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- Definition -
Service of Process
DEFINITION: Service of Process
Delivery of a writ, summons, or other legal papers to the person required to
respond to them.
Process is the general term for the legal document by which a lawsuit is
started and the court asserts its jurisdiction over the parties and the
controversy. In modern U.S. law, process is usually a summons. A summons is
a paper that tells a defendant that he is being sued in a specific court
that the plaintiff believes has jurisdiction. Served with the summons is a
complaint that contains the plaintiff's allegations of wrongdoing by the
defendant and the legal remedy sought by the plaintiff. The summons also
informs the defendant that he has a specified number of days under law to
respond to the summons and complaint. If the defendant does not respond, the
plaintiff may seek a default judgment from the court, granting the plaintiff
the legal relief specified in the complaint.
Rules of Civil Procedure and Criminal Procedure determine the proper form of
legal process and how it should be served. The rules vary among federal and
state courts, but they are meant to give the defendant notice of the
proceedings and to command him to either respond to the allegations or to
appear at a specified time and answer the claim or criminal charge. The
concept of notice is critical to the integrity of legal proceedings. due
process forbids legal action against a person unless the person has been
given notice and an opportunity to be heard.
Process must be properly served on all parties in an action. Anyone who is
not served is not bound by the decision in the case. A person who believes
that proper service has not taken place may generally challenge the service
without actually making a formal appearance in the case.
Whether service was proper is usually determined at a pretrial hearing. A
defendant must request a special appearance before the court. A special
appearance is made for the limited purpose of challenging the sufficiency of
the service of process or the Personal Jurisdiction of the court. No other
issues may be raised without the proceeding becoming a general appearance.
The court must then determine whether it has jurisdiction over the defendant.