
authorized by law to receive service and the law so requires, by also mailing a
copy to the defendant. Service by certified mail on an officer, partner or
agent shall be addressed to such person at the person's usual place of
business.
(f) Corporation, limited
liability company, limited partnership or limited liability partnership
resident agent. Whenever any domestic corporation, domestic limited liability
company, domestic limited partnership, or any foreign corporation, foreign
limited liability company, or foreign limited partnership authorized to
transact business or transacting business without authority in this state,
fails to appoint or maintain in this state a resident agent upon whom service
of legal process or service of any such notice or demand may be had, whenever
the resident agent of such corporation, limited liability company or limited
partnership cannot with reasonable diligence be found at the registered office
in this state, the secretary of state shall be irrevocably authorized as the
agent and representative of the corporation, limited liability company or
limited partnership to accept service of any process or service of any notice
or demand required or permitted by law to be served upon the corporation,
limited liability company or limited partnership. Service on the secretary of
state of any process, notice or demand against the corporation, limited
liability company or limited partnership shall be made by delivering to the
secretary of state by personal service or by certified mail, the original and
two copies of the process and two copies of the petition, notice or demand, or
the clerk of the court may send the original process and two copies of both the
process and the petition, notice or demand directly to the secretary of state
by certified mail. In the event that any process, notice or demand is served on
the secretary of state, the secretary shall immediately cause a copy of such
process, notice or demand to be forwarded by certified mail, addressed to the
corporation, limited liability company or limited partnership at its principal
office as it appears in the records of the secretary of state, or to the
registered or principal office of the corporation, limited liability company or
limited partnership in the state of its incorporation or formation. The
secretary of state shall keep a record of all processes, notices and demands
served upon the secretary under this subsection, and shall record in the record
the time of the service and the action of the secretary with reference to it. A
fee of $40 shall be paid to the secretary of state by the party requesting the
service of process, to cover the cost of such service of process, except the
secretary of state may waive the fee for state agencies. That fee shall not be
included within or paid from any deposit as security for any costs or docket
fee required by K.S.A. 60-2001 or K.S.A. 2004 Supp. 61-4001, and amendments
thereto.
(g) Insurance companies or
associations. Service of summons or other process may also be made on any
insurance company or association, organized under the laws of the state of
Kansas by service on the commissioner of insurance in the same manner as that
provided for service on foreign insurance companies. All the requirements of
law relating to service on foreign insurance companies so far as applicable
shall also apply to domestic insurance companies.
(h) Service upon an employee.
If the plaintiff or the plaintiff's agent or attorney files an affidavit that
to the best of the affiant's knowledge and belief the defendant is a
nonresident who is employed in this state, or that the place of residence of
the defendant is unknown, the affiant may direct that the service of summons or
other process be made by the sheriff or other duly authorized person by
directing an officer, partner, managing or general agent, or the person having
charge of the office or place of employment at which the defendant is employed,
to make the defendant available for the purpose of permitting the sheriff or
other duly authorized person to serve the summons or other process.
History: L. 1963, ch. 303,
60-304; L. 1965, ch. 354, § 5; L. 1970, ch. 235, § 1; L. 1973, ch. 234, § 1; L.
1976, ch. 251, § 15; L. 1981, ch. 232, § 2; L. 1982, ch. 363, § 9; L. 1983, ch.
88, § 74; L. 1986, ch. 215, § 15; L. 1990, ch. 202, § 5; L. 1994, ch. 273, § 1;
L. 2000, ch. 172, § 10; L. 2001, ch. 211, § 14; L. 2002, ch. 114, § 72; July 1.
Process agents for public utilities,
except motor common and contract carriers
Every individual, partnership,
association or corporation engaged in the business of transmission of communications,
or the distribution of electricity, gas, water or petroleum products, which is
subject to regulation by the state corporation commission, doing business in
this state, shall designate, in accordance with K.S.A. 60-306, and amendments
thereto, a resident of the state of Kansas upon whom process may be served. Any
company or corporation may revoke the appointment and designation of such
person upon whom process may be served, by appointing any other person
qualified as above specified and filing an instrument of appointment as
provided in K.S.A. 60-306, and amendments thereto. Every second or subsequent
appointment shall also designate the person whose place is filled by such
appointment.
If any such company or corporation
fails to designate and appoint such person, as required by this section, such
process may be served as provided by the other provisions of this article 3 of
chapter 60 of the Kansas Statutes Annotated, and amendments thereto.
History: L. 1963, ch. 303,
60-305; L. 1973, ch. 134, § 49; L. 1982, ch. 245, § 1; L. 1990, ch. 202, § 6;
L. 1992, ch. 67, § 1; July 1.
Process agents for motor common carriers
Every individual, partnership,
association or corporation engaged in the business of transportation as a
common carrier, which is subject to regulation by the state corporation
commission, doing business in this state shall designate some person residing
in this state on whom all process and notices issued by any court of record may
be served. In every case such individual, partnership, company or corporation
shall file a certificate of the appointment and designation of such person in
the office of the state corporation commission or as required pursuant to 49
U.S.C. 11506. The service of the process upon the person so designated, in any
civil action, shall be deemed and held to be as effectual and complete as if
service of such process were made upon the president or other chief officer of
such individual, partnership, company or corporation. Any individual,
partnership, company or corporation may revoke the appointment and designation
of such person upon whom process may be served, by appointing any other person
qualified as above specified and filing a certificate of such appointment.
Every second or subsequent appointment shall also designate the person whose
place is filled by such appointment. If any such individual, partnership,
company or corporation fails to designate and appoint such person, as required
by this section, such process may be served in any county as provided by provisions
of article 3 of chapter 60 of Kansas Statutes Annotated, and amendments
thereto.
History: L. 1982, ch. 245, § 2;
L. 1990, ch. 202, § 7; L. 1993, ch. 263, § 2; L. 2003, ch. 124, § 7; July 1.
Process service agent
(a) Generally. Any individual, partnership,
association or corporation may file in the office of the secretary of state an
instrument appointing a resident of the state of Kansas as agent upon whom
process for such person, fiduciary, company or corporation may be served, and
consenting without limitation or exception other than as provided in this act
that service of process may be issued out of any court upon such service agent
as the agent of such individual, partnership, association or corporation. The
instrument appointing such service agent shall be acknowledged, shall state the
residence or office address of the service agent, and shall be recorded at
length upon the register of service agents and shall state that such
designation is made pursuant to this section.
(b) Change of address. An appointment
shall be amended, in writing, and filed with the secretary of state whenever
the name or address of the service agent is no longer accurate.
(c) Period of appointment. The
appointment shall remain in effect for a period of three years from the date of
its filing unless revoked in writing, executed in the same manner as such
appointment, which revocation shall be recorded and indexed in the register of
service agents.
(d) Collection of fee. The fee for
filing an appointment, amendment or revocation shall be $20. The secretary of
state shall remit all fees received pursuant to this section to the state
treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments
thereto. Upon receipt of each such remittance, the state treasurer shall
deposit the entire amount in the state treasury to the credit of the
information and copy service fee fund created in K.S.A. 75-438, and amendments
thereto.
(e) Effect of service upon agent. When
any person, fiduciary or corporation shall have appointed such a service agent
and such appointment remains unexpired and unrevoked, process issued in any
action or proceeding against such person, fiduciary or corporation in any court
may be served upon such service agent. Service by publication shall be of no
force or effect where an appointment of service agent made and filed as herein
provided remains in effect, unless process showing upon its face the name and
address of such service agent shall have been duly issued to the proper officer
of the county of such service agent's residence as shown on the register of
service agents and returned by such officer to whom it has been directed, with
a notation, that such officer cannot find such service agent in the county.
Such notation shall also state the name of the service agent who could not be
found.
History: L. 1963, ch. 303,
60-306; L. 1976, ch. 196, § 3; L. 1992, ch. 67, § 2; L. 2001, ch. 5, § 207;
July 1.
Service by publication
(a) When permissible. Service may be
made by publication in any of the following cases:
(1) In actions to obtain a divorce,
maintenance or an annulment of the contract of marriage if the defendant
resides out of the state or if the party with due diligence is unable to make
service of summons upon the defendant within the state.
(2) In actions brought against a
person who is a nonresident of the state or a foreign corporation having in
this state property or debts owing to the person sought to be taken by any of
provisional remedies or to be appropriated in any way.
(3) In actions which relate to
or the subject of which is real or personal property in this state, if any
defendant has or claims a lien or interest, vested or contingent, in the
property, or the relief demanded consists wholly or partly in excluding the
defendant from any interest in the property, or in actions for partition or for
foreclosure of a lien, if the defendant is a nonresident of the state or a
foreign corporation or if the party with due diligence is unable to make service
of summons upon the defendant within the state.
(4) In all actions in which the
defendant, being a resident of this state, has departed from this state or from
the county of the defendant's residence, with the intent to delay or defraud
creditors or to avoid the service of a summons, or hides in the state or county
with that intent, or in an action against a domestic corporation which has not
been legally dissolved, if the officers thereof have departed from the state or
cannot be found.
(5) In any of the actions mentioned in
this subsection, publication service may be had on any of the following who are
made defendants as such: The unknown heirs, executors, administrators,
devisees, trustees, creditors and assigns of any deceased defendants; the unknown
spouses of any defendants; the unknown officers, successors, trustees,
creditors and assigns of any defendants that are existing, dissolved or dormant
corporations; the unknown executors, administrators, devisees, trustees,
creditors, successors and assigns of any defendants that are or were partners
or in partnership; the unknown guardians, conservators and trustees of any
defendants that are minors or are under any legal disability; and the unknown
heirs, executors, administrators, devisees, trustees, creditors and assigns of
any person alleged to be deceased.
(b) Construction and effect. The
process provisions of this section shall be construed as separate and
permissive methods of obtaining service. If the defendant served in accordance
with this section does not appear, judgment may be rendered affecting the
property, res or status within the jurisdiction of the court as to the
defendant, but the service shall not warrant a personal judgment against the
defendant.
(c) Affidavit for service by publication.
Before service by publication as provided in this section can be made, one of
the parties or the party's attorney shall file an affidavit stating any of the
following facts that are applicable:
(1) The
residences of all named defendants sought to be served, if known, and the names
of all defendants whose residences are unknown after reasonable effort to
ascertain the same.
(2) The
affiant has made a reasonable but unsuccessful effort to ascertain the names
and residences of any defendants sought to be served as unknown parties in
accordance with subsection (a)(5).
(3) The
party seeking service by publication is unable to procure service of summons on
the defendants in this state.
(4) The
case is one of those mentioned in clauses (1) through (4) of subsection (a).
The affidavit
shall be in substantially the following form:
(Name of Court)
______________, Plaintiff, vs.
(Name of first
defendant), et al. Defendants.
(affidavit)
State of Kansas, ______ County, ss:
______, of lawful
age, being first duly sworn, states that
1. The
affiant is (the plaintiff or defendant, or an attorney for the plaintiff or
defendant) in the above action and makes this affidavit for the purpose of
obtaining service by publication upon the parties named herein.
2. The
defendants on whom service by publication is sought and whose names and
addresses are known are as follows: (Names and addresses).
3. The
defendants on whom service by publication is sought whose names are known but
whose residences are unknown notwithstanding reasonable effort of the affiant
to ascertain the same are as follows: (Names).
4. The
affiant does not know and with reasonable diligence is unable to ascertain the
names or residences of any of those classes of unknown persons who are or may
be concerned in the subject of this litigation, as mentioned in subsection
(a)(5) of K.S.A. 60-307, and amendments thereto, but that the affiant desires
to include all such in the affiant's constructive service.
5. The
affiant is unable to procure service of summons on any of the specified
defendants within this state.
6. This
action is one of those mentioned in K.S.A. subsections (a)(1) through (4) of
60-307, and amendments thereto.
____________
(Jurat)
(Signature)
When the
affidavit is filed, service may proceed by publication.
(d)
Publication; form of notice; description of property, when. The notice shall be
published once a week for three consecutive weeks in some newspaper published
in the county where the petition is filed and which newspaper is authorized by
law to publish legal notices. If there is no newspaper published in the county,
the notice may be published in a newspaper having general circulation in the
county. The notice must name the defendants to be served and notify them and
all other persons who are or may be concerned that the defendants have been
sued in a named court and must answer or plead otherwise to the petition, or
other pleading, filed in the court, on or before a date to be stated, which
date shall be not less than 41 days from the date the notice is first
published, or the petition or other pleading filed will be taken as true, and
judgment, the nature of which shall be stated, will be rendered accordingly.
The notice shall
be in substantially the following form:
Notice of Suit
The state of
Kansas to (names of defendants to whom notice is given) and all other persons
who are or may be concerned:
You are hereby
notified that a (petition or other pleading) has been filed in (name of court)
by (name of pleader) praying for (state briefly the nature of the pleading and the
judgment or other relief sought), and you are hereby required to plead to the
(petition or other pleading) on or before ______________, 19__, in the court at
__________, Kansas. If you fail to plead, judgment and decree will be entered
in due course upon the (petition or other pleading).
_____________________________________
(Name of plaintiff or other party.)
Where the action
affects property, the notice need not expressly describe the property, unless
the description is otherwise required by law, but the property may be
identified by reference to the pleading.
(e)
Mailing copy of notice. The party seeking to secure service by publication
shall, within seven days after the first publication, mail a copy of the
publication notice to each defendant whose address is stated in the affidavit
for service by publication.
(f) When
service complete. Service by publication shall be deemed complete when it has
been made in the manner and for the time prescribed in subsections (d) and (e),
and the service shall be proved. No judgment by default shall be entered on the
service until proof of service is made, approved by the court and filed.
History:
L. 1963, ch. 303, 60-307; L. 1965, ch. 355, § 1; L. 1970, ch. 232, § 2; L.
1982, ch. 152, § 22; L. 1990, ch. 202, § 8; L. 1994, ch. 68, § 3; July 1.
Article
3.--PROCESS
60-308.
Service outside state. (a) Proof and effect. (1) Service of process may be made
upon any party outside the state. If upon a person domiciled in this state or
upon a person who has submitted to the jurisdiction of the courts of this
state, it shall have the force and effect of service of process within this
state; otherwise it shall have the force and effect of service by publication.
(2) The
service of process shall be made (A) in the same manner as service within this
state, by any officer authorized to make service of process in this state or in
the state where the defendant is served or (B) by sending a copy of the process
and of the petition or other document to the person to be served in the manner
provided in subsection (e). No order of a court is required. An affidavit, or
any other competent proofs, of the server shall be filed stating the time,
manner and place of service. The court may consider the affidavit, or any other
competent proofs, in determining whether service has been properly made.
(3) No
default shall be entered until the expiration of at least 30 days after
service. A default judgment rendered on service outside this state may be set
aside only on a showing which would be timely and sufficient to set aside a
default judgment under subsection (b) of K.S.A. 60-260, and amendments thereto.
(b)
Submitting to jurisdiction -- process. Any person, whether or not a citizen or
resident of this state, who in person or through an agent or instrumentality
does any of the acts hereinafter enumerated, thereby submits the person and, if
an individual, the individual's personal representative, to the jurisdiction of
the courts of this state as to any cause of action arising from the doing of
any of these acts:
(1)
Transaction of any business within this state;
(2)
commission of a tortious act within this state;
(3)
ownership, use or possession of any real estate situated in this state;
(4)
contracting to insure any person, property or risk located within this state at
the time of contracting;
(5)
entering into an express or implied contract, by mail or otherwise, with a
resident of this state to be performed in whole or in part by either party in
this state;
(6) acting
within this state as director, manager, trustee or other officer of any
corporation organized under the laws of or having a place of business within
this state or acting as executor or administrator of any estate within this
state;
(7)
causing to persons or property within this state any injury arising out of an
act or omission outside of this state by the defendant if, at the time of the
injury either (A) the defendant was engaged in solicitation or service
activities within this state; or (B) products, materials or things processed,
serviced or manufactured by the defendant anywhere were used or consumed within
this state in the ordinary course of trade or use;
(8) living
in the marital relationship within the state notwithstanding subsequent
departure from the state, as to all obligations arising for maintenance, child
support or property settlement under article 16 of this chapter, if the other party
to the marital relationship continues to reside in the state;
(9)
serving as the insurer of any person at the time of any act by the person which
is the subject of an action in a court of competent jurisdiction within the
state of Kansas which results in judgment being taken against the person;
(10)
performing an act of sexual intercourse within the state, as to an action
against a person seeking to adjudge the person to be a parent of a child and as
to an action to require the person to provide support for a child as provided
by law, if (A) the conception of the child results from the act and (B) the
other party to the act or the child continues to reside in the state; or
(11)
entering into an express or implied arrangement, whether by contract, tariff or
otherwise, with a corporation or partnership, either general or limited,
residing or doing business in this state under which such corporation or
partnership has supplied transportation services, or communication services or
equipment, including, without limitation, telephonic communication services,
for a business or commercial user where the services supplied to such user are
managed, operated or monitored within the state of Kansas, provided that such
person is put on reasonable notice that arranging or continuing such
transportation services or telecommunication services may result in the
extension of jurisdiction pursuant to this section.
(c) Service
of process upon any person who is subject to the jurisdiction of the courts of
this state, as provided in subsection (b), may be made by serving the process
upon the defendant outside this state, as provided in subsection (a)(2), with
the same force and effect as though process had been served within this state,
but only causes of action arising from acts enumerated in subsection (b) may be
asserted against a defendant in an action in which jurisdiction over the
defendant is based upon this subsection.
(d)
Nothing contained in this section limits or affects the right to serve any
process in any other manner provided by law.
(e)
Service by return receipt delivery. (1) Service of any out-of-state process by
return receipt delivery shall include service effected by certified mail,
priority mail, commercial courier service, overnight delivery service, or other
reliable personal delivery service to the party addressed, in each instance
evidenced by a written or electronic receipt showing to whom delivered, date of
delivery, address where delivered, and person or entity effecting delivery. (2)
The party or party's attorney shall cause a copy of the process and petition or
other document to be placed in a sealed envelope addressed to the person to be
served in accordance with K.S.A. 60-304, and amendments thereto, with postage
or other delivery fees prepaid, and the sealed envelope placed in the custody
of the person or entity effecting delivery. (3) Service of process shall be
considered obtained under K.S.A. 60-203, and amendments thereto, upon the
delivery of the sealed envelope. (4) After service and return of the return
receipt, the party or party's attorney shall execute a return on service
stating the nature of the process, to whom delivered, the date, the address
where delivered and the person or entity effecting delivery. The original
return of service shall be filed with the clerk, along with a copy of the
return receipt evidencing such delivery. (5) If the sealed envelope is returned
with an endorsement showing refusal to accept delivery, the party or the
party's attorney may send a copy of the process and petition or other document
by first-class mail addressed to the party to be served, or may elect other
methods of service. If mailed, service shall be considered obtained three days
after the mailing by first-class mail, postage prepaid, which shall be
evidenced by a certificate of service filed with the clerk. If the unopened
envelope sent first-class mail is returned as undelivered for any reason, the
party or party's attorney shall file an amended certificate of service with the
clerk indicating nondelivery, and service by such mailing shall not be
considered obtained. Mere failure to claim return receipt delivery is not
refusal of service within the meaning of this subsection.
History: L. 1963, ch. 303,
60-308; L. 1971, ch.195, § 1; L. 1972, ch. 221, § 1; L. 1976, ch. 253, § 1; L.
1982, ch. 152, § 23; L. 1986, ch. 215, § 16; L. 1989, ch. 178, § 1; L. 1990,
ch. 202, § 9; L. 2000, ch. 175, § 4; July 1.
Opening default judgment rendered on service by
publication
(a) Procedure. A party against whom a
judgment has been rendered without other service than publication in a
newspaper, may, at any time within two (2) years after the entry of the
judgment, have the same opened and be let in to defend. Before the judgment may
be opened the applicant shall give notice to the adverse party of his or her
intention to make such an application and shall file a full answer to the
petition, pay all costs if the court require them to be paid, and make it
appear to the satisfaction of the court by affidavit that during the pendency
of the action the applicant had no actual notice thereof in time to appear in
court and make a defense. The adverse party on the hearing of the application
may present counter affidavits.
(b) Sale for value after six months.
If no proceedings are commenced under subsection (a) within six (6) months from
the date the judgment was entered, any sale of property made to a purchaser for
value in reliance upon the judgment, is not affected by any such proceedings.
(c) Judicial sales. If property is
sold on order of sale under the judgment sought to be opened, the sale is not
affected by any proceedings brought under subsection (a). Unless the court
finds from affidavits or other evidence that actual notice has been given
before judgment to the defendants served only by publication, the proceeds of
the sale shall be impounded by the court and not distributed (1) until three
months have elapsed from the time the judgment was entered, or (2) until
proceedings under subsection (a), if brought within said three months period,
are disposed of and the right to the impounded proceeds determined.
(d) Bond in lieu of impounding
proceeds. In lieu of impounding the proceeds of sale as provided in subsection
(c) any party having an interest under the judgment may give a bond to be
approved by the court, for the payment of an amount not exceeding the amount of
the proceeds of sale, to other persons found in such proceedings to be entitled
thereto.
History: L. 1963, ch. 303,
60-309; Jan. 1, 1964.
Procedure where only part of defendants
served
(a) Same. Where the action is against
two or more defendants, and one or more shall have been served, but not all of
them, the plaintiff may proceed as follows:
First. If the
action be against defendants jointly indebted upon contract, the plaintiff may
proceed against the defendants served, unless the court otherwise direct; and
if he or she recover judgment it may be entered against all the defendants thus
jointly indebted so far only as that it may be enforced against the joint
property of all, and the separate property of the defendants served.
Second. If the
action be against defendants severally liable, the plaintiff may, without
prejudice to his or her rights against those not served, proceed against the
defendants served in the same manner as if they were the only defendants.
(b) Same. Nothing in this section
shall be so construed as to make a judgment against one or more defendants
jointly or severally liable a bar to another action against those not served.
History: L. 1963, ch. 303,
60-310; Jan. 1, 1964.
Where process may be served
All process issued for service from
any court within the state may be served anywhere within the territorial limits
of the state and, when authorized by law, may be served outside this state.
History: L. 1963, ch. 303,
60-311; L. 1990, ch. 202, § 10; Jan. 1, 1991.
Proof of service
Proof of service shall be made as
follows:
(a) Personal and residence service.
(1) Every officer to whom summons or other process shall be delivered for
service within or without the state, shall make a statement subject to penalty
of perjury as provided in K.S.A. 21-3805 and amendments thereto as to the time,
place and manner of service of such writ.
(2) If
service of such process is directed to and delivered to a person, other than an
officer, for service, such person shall make affidavit as to the time, place
and manner of such person's service thereof.
(b) Service by return receipt
delivery. Service by return receipt delivery shall be proven in the manner
provided by subsection (c) of K.S.A. 60-303 or subsection (e) of K.S.A. 60-308,
and amendments thereto.
(c) Publication service. Service by
publication shall be proven by an affidavit showing the dates upon which and
the newspaper in which the notice of publication was published. A copy of the
notice shall be attached to the affidavit which shall be filed in the cause.
When mailing of copies of the publication notice is required in accordance with
subsection (e) of K.S.A. 60-307 and amendments thereto, the proof of such
mailing shall be by affidavit of the person who mailed such copies and such
affidavit shall be filed with the clerk of the court in which the action has
been filed. If such mailing was by certified mail, the return receipt shall be
made a part of the affidavit and filed therewith.
(d) Time for return. The officer or
other person receiving a summons or other process shall make a return of
service promptly and in any event within 10 days after the service is effected.
If the process cannot be served it shall be returned to the court within 30
days after the date of issue with a statement of the reason for the failure to
serve the same, except the time for service thereof may be extended up to 90
days from the date of issue by order of the court or judge of the court to
which it is returnable. Immediately upon receipt of the return upon any summons
or other process by the clerk of the court issuing the same, such clerk shall
mail a copy of such return to the attorney for the party requesting the
issuance of such summons or other process or, if such party has no attorney,
then to the requesting party's self.
History: L. 1963, ch. 303,
60-312; L. 1969, ch.283, § 1; L. 1970, ch. 235, § 2; amended by Supreme Court
order dated July 28, 1976; L. 1986, ch. 215, § 17; L. 1990, ch. 202, § 11; L.
1998, ch. 100, § 1; L. 2000, ch. 175, § 5; July 1.
Amendment of return
At any time in his or her discretion
and upon such terms as he or she deems just, the judge may allow any process,
return or proof of service thereof to be amended, unless it clearly appears
that material prejudice would result to the substantial rights of the party
against whom the process issued.
History: L. 1963, ch. 303,
60-313; Jan. 1, 1964.
In Kansas,
lobbyists and state officials are always active in transforming laws concerning
civil procedure. As a result, state information
offered on our website may have been amended recently. For contemporary process serving and civil
statutes, visit the official Kansas Judicial System Court website: http://www.accesskansas.org or www.kansas.gov
