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Service of process limits

So last week The Legal Genealogist tackled the question of service of process — the notion that somebody has to be given a copy of the documents that require an appearance in court.

subpoenaProcess, in this regard, is the legal term for the summons, mandate, or writ used by a court to make the defendant come into court in a legal action or comply with its orders, and service of process the actual delivery of the document or documents the way the law required.1

And the example I used was that of my rascal second great grandfather George Washington Cottrell who skipped out of Colorado County, Texas, in the 1840s, never having been served with the arrest warrants issued when he was indicted for two different assault and battery cases.2 (We won’t mention here the murder case he managed to skip out on at the same time…)

That post prompted a great question on Facebook from my friend and colleague Jill Morelli: “Could a lack of service of process be interpreted that he was no longer in the county or is that a stretch? How far outside the jurisdiction could the summons server go to deliver the summons?”3

It’s a particularly great question because it lets me give the answer I love best.

It depends.

As with so many other issues that guide us in understanding and using legal records in genealogy, this one comes down to a matter of figuring out what the law was at the time the record was created in the place where the record was created.

And every state’s law is going to be different, and may well be different from one time in that state’s history to another.

In most cases, the process-serving authority of a public official — the constable or sheriff who was supposed to deliver the documents — stopped at the borders of the jurisdiction he served. That could be a county; it could be an even smaller part of a county.

Look, for example, at Ohio law in 1824. It provided, first, for the Ohio Supreme Court — to hear appeals, try major civil cases, and issue major writs — and for courts of common pleas — to hear appeals from justices of the peace and to handle probates and estates and general civil and criminal matters.4

That particular statute called for the sheriff to service process, but clearly implicit in all of the service provisions was that the sheriff’s authority ended at the county lines.5

When the defendant in a case lived in another county, then an order was to be directed to the sheriff or coroner in the other county to “execute and return the same, in the same manner …” as if it had been issued and served in the original county.6

In a criminal case where an indictment was issued, an arrest warrant could be executed “in any county in this state” — but the law also said that when a defendant lived in another county, the arrest order should be “directed to the sheriff or other proper officer of the county where said defendant shall reside or may be found.”7

But where the case was one of the relatively minor cases allowed to be heard by a justice of the peace, service was to be made by the constable — only within the township in which the defendant lived and where the constable served. Special rules applied when the defendant lived out of the township or even out of the county.8

All that variation — and that’s just one set of statutes, in one state, in one year!

So the answer to Jill’s question is: it depends, on the law of the time and place, and it can vary depending on the kind of case and even the kind of court where the process itself was issued.

And, of course, on just how good the defendant was at dodging the process server… but that’s a whole ‘nother story…


SOURCES

  1. See Judy G. Russell, “Serving up process,” The Legal Genealogist, posted 5 Jan 2017 (http://www.legalgenealogist.com/blog : accessed 8 Jan 2017).
  2. Colorado County, Texas, District Court Criminal Case Files No. 488-489, State v. George W. Cotrel, 30 March 1847; District Court Clerk’s Office, Columbus.
  3. Jill Morelli, comment on Facebook status of the author, posted 5 January 2017.
  4. §§1-4, “An Act to organize the Judicial Courts and regulate their practice,” 18 February 1824, in Acts of a General Nature, … of the State of Ohio, … December 1, 1823 (Columbus, Ohio : H.H. Olmsted, 1824), 50-51; digital images, Google Books (http://books.google.com : accessed 8 Jan 2017).
  5. See e.g. §16, calling on the sheriff to note when a defendant “is … not to be found in his county…” Ibid., at 53.
  6. Ibid., §17.
  7. §§4-5, “An Act providing for the service and return of process in certain cases,” 22 January 1824, in ibid., at 93-94.
  8. §§8-9, “An Act defining the duties of justices of the peace, and constables in criminal and civil cases,” 25 February 1824, in ibid., at 392-394.
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