Tuesday, March 9, 2010

More on Got to Have Service on the Other Side

I have to make a comment about a recent case of mine and Indiana Trial Rule 4(E). Adding this to Got to Have Service on the Other Side seemed to make the earlier post a bit too long.

This part of Rule 4 reads as follows:

(E) Summons and Complaint Served Together--Exceptions. The summons and complaint shall be served together unless otherwise ordered by the court. When service of summons is made by publication, the complaint shall not be published. When jurisdiction over a party is dependent upon service of process by publication or by his appearance, summons and complaint shall be deemed to have been served at the end of the day of last required publication in the case of service by publication, and at the time of appearance in jurisdiction acquired by appearance. Whenever the summons and complaint are not served or published together, the summons shall contain the full, unabbreviated title of the case.
Back in January, I had an opposing attorney try to dismiss a paternity complaint on the grounds that their client had never gotten a summons. Opposing counsel would have been on much better ground but for a couple of things:
  1. There had not been an emergency hearing about 10 days before;
  2. That prior to the emergency hearing, his client had been handed a copy of the paternity petition; and
  3. Our local rules on emergency hearings follow the rules for temporary restraining orders, and those rules had been complied
Opposing counsel lost his motion to dismiss. It would have been better that a summons had been issued after the emergency hearing just as it might have been a shorter argument if I had remember Trial Rule 4(A) and (E). After all, the opposing party had appeared and the court had acquired jurisdiction by virtue of her appearance.

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