Summons

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A summons (also known in England and Wales as a claim form and in the Australian state of New South Wales as a court attendance notice (CAN)) is a legal document issued by a court (a judicial summons) or by an administrative agency of government (an administrative summons) for various purposes.

Contents

Judicial summons

Summons for Martin Luther to appear at the 1521 Diet of Worms, signed by Charles V. The text on the left was on the reverse side. Summons for Luther to appear at the Diet of Worms.jpg
Summons for Martin Luther to appear at the 1521 Diet of Worms, signed by Charles V. The text on the left was on the reverse side.

A judicial summons is served on a person involved in a legal proceeding. Legal action may be in progress against the person, or the person's presence as witness may be required. [1] In the former case, the summons will typically announce to the person to whom it is directed that a legal proceeding has been started against that person, and that a case has been initiated in the issuing court. In some jurisdictions, it may be drafted in legal English difficult for the layman to understand, while several U.S. states expressly require summonses to be drafted in plain English and that they must start with this phrase: "Notice! You have been sued."[ citation needed ]

The summons announces a date by which the person or persons summoned must either appear in court, or respond in writing to the court or the opposing party or parties. The summons is the descendant of the writ of the common law. It replaces the former procedure in common-law countries by which the plaintiff actually had to ask the sheriff to arrest the defendant in order for the court to obtain personal jurisdiction in both criminal and civil actions.

Types of summonses

Citation/claim (legal term)

A citation, traffic violation ticket, or notice to appear is a type of summons prepared and served at the scene of the occurrence by a law enforcement official, compelling the appearance of a defendant before the local magistrate within a certain period of time to answer for a minor traffic infraction, misdemeanor, or other summary offence. Failure to appear within the allotted period of time is a separate crime of failure to appear.

In Australia, minor traffic and some summary offences are known as an infringement notice or a fine and can be dealt with by paying a particular monetary amount depending on the offence. The accused person has the right to have the matter heard in a court; if found not guilty the accused person pays nothing other than his legal costs (if any); if found guilty the accused person faces the prospect of a conviction for the offence and/or a substantial increase in the fine up to the maximum. For example, proceeding through a red light could go from A$353 up to A$2,200 if convicted in NSW. For more serious offences, a field court attendance notice is issued.

In the United Kingdom and Hong Kong, law enforcement officials may deal with certain minor offences, such as littering, by issuing a fixed penalty notice, colloquially called an "on-the-spot fine", although legally they are not fines. They allow the recipient to avoid going to court by paying a penalty fixed by statute. If such a notice is ignored or disputed, a court summons will be issued as for any other offence.

Civil summons

A civil summons is most often accompanied by a complaint. Depending on the type of summons, there is often an option to endorse a summons so that the entity being served may be identified. In the court system in California, for civil unlimited cases in the superior court, a summons will often have these options to endorse:

  1. as an individual;
  2. as the person sued under the fictitious name of __________________;
  3. on behalf of (usually for a company); or
  4. by personal delivery on __________

Administrative summons

One example of an administrative summons is found in the tax law of the United States. The Internal Revenue Code authorizes the U.S. Internal Revenue Service (IRS) to issue a summons for a taxpayer—or any person having custody of books of account relating to a business of a taxpayer—to appear before the U.S. Secretary of the Treasury or his delegate (generally, this means the IRS employee who issued the summons) at the time and place named in the summons. [2] The person summoned may be required to produce books, papers, records, or other data, and to give testimony under oath before an IRS employee. [3]

The IRS is also empowered to issue the section 7602 summons for the purpose of "inquiring into any offense connected with the administration or enforcement of the internal revenue laws". [4]

The summons may be enforced by a court order, [5] and the law provides a criminal penalty of up to one year in prison or a fine, or both, for failure to obey the summons, [6] except that the person summoned may, to the extent applicable, assert a privilege against self incrimination or other evidentiary privileges, if applicable.

In the U.S. immigration court system, a "Notice to Appear" is an administrative summons ordering a respondent to appear before an immigration court for removal proceedings.

Summonses by jurisdictions

Australia

In the Australian state of New South Wales (NSW) the service of a court attendance notice can be issued in a number of ways, the most common of which is by the NSW Police Force when charging someone after an arrest is made, a bail court attendance notice (with bail conditions) or regular court attendance notice is issued. Other methods the police use include via a paper form called a field court attendance notice (field CAN) which is issued to the accused person on the spot after an offence has been detected. Or by way of a future court attendance notice (future CAN), which replaced the old court issued summons and is served in person by police or sometimes by mail. In all of these cases, the CAN is filed at the court after it has been served. [7]

England and Wales

Historically, in early English law, a summons was called an auxilium curiae, although this term is now obsolete.[ citation needed ] [8]

In England and Wales, the various royal writs traditionally used to commence the forms of action were abolished by the Uniformity of Process Act 1832 (2 & 3 Will. 4. c. 39). [9] They were consolidated into a writ of summons, which like its predecessors, was traditionally issued in the name of the monarch. [10]

From 1832 to 1980, a writ of summons in England and Wales began with the name of the court, case number, the word "Between", and the names of the parties to the case. This was followed by the name and full title of the current monarch, the word "To:", the defendant's name and their city of residence, and then the royal command, starting with the royal we: "WE COMMAND YOU that within 14 days after service of this Writ on you, inclusive of the date of service, you do cause an appearance to be entered for you in an action at the suit of [plaintiff's name] and take notice that in default of you so doing the Plaintiff may proceed therein, and judgment may be given in your absence". Next came the word "Witness," then the name and title of the Lord Chancellor, and the date on which the writ was issued. [11]

The traditional writ language was changed in 1980 at the insistence of Lord Chancellor Hailsham, who felt that a command from the monarch was too intimidating for ordinary laypeople. [9]

Therefore, as of 1992, a writ of summons simply gave notice, in lieu of the traditional royal command: "This Writ of Summons has been issued against you by the above-named Plaintiff in respect of the claim set out on the back. Within 14 days after the service of this Writ upon you, counting the day of service, you must either satisfy the claim or return to the Court Office mentioned below the accompanying Acknowledgement of Service stating therein whether you intend to contest these proceedings." This was followed by a paragraph warning of the risk of entry of default judgment. The writ was no longer witnessed by the Lord Chancellor and in lieu of that simply stated which court office had issued the writ. [12]

In 1999, the writ of summons was replaced with the claim form by the Civil Procedure Rules 1999 (CPR). This was part of the CPR's reforms to simplify legal terminology; at the same time, the plaintiff was renamed the claimant. Despite its name, the claim form may but is not required to present the details of the claim itself. The statement of claim (which had already replaced the complaint in England and Wales under the Rules of the Supreme Court) was replaced by another document known as particulars of claim. The claim form (Form N1) has space for "brief details of claim" on the first page, and then on the third page, the claimant can either provide particulars of claim or indicate by tick box that they are "to follow" (that is, as a separate document). [13]

Unlike the traditional writ of summons, the notice to the defendant about when to respond is no longer provided on the claim form itself. The CPR is oddly silent about this, but the claimant is generally expected to concurrently serve Form N1C, Notes to defendant on replying to the claim form, which does warn that the defendant must respond within 14 days of service of particulars of claim.

In criminal matters, either a requisition, summons or warrant is issued to initiate criminal proceedings.

Republic of Korea

In the Republic of Korea, a criminal summons may come from the Korean Prosecution Services or a Court of Law and is a manner to initiate criminal proceedings or call a witness in for questioning. A summons may be served on an individual within Korea or that is abroad. [14]

United States

In most U.S. jurisdictions, the service of a summons is in most cases required for the court to have jurisdiction over the party who is being summoned. [15] The process by which a summons is served is called service of process. The form and content of service in the federal courts is governed by Rule 4 of the Federal Rules of Civil Procedure, and the rules of many state courts are similar. The federal summons is usually issued by the clerk of the court. In many states, the summons may be issued by an attorney, but some states use filing as the means to commence an action and in those states, the attorney must first file the summons in duplicate before it becomes effective. One or more copies are stamped by the court clerk with the court seal and returned to the attorney, who then uses it to actually serve the defendants. Other jurisdictions may only require that the summons be filed after it is served on the defendants. New York is distinguished by its permissive filing system, in which the summons or complaint need not be filed at all.

See also

Related Research Articles

Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. A similar attitude toward a legislative body is termed contempt of Parliament or contempt of Congress. The verb for "to commit contempt" is contemn and a person guilty of this is a contemnor or contemner.

In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought that entitles the plaintiff(s) to a remedy. For example, the Federal Rules of Civil Procedure (FRCP) that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.

<span class="mw-page-title-main">Defendant</span> Accused person

In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.

A plaintiff is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order. "Plaintiff" is the term used in civil cases in most English-speaking jurisdictions, the notable exceptions being England and Wales, where a plaintiff has, since the introduction of the Civil Procedure Rules in 1999, been known as a "claimant" and Scotland, where the party has always been known as the "pursuer". In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the "complainant".

A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. In most jurisdictions, such periods exist for both criminal law and civil law such as contract law and property law, though often under different names and with varying details.

Civil procedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits. These rules govern how a lawsuit or case may be commenced; what kind of service of process is required; the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases; the timing and manner of depositions and discovery or disclosure; the conduct of trials; the process for judgment; the process for post-trial procedures; various available remedies; and how the courts and clerks must function.

A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the plaintiff, and the Court may impose the legal and/or equitable remedies available against the defendant (respondent). A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

An arrest warrant or bench warrant is a warrant issued by a judge or magistrate on behalf of the state which authorizes the arrest and detention of an individual or the search and seizure of an individual's property.

<span class="mw-page-title-main">Writ</span> Formal written order issued by an entity

In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, and certiorari are common types of writs, but many forms exist and have existed.

A subpoena or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoenas:

  1. subpoena ad testificandum orders a person to testify before the ordering authority or face punishment. The subpoena can also request the testimony to be given by phone or in person.
  2. subpoena duces tecum orders a person or organization to bring physical evidence before the ordering authority or face punishment. This is often used for requests to mail copies of documents to requesting party or directly to court.

In the U.S. legal system, service of process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party, court, or administrative body in an effort to exercise jurisdiction over that person so as to force that person to respond to the proceeding before the court, body, or other tribunal.

Garnishment is a legal process for collecting a monetary judgment on behalf of a plaintiff from a defendant. Garnishment allows the plaintiff to take the money or property of the debtor from the person or institution that holds that property. A similar legal mechanism called execution allows the seizure of money or property held directly by the debtor.

In the common law legal systems, capias ad respondendum is or was a writ issued by a court to the sheriff of a particular county to bring the defendant, having failed to appear, to answer a civil action against him.

Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. The failure to take action is the default. The default judgment is the relief requested in the party's original petition.

A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle Ages, especially in England. The use of the subpoena writ was gradually adopted over time by civil and criminal courts in England and the European continent.

Tax protesters in the United States advance a number of conspiracy arguments asserting that Congress, the courts and various agencies within the federal government—primarily the Internal Revenue Service (IRS)—are involved in a deception deliberately designed to procure from individuals or entities their wealth or profits in contravention of law. Conspiracy arguments are distinct from, though related to, constitutional, statutory, and administrative arguments. Proponents of such arguments contend that all three branches of the United States government are working covertly to defraud the taxpayers of the United States through the illegal imposition, assessment and collection of a federal income tax.

A private prosecution is a criminal proceeding initiated by an individual private citizen or private organisation instead of by a public prosecutor who represents the state. Private prosecutions are allowed in many jurisdictions under common law, but have become less frequent in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals who retain barristers.

The Wisconsin circuit courts are the general trial courts in the state of Wisconsin. There are currently 69 circuits in the state, divided into 9 judicial administrative districts. Circuit court judges hear and decide both civil and criminal cases. Each of the 249 circuit court judges are elected and serve six-year terms.

In law, an appearance occurs when a party to a lawsuit physically appears in court, or to a formal act through which a defendant submits to the jurisdiction of the court in which the lawsuit is pending.

Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.

References

  1. ↑ Application for a witness summons under criminal law of England and Wales
  2. ↑ The summons is generally executed on IRS Form 2039, Summons.
  3. ↑ 26 U.S.C.   § 7602(a) .
  4. ↑ 26 U.S.C.   § 7602(b) .
  5. ↑ 26 U.S.C.   § 7604. For background, see Schulz v. Internal Revenue Service, 395 F.3d 463, 2005-1 U.S. Tax Cas. (CCH) ¶ 50,165 (2d Cir. 2005) (per curiam).
  6. ↑ 26 U.S.C.   § 7210.
  7. ↑ Weatherburn, Don; Fitzgerald, Jacqueline (2015). The impact of the NSW Bail Act (2013) on trends in bail and remand in New South Wales. NSW Bureau of Crime Statistics and Research. p. 2. ISBN   978-1-921824-99-9.
  8. ↑ "What is Auxilium Curiae? Definition of Auxilium Curiae (Black's Law Dictionary)". thelawdictionary.org. 4 November 2011. Retrieved 2017-03-14.
  9. 1 2 Baker, John (2019). An Introduction to English Legal History (5th ed.). Oxford: Oxford University Press. p. 75. ISBN   9780198812609 . Retrieved August 26, 2023.
  10. ↑ Chitty, Joseph (1836). The Practice of the Law in All Its Departments, Volume 3. Philadelphia: P.H. Nicklin & T. Johnson, Law Booksellers. p. 157. Retrieved November 26, 2023. This treatise offers example text for a writ of summons on page 154.
  11. ↑ Barnard, David (1977). The Civil Court in Action. London: Butterworths. p. 11. ISBN   0406556202.
  12. ↑ Barnard, David; Houghton, Mark (1993). The New Civil Court in Action. London: Butterworths. p. 15. ISBN   0406002681.
  13. ↑ "Make a claim against a person or organisation - Claim form (CPR Part 7): Form N1". gov.uk . HM Courts & Tribunals Service. 22 September 2023.
  14. ↑ Hayes, Sean (2023-06-01). "What Should I do if I Receive a Korean Summons for a Criminal Investigation in Korea?". The Korean Law Blog by IPG Legal. Retrieved 2023-10-16.
  15. ↑ See, e.g., World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286 (1980).

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