Request By:
Mr. Gary Lawson
Clark County SheriffP.O. Box 352
Courthouse
Winchester, Kentucky 40391
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter raises questions concerning the proper fee for sheriffs of Kentucky in the serving of an eviction notice and a civil summons. Specifically, you have difficulty in distinguishing between a process and a notice.
First, you refer specifically to Form, AOC-79-215, entitled "Eviction Notice: Notice of Eviction Hearing."
KRS 383.210(1) reads:
"(1) Upon complaint by a person aggrieved by a forcible entry or detainer to the district court of the county in which the land or tenement, or a principal part thereof, lies, a warrant shall issue to the sheriff or any constable, in substance as follows: 'The commonwealth of Kentucky to the sheriff (or any constable) of . . . county: Whereas, AB hath made complaint that CD and EF did, on the . . . day of . . . ., forcibly enter into (or forcibly detain from the said AB) one (1) house and field on the waters of . . . ., in the county aforesaid (or other general description of the lands or tenements) , which were in the peaceable possession of AB (or which the said CD and EF, tenants of the said AB, now hold against him): You are, therefore, commanded to summon a good and lawful jury of your county to meet on the premises, or at a place convenient thereto, on the . . . day of . . ., to inquire into the forcible entry (or forcible detainer) aforesaid; and give to the said CD and EF at least three (3) days' notice of the time and place of the meeting of the jury; and have then there this writ. Witness, etc.'"
Actually, the AOC form 79-215, though it bears the title "Eviction notice: Notice of Eviction Hearing", is in legal parlance the "warrant" described with particularity, and is the "warrant" issued upon complaint by a person aggrieved by a forcible entry or detainer.
The warrant issued and served under KRS 383.210 is in reality a civil court process. It serves the purpose of a civil summons. Once the warrant is properly issued and served, it brings the parties defendants before the district court, regardless of whether the trial is by jury or not. See McHugh v. Knippert, Ky., 243 S.W.2d 654 (1951) and KRS 383.210(2). See Bledsoe v. Leonhart, 305 Ky. 707, 205 S.W.2d 483 (1947) 484.
The sheriff's fee for serving the warrant described in KRS 383.210 is that fee described as "executing and returning process" in KRS 64.090. That fee is ten dollars ($10).
Under the above statutes, analysis, and case authority, the regular civil summons (AOC-82-105) is not involved in forcible entry and detainer cases. There can be no valid duplication of court process. One court process properly issued and served is sufficient.
We are of the opinion that KRS 383.210 clearly indicates that the "warrant" document described therein is a civil "process" document as envisioned by the language "executing and returning process", as found in the fee schedule of KRS 64.090. This view is buttressed by the fact that the sheriff's fee for serving process in a misdemeanor case (criminal) is also ten dollars ($10). This serving process fee of ten dollars ($10) applies to the warrant. The present fee schedule in KRS 64.090 has been brought into uniformity by way of establishing the process fee as ten dollars ($10) in both civil and criminal cases. In the early case of Gowdy v. Sanders, 88 Ky. 346, 11 S.W. 82 (1889), the word "process" was defined, in the old Civil Code of Practice, to be a writ or summons issued in the cause of judicial proceedings." (Emphasis added). See also Johnson v. Elkins, 90 Ky. 163, 13 S.W. 448 (1890) 449; and Parsons v. Dills, 159 Ky. 471, 167 S.W. 415 (1914) 416. Black's Law Dictionary, 4th Ed., page 1370, defines "judicial process" more specifically as being the "writ, summons, mandate, or other process which is used to inform the defendant of the institution of proceedings against him and to compel his appearance, in either civil or criminal cases." (Emphasis added).
CONCLUSIONS
(1) Since the warrant described in KRS 383.210 is the document to be used to bring the defendfant before the court, regardless of whether or not the matter is to be tried by a jury, the warrant is judicial process. Thus the sheriff's fee for executing the warrant by serving it on the defendant is ten dollars ($10), pursuant to KRS 64.090, which uses the term for "executing and returning process" in designating a fee of ten dollars ($10).
(2) Where a jury is demanded by either the plaintiff or defendant, pursuant to KRS 383.210(2), and as reflected in the warrant, the sheriff must be paid the additional fee of eight dollars ($8) for summoning and attending a jury in case of forcible entry and detainer, besides fees for summoning witnesses, as prescribed by KRS 64.090.