What if a civil summons for me was served to my 11 year old son and...

[jbbrooks]

What is the name of your state (only U.S. law)? Alabama
A civil summons for me was served to my 11 year old son while I was not home. I found it in his room one day while making him clean up and asked him about it and was told it was only served a few days before. I filed an answer the same week but received a letter from the opposing attorney today where he requested a default judgement since my answer was not filed within the 30 days allowed. It seems it had already been over 3 weeks when I found it and my answer was filed on the 32nd day according to the timeline stated in the letter from the attorney I received. The clerk stated there was no decision on the case when I filed my answer but since I missed the 30 day deadline I was afraid they would still get the default judgement in spite of my filed answer. My question is whether or not there is any requirements that have to be met when serving a summons by the sheriff's dept that would give me grounds to file a motion for consideration to keep from a default judgement being granted?

 

[latigo]

What is the name of your state (only U.S. law)? Alabama
A civil summons for me was served to my 11 year old son while I was not home. I found it in his room one day while making him clean up and asked him about it and was told it was only served a few days before. I filed an answer the same week but received a letter from the opposing attorney today where he requested a default judgement since my answer was not filed within the 30 days allowed. It seems it had already been over 3 weeks when I found it and my answer was filed on the 32nd day according to the timeline stated in the letter from the attorney I received. The clerk stated there was no decision on the case when I filed my answer but since I missed the 30 day deadline I was afraid they would still get the default judgement in spite of my filed answer. My question is whether or not there is any requirements that have to be met when serving a summons by the sheriff's dept that would give me grounds to file a motion for consideration to keep from a default judgement being granted?

First, to you have a recognizable, legitimate defense to the cause of action or causes of action stated in the plaintiff's complaint?

Next:

Alabama Rules of Civil Procedure Rule 4 (c) "Upon Whom Process Served. Service of process, except service by publication as provided in Rule 4.3, shall be made as follows:

(1)Individual. Upon an individual, other than a minor or an incompetent person, by serving the individual or by leaving a copy of the summons and the complaint at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process;" (Emphasis supplied)

 

[Ohiogal]

HOpefully she brought up the improper service issue in her answer or it might be deemed waived.

 

[jbbrooks]

Yes we have a good defense to the civil complaint. I was not aware of the tardiness of the answer to the complaint until we filed it yesterday and received the opposing attorney letter today so there was no mention of it in the answer. The circuit clerk was contacted regarding the situation regarding the deliverance of the summons to my 11 yo son and asked what could we file in that respect and he told me to ask an attorney how to handle it so that's why I am asking now. Would it be wise to file a motion for consideration in regards to the situation tomorrow with the circuit clerk or since the clerk stated there was not a default judgement entered as of yet, should I feel safe with the answer filed yesterday being enough to keep it from happening (default judgement being granted). BTW I do appreciate the help.

 

[jbbrooks]

Also it seems 11 is quite young to be considered "suitable age" as Al. state laws says that a summons served on a minor should be served on the parents and to the minor only if the minor is over the age of 12, so it seems a summons to me should also at least require them to be 12 or older.

 

[latigo]

Also it seems 11 is quite young to be considered "suitable age" as Al. state laws says that a summons served on a minor should be served on the parents and to the minor only if the minor is over the age of 12, so it seems a summons to me should also at least require them to be 12 or older.

Could be jb.

Anyhow I'm pretty certain that the proper procedure to challenge the service would be to file a motion to quash the return.

Whether or not that opportunity was waived by filing an Answer (as Ohiogal suggests) I couldn't offer an opinion without doing some research and I'm presently researched out.

I think you need to hire an attorney anyhow. After all they have to eat too.

___________________

(Which reminds me that my doctor said that I need to eat less. But she didn't say less than what nor when I have to start. And how come most doctors are fit and skinny and always sit in the rabbit section of the hospital cafeterias? Disgusting.)

 

[startedone]

What is the name of your state (only U.S. law)? Alabama
I filed an answer the same week but received a letter from the opposing attorney today where he requested a default judgement since my answer was not filed within the 30 days allowed. ?

The request for default should be automatically denied by the clerk if you filed your answer before a default was entered. Call the clerk and ask or read your state's practice rules.

 

[startedone]

What is the name of your state (only U.S. law)?
A civil summons for me was served to my 11 year old son while I was not home.... I filed an answer the same week ....there is any requirements that have to be met when serving a summons by the sheriff's dept that would give me grounds to file a motion for consideration to keep from a default judgement being granted?

yes there is but you may have waived the argument when you filed a response of an answer instead of a motion to dismiss. You should be able to amend your answer if needed.