The Three Types of Process
May 29, 2018 § Leave a comment
When most of us think about process, we think in terms of MRCP 4 process and R81 process. But, in actuality, there are three types.
Process under R4 requires an answer within thirty days or a default judgment may be entered.
Process under R81, however, requires no answer, but the defendant or respondent must appear and defend on the specified day, or a judgment may be entered against him or her. One type of R81 process requires 30 days’ notice returnable to a day certain. The other type requires a minimum of 7 days’ notice. Here are the two categories set out in R81(d):
(1) The following actions and matters shall be triable 30 days after completion of service of process in any manner other than by publication or 30 days after the first publication where process is by publication, to-wit: adoption; correction of birth certificate; alteration of name; termination of parental rights; paternity; legitimation; uniform reciprocal enforcement of support; determination of heirship; partition; probate of will in solemn form; caveat against probate of will; will contest; will construction; child custody actions; child support actions; and establishment of grandparents’ visitation.
(2) The following actions and matters shall be triable 7 days after completion of service of process in any manner other than by publication or 30 days after the first publication where process is by publication, to wit: removal of disabilities of minority; temporary relief in divorce, separate maintenance, child custody, or child support matters; modification or enforcement of custody, support, and alimony judgments; contempt; and estate matters and wards’ business in which notice is required but the time for notice is not prescribed by statute or by subparagraph (1) above.
None of the matters in bold may be taken as confessed. Proof is required. (R81(d)(3)). And that is so even though no answer is required. (R81(d)(4)).
Both types of R81 process require that “summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard.” (R81(d)(5)).
If the matter can not be heard on the date set in the process, the matter may be continued to a later date, but the continuance order must be signed by the judge on the set in the process. In this district we refer to that date as the “return day.” Each succeeding continuance order must be signed on the date to which the matter was continued. If the case is continued in this fashion no further process is required. (R81(d)(5)).