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The Professor Nedley Series

"Lack of Service"

What if Service is Short of Time

or

Not at All

April 1, 2007

        What can or must the court do when the litigant has no proof of service (it's in the car and they came with their new boyfriend) (POS) or it's all filled out and it's just a few days short or everyone shows up and want to proceed or doesn't want to proceed.  Remember that the Court IS a public service so let's make this thing work the best way we can, remembering that the Appellate Court is probably going to review it just for fun or there are going to be new judges looking at it every six months from now until the kids turn 18.

If it's a Sheriff's service, first have your Deputy check the system.  That will answer a lot of questions. 

If both parties are there and the POS form is missing proceed on your best instincts, subject to the POS being supplied.  If there is no objection - no problem, but make a record of agreement to proceed.  If there is objection, the filing of the POS becomes a condition precedent to the order becoming an actual order. NOTE: Some judges will hold that if both parties are there you have actual jurisdiction.  Over objection PN disagrees, the motion never got off the ground and the litigant is permitted to be there to ombject and not get roped into a bootstrap jurisdiction.

If both are there and there is agreement to proceed even though the time is short, it kind of depends on the seriousness of the issues and the evidence available.  If the issue is support and there's a wadded up paystub, that may b e all you're ever going to get anyway - give it a go or give a short continuance and have your clerk or deputy supply them with the I&E forms to be filled out.  Don't do a reissuance at this point, because all you are going to do is confuse people on arcane procedural issues.  Just do your best to get the case started and on the right track.

If only one is there and POS falls short of time  DO NOT PROCEED.  There is no jurisdiction and no consent.  Just do a simple reissuance,  DO NOT CONTINUE THE MATTER no matter how much the party protest as to the problems in effecting service.  This is the rule even if it's only one day short of time.  There is no jurisdiction to continue the matter.

If you have timely service, make sure it was served by someone competent and signed. Then grab the POS and put it in the file forever and make your orders.