John Roska: Ignoring summons won't mean jail
Q: I got served with court papers in a small claims case. The summons says that I am "summoned and required to appear." What happens if I don't? Can I go to jail?
A: You can't go to jail for ignoring a summons. You'll probably lose the case, so that the other side gets what they want. No jail, though.
A summons starts a civil court case. (And to be clear, this column is only about civil cases, not criminal.) It comes from the circuit clerk, and gets served on you, along with a complaint or petition that's filed to start a court case.
Only a sheriff, or a licensed private detective, can serve a summons. That's different from a subpoena, which any adult can serve. Subpoenas are aimed at people who are not parties to a court case, and require them to testify as a witness, or provide documents.
Summonses are aimed at parties — the people or organizations being sued. Tagging you with a summons does two things. First, it establishes personal jurisdiction over you, so you're subject to authority of the Illinois court system. Until you're served, the courts have no power over you, and no judge can order you around.
Second, a summons formally notifies you about the court case. That's why it comes with a complaint or petition. Notice of the court case, and an opportunity to participate, are the basics of due process of law. The Constitution says that's required before a state, through its court system, can deprive you of "life, liberty, or property."
A summons may require a written or personal appearance. A "date certain" summons tells you when and where you can appear in person. (If you file a written reply before that first court date, you don't have to make a personal appearance.) A "30 day summons" just gives you 30 days to file a written reply.
If you don't "appear" in response to a summons, either in person or in writing, you're in default. Then, a default judgment can be entered against you, giving the other side all they asked for.
Although a summons says you're required to appear, that really means that you're required to appear if you want to avoid a default judgment. That's the worst that can happen if you do nothing. That risk is stated elsewhere on the summons, but for many is overshadowed by the ominous "required" language at the very beginning.
A summons, then, is really just an invitation to appear. If you decline the invitation, and do nothing, you may lose, but you won't get arrested or go to jail.
If you admit you owe what's claimed, or otherwise don't dispute what the plaintiff or petitioner is asking for, letting a default judgment be entered against you can save you the trouble of showing up in court just to admit defeat. In small claims court, default judgments are par for the course.
There can other advantages to default judgments. If you show up, the complaint against you can be increased, resulting in a bigger judgment. That's harder to do, so less likely to happen, if you're not there.
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.