MISSISSIPPI LEGISLATURE

2015 Regular Session

To: Judiciary, Division A

By: Senator(s) Wiggins

Senate Bill 2339

AN ACT TO AMEND SECTION 11-9-105, MISSISSIPPI CODE OF 1972, TO CLARIFY THE FORM OF A SUMMONS IN A CIVIL PROCEEDING COMMENCED IN JUSTICE COURT; TO AMEND SECTION 11-9-107, MISSISSIPPI CODE OF 1972, TO REVISE SERVICE OF PROCESS IN JUSTICE COURT; TO AMEND SECTION 11-9-109, MISSISSIPPI CODE OF 1972, TO PROVIDE WHAT CONSTITUTES PRIMA FACIE EVIDENCE OF SERVICE OF PROCESS; TO AMEND SECTION 11-9-113, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR TAXING OF CERTAIN COURT COSTS; TO AMEND SECTION 13-3-5, MISSISSIPPI CODE OF 1972, TO REVISE THE SERVICE OF PROCESS IN JUSTICE COURT; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 11-9-105, Mississippi Code of 1972, is amended as follows:

     11-9-105.  (1)  Anyone desiring to * * *sue commence a civil action in the justice court shall lodge with the clerk of the justice court the evidence of debt, statement of account, or other written statement of the cause of action.  The clerk shall record all filings and shall, as far as practicable, assign the cases to each justice court judge in the county on a rotating basis to insure equal distribution of the cases among the judges of the county; however, in all counties in which the courtrooms provided by the county for use of the justice court judges are located in more than one (1) place in the county, the clerk, in addition to assigning cases to the judges on a rotating basis, may also assign a courtroom for each case, * * * such and the assignment may be * * * made based upon the proximity of the courtroom to the defendant's residence or place of business.  The clerk shall issue a summons for the defendant, returnable to the next term of the court of the justice court judge to which the case is assigned, which shall include a copy of the sworn declaration and shall be executed five (5) days before the return day; but if the process * * * be is executed less than five (5) days before the return day, the service shall be good to require the appearance of the defendant at the term next succeeding the one to which it is returnable.  Any summons issued within five (5) days before a term of the court shall be made returnable to the next succeeding term, unless a shorter day * * *be is named, in pursuance of the provision for a trial without delay in the case of nonresident or transient defendants.  When the case has been recorded and assigned and process issued, the clerk shall, within two (2) working days, forward certified copies of all documents pertaining to the case to the justice court judge to * * * which whom the case is assigned for further processing.

(2)  The summons shall: 

(a)  Name the court and the parties;

(b)  Be directed to the defendant;

(c)  State the name and address of the plaintiff's attorney or, if unrepresented, of the plaintiff;

(d)  State the date and time within which the defendant must appear and defend;

(e)  Notify the defendant that a failure to appear and defend may result in a default judgment against the defendant for the relief demanded in the sworn declaration;

(f)  Be signed by the clerk; and

(g)  Bear the court's seal.

(3)  Process may be served by any constable in the county without regard to the district, sub-district, ward or beat from which a constable is elected.

     SECTION 2.  Section 11-9-107, Mississippi Code of 1972, is amended as follows:

     11-9-107.  When any process has not been returned by a constable within ten (10) working days after issuance by the clerk of the justice court, upon written request by the plaintiff or the plaintiff's attorney, the clerk shall * * *direct issue an alias summons and deliver it with a copy of the sworn declaration to either the sheriff of * * *his the county * * *and his deputies to execute any such process of the justice court; and for service of process by the sheriff * * *and his deputies shall execute any process so directed to him by any clerk of the justice court or a deputy, or to the plaintiff or the plaintiff's attorney for service by any other person who is not a party and who is at least eighteen (18) years old, as directed by the plaintiff or plaintiff's attorney.

     SECTION 3.  Section 11-9-109, Mississippi Code of 1972, is amended as follows:

     11-9-109. * * *In cases of emergency, and where a constable or sheriff or deputy sheriff cannot be had in time, the clerk of the justice court may appoint some reputable person to execute any process, the clerk to be liable on his bond for all damage which may result to a party to the cause or other person from his appointment of an insolvent or incompetent person. The return of the person who serves a summons is prima facie proof of service, or the defendant may acknowledge service in writing on the summons.  When service by mail, posting, or both mail and posting, is required, the person who serves the summons shall also file with the clerk a sworn affidavit that a copy of the summons and sworn declaration have been served in accordance with Section 13-3-5.

     SECTION 4.  Section 11-9-113, Mississippi Code of 1972, is amended as follows:

     11-9-113.  (1)  The process * * *so delivered to the sheriff or constable shall be returned by * * *him the person serving it to the clerk of the justice court, according to its command.

(2)  (a)  When a copy of the summons and sworn declaration are served, an amount not exceeding what is statutorily allowed by law for service by the constable may be taxed as recoverable costs in the action.

(b)  When a copy of the summons and sworn declaration are served by certified mail, the amount of postage for the certified mail may be taxed as recoverable costs in the action.

(3)  A constable will not be paid a fee for serving process if the time prescribed by Section 11-9-107 has passed and the process has been directed to another person who has served the process.

     SECTION 5.  Section 13-3-5, Mississippi Code of 1972, is amended as follows:

     13-3-5.  (1)  The process to bring in defendants in all civil actions in all courts except justice court shall be a summons, the form, issuance, service, waiver, return, amendment and time limits of which shall be governed by the Mississippi Rules of Civil Procedure.

     (2)  The process to bring in defendants in all civil actions in justice court shall be a summons conforming to the provisions of Title 11, Chapter 9, Mississippi Code of 1972, which shall be served in one (1) of the following modes unless the defendant waives service of process in a manner consistent with that set forth in the Mississippi Rules of Civil Procedure:

(a) First.  Upon the defendant personally, if * * *to be found in the county, by handing * * *him the defendant a true copy of the process.

Second.  If the defendant cannot * * *himself be found in the county, then by leaving a true copy of the process at * * *his the defendant's usual place of abode * * *, with * * *his wife the defendant's spouse or some other person of * * *his the defendant's family * * *above of the age of sixteen (16) years * * *, and or older who is willing to receive * * *such the copy.

Third.  If the defendant cannot * * *himself be found, and if no person of * * *his the defendant's family * * *aged of the age of sixteen (16) years or older can be found at * * *his the defendant's usual place of abode who is willing to receive * * *such the copy, then by posting a true copy of the process on a door of the defendant's usual place of abode * * *; provided, however, that if this mode is used when the defendant's usual place of abode is a multifamily dwelling, a copy of the summons shall be mailed to the defendant by the clerk of the court upon return of service and at the courthouse.

(b)  If the second or third mode is used, a copy of the summons and the sworn declaration shall be mailed to the defendant by the person who served the process using first-class mail, postage prepaid, or by certified mail, return receipt requested.

(c)  Service of process is deemed complete:

(i)  In the case of actual service, upon the date indicated in the return;

(ii)  In the case of first-class mail, upon the tenth day after mailing;

(iii)  In the case of certified mail, upon the date of delivery as evidenced by the return receipt or by the returned envelope marked "refused"; or

(iv)  In the case of waiver of service of process, when service of process is waived.

     SECTION 6.  This act shall take effect and be in force from and after July 1, 2015.

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