John Roska: Personal or abode service required for court papers

Q: Is it legal to serve someone with court papers by leaving them in the door? Don't they have to physically hand the papers to you?

A: Leaving them in the door is OK, but only if you're nearby. That counts as "leaving a copy of the summons with the defendant personally," which is what the law requires.

Just leaving a summons in the door when no one's home, though, is not good service.

Civil cases start when a plaintiff files their complaint. But the case goes nowhere unless that complaint gets served, along with a summons, on the defendant. Serving the papers notifies the opposite party about the court case and gives them the chance to participate.

Notice, and an opportunity to be heard, are the basics of due process of law.

Technically, serving the summons gives a court "personal jurisdiction" over the defendant. Jurisdiction over the person means the judicial system has the authority, backed up by the state's police power, to enforce court orders against someone.

A summons is an invitation to come to court. It's not an order to appear. If you decline the invitation, you lose, and the other side gets what they want. But you won't go to jail for disobeying a court order.

The two main ways to serve a summons are: personally, or at the person's "abode." (In small claims cases, certified mail can be OK.)

Personal service means the summons is delivered to the person. Abode service means it's delivered to their "usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upward." Either is good service and gives a court personal jurisdiction over a defendant.

Illinois cases make it pretty clear that personal service does not require the person getting served to physically accept the summons. As one court said, "no requirement exists that the process server physically place the papers in defendant's hand."

In that case, the papers were attached to the door after the defendant had retreated inside.

In another case, it was OK to slide them under the door, after the sheriff had spoken through that door to the uncooperative defendant.

So, if the sheriff or private process server sees you, or speaks with you, but you're dodging service, dropping or leaving the summons in your "general vicinity" is probably good enough.

Ignoring a summons in that situation risks that you'll be defaulted and have a judgment entered against you.

Judgments entered without personal jurisdiction over someone are void, so you could try attacking that judgment by challenging the service of summons even years later. That's done by filing a motion to "quash" the service of summons and by proving you weren't properly served.

That requires "clear and satisfactory proof," which is significantly more proof than usually required in civil cases. And, and as a case says, "courts do not favor those who seek to evade service of summons." If you were nearby when the summons was left for you, and you actually, eventually got them, don't expect much success.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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