Request By:
Mr. John T. McGarvey
Attorney at Law
521 West Market Street
Louisville, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to whether or not the clerk's fee for issuance of a garnishment must be paid in advance. The answer is "no." A filing fee of $70 in civil cases is payable in advance, but the $10 fee for issuing orders of attachment is not payable until termination of the suit. KRS 23A.200(2)(e). See KRS 30A.100, requiring the clerk at the termination of an action to assess the costs of each party and file it with the case.
Next, you ask whether or not a garnishee-defendant may be served by mail.
KRS 425.501(3) requires the order of garnishment to be served on the garnishee-defendant. In fact, subsection (1) of the statute provides that the order shall be made returnable as an order of arrest is directed to be returned. However, the civil order of arrest provisions have been repealed. See KRS 425.005 and 425.010 (Acts 1976, Ch. 91, § 45). Therefore the referral to order of arrest is meaningless.
KRS 425.501 provides that the order of garnishment should be directed to the sheriff, requiring him to summon the garnishees named in the affidavit to answer in the manner and at the time required for an answer by the Rules of Civil Procedure, and make due return thereon. However, we do not believe the sheriff's service is the exclusive method of service.
It is our opinion that the legislature cannot constitutionally establish procedural rules on its own, since under § 116 of the Kentucky Constitution the rules of practice and procedure for the Court of Justice is left exclusively to the Supreme Court of Kentucky. Further, no statute can lawfully suggest some procedural practice which would deviate from that prescribed by the Supreme Court. Even though KRS 425.501 apparently calls exclusively for service of an order of garnishment by the sheriff, it is our opinion that under the express provisions of CR 4.01 the clerk may, at the direction of the plaintiff, place a copy of the order of garnishment to be served in an envelope, address the envelope to the garnishee-defendant at the address set forth in the caption or at the address set forth in written instructions by plaintiff, affix adequate postage, and place the sealed envelope in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to deliver to the addressee only and show the address where delivered and the date of delivery, etc., as specifically required by CR 4.01.
The Administrative Office of the Courts informs us that the Supreme Court of Kentucky believes that the precise following of the certified mail procedure, as described in CR 4.01, will suffice as personal service, even sufficient to support an in personam judgment. See CR 4.04.