Session of 2000
         
HOUSE BILL No. 2956
         
By Representatives Flora, Hermes, Hutchins, Jenkins, Kirk, Kuether,
         
Mays, Nichols and Toelkes
         
2-9
         

10             AN  ACT concerning civil procedure for limited actions; amending K.S.A.
11             61-1803 and 61-1807 and repealing the existing sections.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             New Section  1. The supreme court of this state shall adopt rules to
15       govern the electronic filing of court matters and the storage of and access
16       by the public to the same, to govern the form of pleadings, other docu-
17       ments to be filed and such other matters as is necessary under the code
18       of civil procedure for limited actions.
19             New Sec.  2. Judicial districts in this state may accept for filing under
20       this act lawsuits filed in the same method in which lawsuits are filed prior
21       to the adoption of this act, or filed pursuant to an electronic filing pro-
22       cedure, or a combination of the two, as long as any such filings comply
23       with the rules of the supreme court of this state.
24             Sec.  3. K.S.A. 61-1803 is hereby amended to read as follows: 61-
25       1803. (a) Methods of service of process within this state, except service
26       by publication, are described in this section. Service of process outside
27       the state shall be made in substantial compliance with the applicable
28       provisions of K.S.A. 60-308, and amendments thereto.
29             (b) Service by certified mail. Except if the attorney for the party or
30       the party, if the party is not represented by an attorney, requests personal
31       or residence service pursuant to subsection (c); if the attorney or the party
32       requesting service elects to serve process by certified mail pursuant to
33       this subsection; or as otherwise provided by law, the sheriff of the county
34       wherein the action is filed shall serve any process by certified mail, evi-
35       denced by return receipt signed by any person or by restricted delivery,
36       unless otherwise permitted by this article. The sheriff, attorney for the
37       party seeking service or the party, if the party is not represented by an
38       attorney, shall cause a copy of the process and petition or other document
39       to be placed in an envelope addressed to the person to be served in
40       accordance with K.S.A. 61-1805, and amendments thereto, adequate
41       postage to be affixed and the sealed envelope to be placed in the United
42       States mail as certified mail return receipt requested with instructions to
43       the delivering postal employee to show to whom delivered, date of deliv-


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  1       ery, and address where delivered. The sheriff, party's attorney or the
  2       party, if the party is not represented by an attorney, shall execute a return
  3       on service stating the nature of the process, the date on which the process
  4       was mailed, and the name and address on the envelope containing the
  5       process mailed as certified mail return receipt requested. The sheriff,
  6       party or the party's attorney shall file the return on service and the return
  7       receipt or return envelope in the records of the action. Service of process
  8       shall be considered obtained under K.S.A. 61-1703, and amendments
  9       thereto, upon the delivery of the certified mail envelope. If the certified
10       mail envelope is returned with an endorsement showing refusal of deliv-
11       ery, the sheriff, serving party or the party's attorney shall send a copy of
12       the process and petition or other document to be served to the defendant
13       by ordinary, first-class mail. The mailing shall be evidenced by a certificate
14       of mailing which shall be filed with the clerk. Service shall be considered
15       obtained upon the mailing by ordinary, first-class mail. Failure to claim
16       certified mail service is not refusal of service within the meaning of this
17       subsection.
18             (c) Personal and residence service. (1) When the plaintiff files a writ-
19       ten request with the clerk for service other than by certified mail, service
20       of process shall be made by personal or residence service. Personal service
21       shall be made by delivering or offering to deliver a copy of the process
22       and accompanying documents to the person to be served. Residence serv-
23       ice shall be made by leaving a copy of the process and petition, or other
24       document to be served, at the dwelling house or usual place of abode of
25       the person to be served with some person of suitable age and discretion
26       residing therein. If service cannot be made upon an individual, other than
27       a minor or a disabled person, by personal or residence service, service
28       may be made by leaving a copy of the process and petition, or other
29       document to be served, at the defendant's dwelling house or usual place
30       of abode and mailing a notice that such copy has been left at such house
31       or place of abode to the individual by first-class mail.
32             (2) When process is to be served under this subsection, the clerk of
33       the court shall deliver the process and sufficient copies of the process and
34       petition, or other document to be served, to the sheriff of the county
35       where the process is to be served or, if requested, to a person appointed
36       to serve process or to the plaintiff's attorney.
37             (3) Service, levy and execution of all process under this subsection,
38       including, but not limited to, writs of execution, orders of attachment,
39       replevin orders, orders for delivery, writs of restitution and writs of assis-
40       tance, shall be made by a sheriff within the sheriff's county, by the sheriff's
41       deputy, by an attorney admitted to the practice of law before the supreme
42       court of Kansas or by some person appointed as a process server by a
43       judge or clerk of the district court, except that a subpoena may also be


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  1       served by any other person who is not a party and is not less than 18 years
  2       of age. Process servers shall be appointed freely and may be authorized
  3       either to serve process in a single case or in cases generally during a fixed
  4       period of time. A process server or an authorized attorney may make the
  5       service anywhere in or out of the state and shall be allowed the fees
  6       prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff and
  7       such other fees and costs as the court shall allow. All persons authorized
  8       under this subsection to serve, levy and execute process shall be consid-
  9       ered an "officer" as used in K.S.A. 60-706 and 60-2401 and amendments
10       thereto.
11             (4) In all cases when the person to be served, or an agent authorized
12       by the person to accept service of process, refuses to receive copies
13       thereof, the offer of the duly authorized process server to deliver copies
14       thereof, and the refusal, shall be a sufficient service of the process.
15             (d) Acknowledgment or appearance. An acknowledgment of service
16       on the summons is equivalent to service. The voluntary appearance by a
17       defendant is equivalent to service as of the date of appearance. (a) Service,
18       levy and execution of all process under this act shall be made by a sheriff
19       or deputy within the sheriff's county, by an attorney admitted to the
20       practice of law before the supreme court of Kansas, by a party to a lawsuit,
21       or by some person appointed as a process server by a judge, except that
22       a subpoena may also be served by any person who is not a party and is
23       not less than 18 years of age. An appointed process server may be an
24       individual, corporation, partnership, court employee or other legal entity.
25       An authorized attorney and appointed process server shall have the same
26       authority as the sheriff or deputy to serve, levy and execute all process
27       under this act, including, but not limited to, writs of execution, orders of
28       attachment, replevin orders, orders for delivery, writs of restitution and
29       writs of assistance. All persons authorized under this subsection to serve,
30       levy and execute process shall be considered an "officer" as used in K.S.A.
31       60-706 and 60-2401, and amendments thereto.
32             (b) Process servers shall be appointed freely and may be authorized
33       either to serve process in a single case or in cases generally during a fixed
34       period of time. A process server or an authorized attorney may make the
35       service anywhere in or out of the state and shall be allowed the fees pre-
36       scribed in K.S.A. 28-110, and amendments thereto, for the sheriff and
37       such other fees and costs as the court shall allow. The mileage and fees of
38       a appointed process server incurred in the service of process shall upon
39       order of the court be allowed as court costs in the lawsuit.
40             (c) The sheriff of the county where the lawsuit is filed shall serve all
41       process unless request is made by the party requesting issuance of process,
42       or the court enters an order, for someone else to serve the process. The
43       clerk of the court shall deliver, electronically or otherwise, the process and


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  1       petition or other document to be served.
  2             (d) The person serving process may serve the process in any of the
  3       methods set forth below in this subsection.
  4             (1) First class mail, certified mail or registered mail. Process may be
  5       sent to a person by first class mail, certified mail or registered mail, by
  6       placing a copy of the process and petition or other document to be served
  7       in an envelope addressed to the person to be served in accordance with
  8       K.S.A. 61-1805, and amendments thereto, at such person's last known
  9       address. The envelope used for such service shall be addressed to the
10       person in accordance with K.S.A. 61-1805, and amendments thereto, shall
11       contain adequate postage for the type of mail used, and shall contain such
12       additional endorsements or receipts as is required for the type of mail
13       used. Such envelope shall be sealed and placed in the United States mail.
14       Service by first class mail shall be complete when the envelope is placed
15       in the mail unless returned undelivered. Service by certified mail or reg-
16       istered mail shall be complete upon delivery of the envelope by the post
17       office. If the certified mail or registered mail envelope is returned with an
18       endorsement showing refusal of delivery, the person serving the same shall
19       send a copy of the process and petition or other document to be served
20       to the defendant by first-class mail. Service shall be considered obtained
21       upon the mailing by first-class mail unless returned undelivered. Failure
22       to claim certified mail or registered mail service is not refusal of service
23       within the meaning of this subsection.
24             (2) Personal and residence service. Personal service shall be made by
25       delivering or offering to deliver a copy of the process and accompanying
26       documents to the person to be served. Residence service shall be made by
27       leaving a copy of the process and petition, or other document to be served,
28       at the dwelling house or usual place of abode of the person to be served
29       with some person of suitable age and discretion residing therein. If service
30       cannot be made upon an individual, other than a minor or a disabled
31       person, by personal or residence service, service may be made by leaving
32       a copy of the process and petition, or other document to be served, at the
33       dwelling house or usual place of abode of the person to be served and
34       mailing a notice to the individual by first-class mail that such copy has
35       been left at such house or place of abode.
36             (3) Telefacsimile communication. Process may be sent to a person by
37       telefacsimile communication. Service is complete upon receipt of a confir-
38       mation generated by the transmitting machine.
39             (4) Internet electronic mail. Process may be sent to a person by in-
40       ternet electronic mail as provided in the rules to be adopted hereunder
41       by the supreme court.
42             (5) Publication. Service of process by publication may be made pur-
43       suant to the provisions of K.S.A. 60-307, and amendments thereto, which


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  1       are not inconsistent or in conflict with this act.
  2             (e) When the person to be served, or an agent authorized by the per-
  3       son to accept service of process, refuses to accept or receive copies of the
  4       process, the offer of the process server to deliver copies thereof, and the
  5       refusal, shall be a sufficient service of the process.
  6             (f) An acknowledgment of service on the summons is equivalent to
  7       service. The voluntary appearance by a defendant is equivalent to service
  8       as of the date of appearance.
  9             Sec.  4. K.S.A. 61-1807 is hereby amended to read as follows: 61-
10       1807. Proof of service shall be made as follows: (a) Personal and residence
11       service. (1) Every officer to whom summons or other process shall be
12       delivered for service within or without the state, shall make return thereof
13       in writing stating the time, place and manner of service of such writ, and
14       shall sign such officer's name to such return.
15             (2) If such process is directed to and delivered to a person other than
16       by an officer for service, such person shall make affidavit as to the time,
17       place and manner of such person's service thereof.
18             (b) Service by mail. Service by certified mail shall be proven in the
19       manner provided by subsection (e) of K.S.A. 60-308 or subsection (b)
20       (d)(1) of K.S.A. 61-1803, and amendments thereto.
21             (c) Publication service. Service by publication shall be proven by an
22       affidavit showing the dates upon, and the newspaper in which the notice
23       of publication was published. A copy of the notice shall be attached to
24       the affidavit which shall be filed in the cause. When mailing of copies of
25       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. Any return receipt shall be made a part of the affidavit and filed
30       therewith.
31             (d) Time for return. The officer or other person receiving a summons
32       or other process in forcible detainer cases shall make return of service
33       promptly and, in any event, no later than three days before the date stated
34       in the summons for the defendant to either appear or plead to the peti-
35       tion. In all other cases return of service shall be made promptly and in
36       any event no later than five days before the date stated in the summons
37       for the defendant to either appear or plead to the petition. If the process
38       cannot be served as directed it shall be returned to the court forthwith
39       with a statement of the reason for the failure to serve the same.
40             (e) Amendment of return. At any time in the judge's discretion and
41       upon such terms as the judge deems just, the judge may allow any process,
42       return or proof of service thereof to be amended, unless it clearly appears
43       that material prejudice would result to the substantial rights of the party


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  1       against whom the process issued. 
  2       Sec.  5. K.S.A. 61-1803 and 61-1807 are hereby repealed.
  3        Sec.  6. This act shall take effect and be in force from and after its
  4       publication in the statute book.