Session of 2000
         
HOUSE BILL No. 2806
         
By Committee on Judiciary
         
2-2
         

  9             AN  ACT concerning civil procedure; relating to service of process;
10             amending K.S.A. 17-1642, 60-303, 61-1803 and 61-1807 and K.S.A.
11             1999 Supp. 60-312 and repealing the existing sections.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 17-1642 is hereby amended to read as follows: 17-
15       1642. (a) Except as provided in subsection (j), the association or cor-
16       poration surviving or resulting from any merger or consolidation, within
17       10 days after the effective date of the merger or consolidation, shall notify
18       each member or stockholder of any association or corporation of this state
19       so merging or consolidating who objected thereto in writing and whose
20       shares either were not entitled to vote or were not voted in favor of the
21       merger or consolidation, and who filed such written objection with the
22       association or corporation before the taking of the vote on the merger or
23       consolidation, that the merger or consolidation has become effective. If
24       any such member or stockholder, within 20 days after the date of mailing
25       of the notice, shall demand in writing, from the association or corporation
26       surviving or resulting from the merger or consolidation, payment of the
27       value of the member's or stockholder's interest, the surviving or resulting
28       association or corporation shall pay to the member or stockholder, within
29       30 days after the expiration of the period of 20 days, the value of the
30       member's or stockholder's interest on the effective date of the merger or
31       consolidation, exclusive of any element of value arising from the expec-
32       tation or accomplishment of the merger or consolidation.
33             (b) If during a period of 30 days following the period of 20 days
34       provided for in subsection (a), the association and any such member or
35       stockholder fail to agree upon the value of such member's or stockholder's
36       interest, any such member or stockholder, or the association or corpo-
37       ration surviving or resulting from the merger or consolidation, may de-
38       mand a determination of the value of the member's or stockholder's in-
39       terest by an appraiser or appraisers to be appointed by the district court,
40       by filing a petition with the court within four months after the expiration
41       of the thirty-day period.
42             (c) Upon the filing of any such petition by a member or stockholder,
43       service of a copy shall be made upon the surviving association or corpo-


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  1       ration, which shall file with the clerk of the district court, within 10 days
  2       after such service, a duly verified list containing the names and addresses
  3       of all members or stockholders who have demanded payment for such
  4       member's or stockholder's interest and with whom agreements as to the
  5       value of such member's or stockholder's interest have not been reached
  6       by the association or corporation. If the petition is filed by the surviving
  7       association or corporation, the petition shall be accompanied by such duly
  8       verified list. The surviving association or corporation shall give notice of
  9       the time and place fixed for the hearing of such petition pursuant to
10       subsection (b) (c) of K.S.A. 60-303, and amendments thereto, to the
11       members or stockholders shown upon the list at the addresses therein
12       stated and notice shall also be given by publishing a notice at least once,
13       at least one week before the day of the hearing, in a newspaper of general
14       circulation in the county in which the district court is located. The court
15       may direct such additional publication of notice as the court deems ad-
16       visable. The forms of the notices by mail and by publication shall be
17       approved by the court.
18             (d) After the hearing on the petition the court shall determine the
19       members or stockholders who have complied with the provisions of this
20       section and become entitled to the valuation of and payment for such
21       member's or stockholder's interest, and shall appoint an appraiser or ap-
22       praisers to determine such value. The appraiser or appraisers may ex-
23       amine any of the books and records of the associations or corporations
24       the stock of which such appraiser or appraisers is charged with the duty
25       of valuing, and following an investigation, the appraiser or appraisers shall
26       make a determination of the value of the member's or stockholder's in-
27       terest. The appraiser or appraisers shall also afford a reasonable oppor-
28       tunity to the parties interested to submit to the appraiser or appraisers
29       pertinent evidence on the value of the member's or stockholder's interest.
30       The appraiser or appraisers, also, shall have the powers and authority
31       conferred upon masters by K.S.A. 60-253, and amendments thereto.
32             (e) The appraiser or appraisers shall determine the value of the stock
33       of the members or stockholders adjudged by the district court to be en-
34       titled to payment therefor and shall file a report respecting such value in
35       the office of the clerk of the district court, and notice of the filing of such
36       report shall be given by the petitioners to the parties in interest. Such
37       report shall be subject to exceptions to be heard before the court both
38       upon the law and facts. The court by decree shall determine the value of
39       the stock of the members or stockholders entitled to payment and shall
40       direct the payment of such value, together with interest, if any, to the
41       members or stockholders entitled by the surviving or resulting corpora-
42       tion. Upon payment of the judgment by the surviving or resulting cor-
43       poration, the clerk of the district court shall surrender to the surviving


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  1       association or corporation the certificates of shares of stock held by the
  2       clerk pursuant to subsection (f). The decree may be enforced as other
  3       judgments of the district court may be enforced, whether such surviving
  4       or resulting association be an association of this state or of any other state.
  5             (f) At the time of appointing the appraiser or appraisers, the court
  6       shall require the members or stockholders who hold certificated shares
  7       and who demanded payment for the shares to submit the certificates of
  8       stock to the clerk of the court, to be held by the clerk pending the ap-
  9       praisal proceedings. If any member or stockholder fails to comply with
10       such direction, the court shall dismiss the proceedings as to such member
11       or stockholder.
12             (g) The cost of any such appraisal, including reasonable fees and ex-
13       penses of the appraiser or appraisers, but exclusive of fees of counsel or
14       of experts retained by any party, shall be determined by the court and
15       taxed upon the parties to such appraisal or any of them as appears to be
16       equitable, except that the cost of giving the notice by publication and by
17       certified mail shall be paid by the surviving association or corporation.
18       Postjudgment interest, if any, shall be in accordance with K.S.A. 16-204,
19       and amendments thereto, to be paid upon the value of the stock of the
20       members or stockholders entitled thereto.
21             (h) Any member or stockholder who has demanded payment of the
22       member's or stockholder's interest as herein provided shall not thereafter
23       be entitled to vote such member's or stockholder's stock for any purpose
24       or be entitled to the payment of dividends or other distribution on such
25       stock, except dividends or other distributions payable to members or
26       stockholders of record at a date which is prior to the effective date of the
27       merger or consolidation, unless the appointment of an appraiser or ap-
28       praisers shall not be applied for within the time herein provided, or the
29       proceeding be dismissed as to such member or stockholder, or unless
30       such member or stockholder with the written approval of the surviving
31       association or corporation shall deliver to the association or corporation
32       a written withdrawal of the member's or stockholder's objections to and
33       an acceptance of the merger or consolidation, in any of which cases the
34       right of such member or stockholder to payment for the member's or
35       stockholder's interest shall cease.
36             (i) The shares of the surviving or resulting association or corporation
37       into which the shares of such objecting members or stockholders would
38       have been converted had they assented to the merger or consolidation
39       shall have the status of authorized and unissued shares of the surviving
40       or resulting association or corporation.
41             (j) This section shall not be applicable to the members, stockholders
42       or other holders of equity securities of the surviving association or cor-
43       poration in any merger where the active members of the surviving asso-


4

  1       ciation or corporation continue to be eligible to be members of the sur-
  2       viving association or corporation after the merger and the agreement of
  3       merger does not amend the articles of incorporation, and shall not apply
  4       to the members, stockholders or other holders of equity securities of the
  5       constituent association or corporation not surviving the merger in any
  6       merger where the active members of such constituent association or cor-
  7       poration are eligible to become members of the surviving association or
  8       corporation on the same terms and conditions as other similarly classified
  9       members of the surviving association or corporation.
10             Section  2. K.S.A. 60-303 is hereby amended to read as follows: 60-
11       303. (a) Methods of service of process within this state, except service by
12       publication as provided in K.S.A. 60-307, and amendments thereto, are
13       described in this section. Methods of out-of-state service of process are
14       described in K.S.A. 60-308, and amendments thereto.
15             (b) Service by certified mail. Except if the attorney for the party or
16       the party, if the party is not represented by an attorney, requests personal
17       or residence service pursuant to subsection (c) (d); if the attorney or the
18       party requesting service elects to serve process by certified mail pursuant
19       to this subsection (c); as provided in K.S.A. 60-903, 60-2401 or 60-3104,
20       and amendments thereto; or as otherwise provided by law, the sheriff of
21       the county wherein the action is filed shall serve any process by certified
22       mail, any method authorized by this section.
23             (c) Service by certified mail. Service of process by certified mail shall
24       be evidenced by return receipt signed by any person or by restricted
25       delivery, unless otherwise permitted by this article. The sheriff, attorney
26       for the party seeking service or the party, if the party is not represented
27       by an attorney, shall cause a copy of the process and petition or other
28       document to be placed in an envelope addressed to the person to be
29       served in accordance with K.S.A. 60-304, and amendments thereto, ad-
30       equate postage to be affixed and the sealed envelope to be placed in the
31       United States mail as certified mail return receipt requested with instruc-
32       tions to the delivering postal employee to show to whom delivered, date
33       of delivery, and address where delivered. The sheriff, party's attorney or
34       the party, if the party is not represented by an attorney, shall execute a
35       return on service stating the nature of the process, the date on which the
36       process was mailed, and the name and address on the envelope containing
37       the process mailed as certified mail return receipt requested. The sheriff,
38       party or the party's attorney shall file the return on service and the return
39       receipt or return envelope in the records of the action. Service of process
40       shall be considered obtained under K.S.A. 60-203, and amendments
41       thereto, upon the delivery of the certified mail envelope. If the certified
42       mail envelope is returned with an endorsement showing refusal of deliv-
43       ery, the sheriff, serving party or the party's attorney shall send a copy of


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  1       the process and petition or other document to be served to the defendant
  2       by ordinary, first-class mail. The mailing shall be evidenced by a certificate
  3       of mailing which shall be filed with the clerk. Service shall be considered
  4       obtained upon the mailing by ordinary, first-class mail. Failure to claim
  5       certified mail service is not refusal of service within the meaning of this
  6       subsection.
  7             (c) (d) Personal and residence service. (1) When The plaintiff files
  8       may file a written request with the clerk for service other than by certified
  9       mail, service of process shall be made by personal or residence service.
10       Personal service shall be made by delivering or offering to deliver a copy
11       of the process and accompanying documents to the person to be served.
12       Residence service shall be made by leaving a copy of the process and
13       petition, or other document to be served, at the dwelling house or usual
14       place of abode of the person to be served with some person of suitable
15       age and discretion residing therein. If service cannot be made upon an
16       individual, other than a minor or a disabled person, by personal or resi-
17       dence service, service may be made by leaving a copy of the process and
18       petition, or other document to be served, at the defendant's dwelling
19       house or usual place of abode and mailing a notice that such copy has
20       been left at such house or place of abode to the individual by first-class
21       mail.
22             (2) When process is to be served under this subsection, the clerk of
23       the court shall deliver the process and sufficient copies of the process and
24       petition, or other document to be served, to the sheriff of the county
25       where the process is to be served or, if requested, to a person appointed
26       to serve process or to the plaintiff's attorney.
27             (3) Service, levy and execution of all process under this subsection,
28       including, but not limited to, writs of execution, orders of attachment,
29       replevin orders, orders for delivery, writs of restitution and writs of assis-
30       tance, shall be made by a sheriff within the sheriff's county, by the sheriff's
31       deputy, by an attorney admitted to the practice of law before the supreme
32       court of Kansas or by some person appointed as a process server by a
33       judge or clerk of the district court, except that a subpoena may also be
34       served by any other person who is not a party and is not less than 18 years
35       of age. Process servers shall be appointed freely and may be authorized
36       either to serve process in a single case or in cases generally during a fixed
37       period of time. A process server or an authorized attorney may make the
38       service anywhere in or out of the state and shall be allowed the fees
39       prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff and
40       such other fees and costs as the court shall allow. All persons authorized
41       under this subsection to serve, levy and execute process shall be consid-
42       ered an "officer" as used in K.S.A. 60-706 and 60-2401 and amendments
43       thereto.


6

  1             (4) In all cases when the person to be served, or an agent authorized
  2       by the person to accept service of process, refuses to receive copies
  3       thereof, the offer of the duly authorized process server to deliver copies
  4       thereof, and the refusal, shall be a sufficient service of the process.
  5             (d) (e) Acknowledgment or appearance. An acknowledgment of serv-
  6       ice on the summons is equivalent to service. The voluntary appearance
  7       by a defendant is equivalent to service as of the date of appearance.
  8             Sec.  3 K.S.A. 1999 Supp. 60-312 is hereby amended to read as fol-
  9       lows: 60-312. Proof of service shall be made as follows:
10             (a) Personal and residence service.  (1) Every officer to whom sum-
11       mons or other process shall be delivered for service within or without the
12       state, shall make a statement subject to penalty of perjury as provided in
13       K.S.A. 21-3805 and amendments thereto as to the time, place and manner
14       of service of such writ.
15             (2) If service of such process is directed to and delivered to a person,
16       other than an officer, for service, such person shall make affidavit as to
17       the time, place and manner of such person's service thereof.
18             (b) Service by certified mail. Service by certified mail shall be proven
19       in the manner provided by subsection (b) (c) of K.S.A. 60-303 or subsec-
20       tion (e) of K.S.A. 60-308, and amendments thereto.
21             (c) Publication service. Service by publication shall be proven by an
22       affidavit showing the dates upon which and the newspaper in which the
23       notice of publication was published. A copy of the notice shall be attached
24       to the affidavit which shall be filed in the cause. When mailing of copies
25       of the publication notice is required in accordance with subsection (e) of
26       K.S.A. 60-307 and amendments thereto, the proof of such mailing shall
27       be by affidavit of the person who mailed such copies and such affidavit
28       shall be filed with the clerk of the court in which the action has been
29       filed. If such mailing was by certified mail, the return receipt shall be
30       made a part of the affidavit and filed therewith.
31             (d) Time for return. The officer or other person receiving a summons
32       or other process shall make a return of service promptly and in any event
33       within 10 days after the service is effected. If the process cannot be served
34       it shall be returned to the court within 30 days after the date of issue with
35       a statement of the reason for the failure to serve the same, except the
36       time for service thereof may be extended up to 90 days from the date of
37       issue by order of the court or judge of the court to which it is returnable.
38       Immediately upon receipt of the return upon any summons or other pro-
39       cess by the clerk of the court issuing the same, such clerk shall mail a
40       copy of such return to the attorney for the party requesting the issuance
41       of such summons or other process or, if such party has no attorney, then
42       to the requesting party's self.
43             Sec.  4. K.S.A. 61-1803 is hereby amended to read as follows: 61-


7

  1       1803. (a) Methods of service of process within this state, except service
  2       by publication, are described in this section. Service of process outside
  3       the state shall be made in substantial compliance with the applicable
  4       provisions of K.S.A. 60-308, and amendments thereto.
  5             (b) Service by certified mail. Except if the attorney for the party or
  6       the party, if the party is not represented by an attorney, requests personal
  7       or residence service pursuant to subsection (c) (d); if the attorney or the
  8       party requesting service elects to serve process by certified mail pursuant
  9       to this subsection (d); or as otherwise provided by law, the sheriff of the
10       county wherein the action is filed shall serve any process by certified mail,
11       any method authorized by this section.
12             (c) Service by certified mail. Service of process by certified mail shall
13       be evidenced by return receipt signed by any person or by restricted
14       delivery, unless otherwise permitted by this article. The sheriff, attorney
15       for the party seeking service or the party, if the party is not represented
16       by an attorney, shall cause a copy of the process and petition or other
17       document to be placed in an envelope addressed to the person to be
18       served in accordance with K.S.A. 61-1805, and amendments thereto, ad-
19       equate postage to be affixed and the sealed envelope to be placed in the
20       United States mail as certified mail return receipt requested with instruc-
21       tions to the delivering postal employee to show to whom delivered, date
22       of delivery, and address where delivered. The sheriff, party's attorney or
23       the party, if the party is not represented by an attorney, shall execute a
24       return on service stating the nature of the process, the date on which the
25       process was mailed, and the name and address on the envelope containing
26       the process mailed as certified mail return receipt requested. The sheriff,
27       party or the party's attorney shall file the return on service and the return
28       receipt or return envelope in the records of the action. Service of process
29       shall be considered obtained under K.S.A. 61-1703, and amendments
30       thereto, upon the delivery of the certified mail envelope. If the certified
31       mail envelope is returned with an endorsement showing refusal of deliv-
32       ery, the sheriff, serving party or the party's attorney shall send a copy of
33       the process and petition or other document to be served to the defendant
34       by ordinary, first-class mail. The mailing shall be evidenced by a certificate
35       of mailing which shall be filed with the clerk. Service shall be considered
36       obtained upon the mailing by ordinary, first-class mail. Failure to claim
37       certified mail service is not refusal of service within the meaning of this
38       subsection.
39             (c) (d) Personal and residence service. (1) When The plaintiff files
40       may file a written request with the clerk for service other than by certified
41       mail, service of process shall be made by personal or residence service.
42       Personal service shall be made by delivering or offering to deliver a copy
43       of the process and accompanying documents to the person to be served.


8

  1       Residence service shall be made by leaving a copy of the process and
  2       petition, or other document to be served, at the dwelling house or usual
  3       place of abode of the person to be served with some person of suitable
  4       age and discretion residing therein. If service cannot be made upon an
  5       individual, other than a minor or a disabled person, by personal or resi-
  6       dence service, service may be made by leaving a copy of the process and
  7       petition, or other document to be served, at the defendant's dwelling
  8       house or usual place of abode and mailing a notice that such copy has
  9       been left at such house or place of abode to the individual by first-class
10       mail.
11             (2) When process is to be served under this subsection, the clerk of
12       the court shall deliver the process and sufficient copies of the process and
13       petition, or other document to be served, to the sheriff of the county
14       where the process is to be served or, if requested, to a person appointed
15       to serve process or to the plaintiff's attorney.
16             (3) Service, levy and execution of all process under this subsection,
17       including, but not limited to, writs of execution, orders of attachment,
18       replevin orders, orders for delivery, writs of restitution and writs of assis-
19       tance, shall be made by a sheriff within the sheriff's county, by the sheriff's
20       deputy, by an attorney admitted to the practice of law before the supreme
21       court of Kansas or by some person appointed as a process server by a
22       judge or clerk of the district court, except that a subpoena may also be
23       served by any other person who is not a party and is not less than 18 years
24       of age. Process servers shall be appointed freely and may be authorized
25       either to serve process in a single case or in cases generally during a fixed
26       period of time. A process server or an authorized attorney may make the
27       service anywhere in or out of the state and shall be allowed the fees
28       prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff and
29       such other fees and costs as the court shall allow. All persons authorized
30       under this subsection to serve, levy and execute process shall be consid-
31       ered an "officer" as used in K.S.A. 60-706 and 60-2401 and amendments
32       thereto.
33             (4) In all cases when the person to be served, or an agent authorized
34       by the person to accept service of process, refuses to receive copies
35       thereof, the offer of the duly authorized process server to deliver copies
36       thereof, and the refusal, shall be a sufficient service of the process.
37             (d) (e) Acknowledgment or appearance. An acknowledgment of serv-
38       ice on the summons is equivalent to service. The voluntary appearance
39       by a defendant is equivalent to service as of the date of appearance.
40             Sec.  5. K.S.A. 61-1807 is hereby amended to read as follows: 61-
41       1807. Proof of service shall be made as follows: (a) Personal and res-
42       idence service.  (1) Every officer to whom summons or other process
43       shall be delivered for service within or without the state, shall make return


9

  1       thereof in writing stating the time, place and manner of service of such
  2       writ, and shall sign such officer's name to such return.
  3             (2) If such process is directed to and delivered to a person other than
  4       by an officer for service, such person shall make affidavit as to the time,
  5       place and manner of such person's service thereof.
  6             (b) Service by mail. Service by certified mail shall be proven in the
  7       manner provided by subsection (e) of K.S.A. 60-308 or subsection (b) (c)
  8       of K.S.A. 61-1803, and amendments thereto.
  9             (c) Publication service. Service by publication shall be proven by an
10       affidavit showing the dates upon, and the newspaper in which the notice
11       of publication was published. A copy of the notice shall be attached to
12       the affidavit which shall be filed in the cause. When mailing of copies of
13       the publication notice is required in accordance with subsection (e) of
14       K.S.A. 60-307, and amendments thereto, the proof of such mailing shall
15       be by affidavit of the person who mailed such copies and such affidavit
16       shall be filed with the clerk of the court in which the action has been
17       filed. Any return receipt shall be made a part of the affidavit and filed
18       therewith.
19             (d) Time for return. The officer or other person receiving a summons
20       or other process in forcible detainer cases shall make return of service
21       promptly and, in any event, no later than three days before the date stated
22       in the summons for the defendant to either appear or plead to the peti-
23       tion. In all other cases return of service shall be made promptly and in
24       any event no later than five days before the date stated in the summons
25       for the defendant to either appear or plead to the petition. If the process
26       cannot be served as directed it shall be returned to the court forthwith
27       with a statement of the reason for the failure to serve the same.
28             (e) Amendment of return. At any time in the judge's discretion and
29       upon such terms as the judge deems just, the judge may allow any process,
30       return or proof of service thereof to be amended, unless it clearly appears
31       that material prejudice would result to the substantial rights of the party
32       against whom the process issued. 
33       Sec.  6. K.S.A. 17-1642, 60-303, 61-1803 and 61-1807 and K.S.A.
34       1999 Supp. 60-312 are hereby repealed.
35        Sec.  7. This act shall take effect and be in force from and after its
36       publication in the statute book.