What happens if summons was not properly served but defendant shows up to court anyways?
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What happens if summons was not properly served but defendant shows up to court anyways?
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I am taking my ex to court for non payment of child support (order to show cause for contempt). (he hasnt made one payment EVER and order has been est. for 1 year.) But he evaded service and even spoke to one of the 3 process servers i hired to serve him at the 3 addresses i had for him. He told him that he would in no way accept the papers. I filed the proofs of non service with the court but i have good word that he will be showing up to court on the court date. What can happen? WIll he be heard or will we have to have him served then and there and continue the case to a later date?
Additional Details
i would also like to add that he is on informal probation for his 2nd DUI...dont know if that matters...
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quizzard123
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If he shows up, that is de facto proof that he was legally served, even if the servers do not show that.
Hence, the case will proceed. |
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Mr Placid
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In Ca, service is considered complete once a person has actual notice of the complaint. Obviously, if you show up at the appointed time and place, then you have actual notice.
But, as an aside, it appears your one process server was an idiot. "He told him he would in no way accept the papers." All the process server had to do at that point was drop the papers at your ex's feet, say "you've been served," walk away, and file the proof of service form with the court. Hopefully, you didn't pay that process server anyting after hearing that story. |
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hmitchel
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If he shows up, then he waives any objection to defective service and the hearing should continue on as if he had been served. |
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Greg P
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In some states, and I believe under federal law, if you have evidence that a defendent is willfully and mallicially evading summons, and you do in this case in the form of the server's affadavit, you can petition the court to deny him his right to be heard. The court would then say that the server telling him, and him refusing to accept the papers, consituted a service and if he doesn't show up, he forfits his right to whatever pitful excuse of a defense he can think of. |
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litlfitz
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you will have the case heard. |
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