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tony wilkerson · Jan 28, 2010, 12:57 AM

A defendant visits the office of a plaintiff's lawyer and "served" a copy of the petition. The defendant signs an "acknowledgment of service" that reads, "Due and legal service of process is hereby acknowledged." Process had yet to issue and was, therefore, not, in fact, attached. Defendant doesn't know that to avert default judgment he must answer the petition. He doesn't answer and does lose by default. He later claims insufficiency of process on the grounds that no "process" was served with the petition.

AK lawyer · Jan 28, 2010, 01:09 AM

There is no question.

If there were, it smells suspiciosly like some sort of a test question. We don't do homework.

tony wilkerson · Jan 28, 2010, 01:19 AM

Sorry, but the question is, "how valid is the defendant's claim?" This is not homework but an actual case in an old Georgia (DeKalb Co.) Superior Court divorce case. In fact, to authenticate, read Wilkerson v. Wilkerson, a 1988 case.

this8384 · Jan 28, 2010, 08:48 AM

Originally Posted by tony wilkerson

Sorry, but the question is, "how valid is the defendant's claim?" This is not homework but an actual case in an old Georgia (DeKalb Co.) Superior Court divorce case. In fact, to authenticate, read Wilkerson v. Wilkerson, a 1988 case.

And your reason for the question is.. What does a 22-year-old case have to do with this?

twinkiedooter · Jan 28, 2010, 04:06 PM

The attaorney is an officer of the court and thus able to serve papers on a Defendant.

What was your question? Was it due to the defendant's not being served a Summons and Complaint? The Complaint or petition would have been sufficient in that the defendant needed to read the complaint and answer it within the 20 days prescribed by law. The failure of the defendant for doing so is not a valid point. His ignorance of the law is not an excuse in the eyes of the law.

ScottGem · Jan 28, 2010, 04:14 PM

If you are asking about a 22 yr old case how is this not homework?

tony wilkerson · Jan 28, 2010, 07:32 PM

The question is relevant because the defendant is moving to have the judgment set aside on the grounds of insufficient service, I. e. that no summons was attached. In Ga. there is no statute of limitations on motions of this kind. The reason it matters now, 22 years later, is that the defendant finds it unfair that the State is now strengthening its enforcement of a judgment the defendant finds to be unconstitutional.

ScottGem · Jan 28, 2010, 08:19 PM

So you are saying that the defendant in this case moving to have the default judgment vacated on the grounds of improper service.

Hasn't the judgment expired at this point? Usually a judgment lasts 10 years and is renewable for another 10. If the judgment has expired, then vacating is moot. So why bother?

What could have precipitated doing this? Did the defendant come into money that the plaintiff can use to collect the judgment.

Frankly, I think the defendant hasn't a chance to get this vacated at this point.

JudyKayTee · Jan 29, 2010, 10:39 AM

Wonder after OP is admitted to the bar, when he's on trial, if he's going to sign onto AMHD when he has a question.

tony wilkerson · Jan 29, 2010, 06:53 PM

I purposely omitted some info, but this wasn't meant to be a trick question. (I just wanted pure perspective.) The fact is, the judgement is a child custody and support judgment. The state alleges that the defendant still hasn't satisfied the support specification of the judgment and is seeking to punish him (defendant) for his alleged contempt of the judgment. I don't think that changes anything about the situation as I've presented it, but I know that child support can be a very prejudicial factor. All of your comments are much appreciated.

JudyKayTee · Jan 29, 2010, 07:00 PM

So there has been a Judgment for 22 years, unenforced, now the State is "cracking down" on people who don't pay child support and the Defendant is attempting to set the Judgment aside?

I still don't understand why you want anyone's "perspective" on this. It would appear to be what it is - no more and no less.

In order to get more background, please post the case citation.

ScottGem · Jan 29, 2010, 07:19 PM

Originally Posted by tony wilkerson

I purposely omitted some info, but this wasn't meant to be a trick question. (I just wanted pure perspective.) The fact is, the judgement is a child custody and support judgment. The state alleges that the defendant still hasn't satisfied the support specification of the judgment and is seeking to punish him (defendant) for his alleged contempt of the judgment. I don't think that changes anything about the situation as I've presented it, but I know that child support can be a very prejudicial factor. All of your comments are much appreciated.

You're kidding right? You don't think think the fact that this is a support case in Family Court rather than a debt case in civil court makes a difference? It's a very different set of laws. It also changes matters that the state is the one pursuing you, not a plaintiff.

What contempt is the state alleging? Have payments never been made or is it just the amount in dispute.

Frankly, you have wasted our time by leaving out very key information. I've also moved this to the Famly law forum where you should have posted in the first place.

tony wilkerson · Feb 1, 2010, 09:48 PM

Thanks for everyone's "perspective," but this is NOT a family law case. It's a constitutional matter, I. e. Fourteenth Amendment (due process). I sought the perspective I requested because I suspected that so many people would mis a fundamental point here: The government cannot take your life or "stuff" without granting you a hearing (or notice to be heard). Doesn't matter when it was or how much it was or what it was for.

ScottGem · Feb 2, 2010, 04:34 AM

Sorry, but you are wrong. You may be defending your rights on the grounds of due process. But the court that the case is heard in has a primary bearing.

It is one thing to have a default judgment sprung on you a number of years later because of sewer service. It is a very different thing when you are aware that the case exists and have had ample time to seek redress.

An accurate legal answer would be different in those two scenarios.

And know you have gotten what I think is the likely reaction of the courts. Feel free to pursue this, but I don't think you have a prayer.

tony wilkerson · Feb 4, 2010, 06:26 PM

I understand your point, but I believe you're missing the point that ample case law provides that "mere knowledge of [the] suit" is insufficient for the state to gain jurisdiction. If the only way a defendant can obtain a hearing is to answer the complaint, the state is obligated to extend that notice to the defendant, and every creditable reference states that the method of "notice" is the summons. Without the summons, there has been no notice, and time doesn't cure that negligence, thus the absence of a statute of limitations on objections of this nature. Without personal jurisdiction, the state has no authority to act. Or, are you disputing this point? Thanks.

ScottGem · Feb 4, 2010, 06:33 PM

I'm not disputing that point. What I'm disputing is that you have a real chance of winning on those grounds. You signed a paper that acknowledged service. You then claim that no summons was given you. They are going to claim you signed a paper acknowledging it. Your signature is going to be accepted more than your word. When that is coupled with your awareness of the suit and failure to take action over 20 years, I don't think you have a prayer of overturning judgment. And that's why knowing what court was involved has a prime affect on our answers.

tony wilkerson · Feb 4, 2010, 06:47 PM

I'll concede your ultimate point (about knowing what court was involved), perhaps. However, prevailing case law still holds that even THAT knowledge is insufficient notice for gaining jurisdiction. If a sheriff's deputy executed the service and the defendant signed the return of service (which is what an acknowledgment of service constitutes) but the sheriff omitted the summons--remember, complaint and summons must be served together, according to law--would/should the defendant be responsible for knowing that the summons was omitted? Isn't it the obligation of the state to extend notice? What would be the point in insisting that summons is notice and that the complaint and that summons be served together?

JudyKayTee · Feb 4, 2010, 06:50 PM

I think the Court is going to weigh whether you signed a false document when you admitted service OR if you are signing a false document now when you are claiming you were not served.

Fr_Chuck · Feb 4, 2010, 07:01 PM

First the rules of service varies on the type of case, a divorce or child support case has different rules of service in many states than do a credit card debt.

If a persons attorney, who is or was the attorney or record on a case is served the notice that is proper service in any court I have ever worked in. In most cases merely taping it to the door of the last address on record is all that is needed.

And the court is the one that has the final say on if service is acceptable or not.

tony wilkerson · Feb 4, 2010, 07:53 PM

I've seen that practice done... on TV, and I suppose you're right. However, the Georgia Civil Practice Act requires, again, that complaint and summons be served together. I've worked as a paralegal, and as counsel for various creditors, we had to effect service "of process" on defendants. In order to do that, we had to have summons be issued by the clerk's office so that we could have it served ALONG WITH the complaint, true. But in a child custody/support case, where the court has to determine the merits of either case (defendant's vs. plaintiff's), there has to be a trial. Before the judge can rule against the defendant, the defendant has to be served notice to be heard. Without that notice/summons, there has been no procedural due process. I can see that you and I will ultimately disagree on this (and you may be right), but I think the defendant has a legitimate case (by the letter of the law), and it should be argued.