Request By:
Joseph W. Castlen, III
Administrative Assistant/Counsel
Commissioners of the Sinking Fund
of the City of Louisville
617 West Jefferson Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By William S. Riley, Assistant Attorney General
In your recent letter to the Attorney General, it is stated that the Commissioners of the Sinking Fund of the City of Louisville have employed you to file civil suits on behalf of the Commissioners to collect delinquent occupational taxes. Almost all suits will be filed beginning January, 1978. Service of process cannot be had by the sheriff in approximately one-third of the cases. In order to bring the defendants before the court, service of process must be either by professional special bailiffs or by requesting the court to appoint an employee of the Sinking Fund staff as special bailiff.
Special bailiffs have quoted fees for their services ranging from $15 to $35 for service of each pleading. The cost is prohibitive as far as the Sinking Fund is concerned. The Sinking Fund desires that an employee on its staff perform the function of special bailiff. Except in performance of such services, the employee would be performing other tasks under the control of the Secretary-Treasurer. He will not be under your supervision.
The circuit court has indicated that such employee would not be considered a party to collection suits filed and that the interest of the employee in the litigation would be insubstantial in that if service were found defective on the basis of an interested person serving the summons, the judgment would only be voidable, not void. The quarterly court has indicated such employee would be considered an interested person and service by him would deprive the court of jurisdiction rendering any default judgment void.
The question is whether it would be legal for an employee of the Commissioners Sinking Fund to be appointed by the circuit court or quarterly court as a special bailiff to serve process on the defendant where the Sinking Fund, who is the employer of the special bailiff, is a plaintiff in the action. If such service by an employee is contrary to the statutory mandates or common law practices, would a judgment be voidable or void.
A research of the case law does not reveal any Kentucky cases on this point. Rule 4.01 of the Kentucky Rules of Civil Procedure provides that for the filing of a complaint, the clerk shall forthwith issue the required summons and cause it, with necessary copies, to be delivered for service to any person authorized to serve it.
KRS 25.015, which was repealed by the 1976 Extraordinary Session of the General Assembly, provides that summons from a quarterly court or county court was to be directed to the sheriff, coroner or a constable at the option of the plaintiff.
KRS 454.140 provides every process in an action or proceeding shall be directed to the sheriff of the county; or, if he be a party or be interested, to the coroner; or, if he be interested, to the jailer; or, if all these officers be interested, to any constable.
It is pointed out in OAG 74-657 that under KRS 454.145 the Court, for good cause, may appoint a person to serve a particular process or order and he shall have the same power to execute it as the sheriff has. That statute, however, does not suggest the appointment of a person having an interest in the litigation to serve process on a regular, continuous basis.
In 72 C.J.S., Process, Section 28, it is pointed out that in order that an officer may make legal service he must have authority to do so. An interest which is remote and indirect will not disqualify and where his interest in the cause is merely nominal or formal and he has no personal interest in its subject matter, it has been held that the officer is not disqualified, nor is his deputy.
In
Columbia Valley Credit Exchange, Inc. v. Byron Lampson, et al, Wash. 533 P.2d 152 (1975), the court held valid the service of summons and complaint by an attorney for the plaintiff. There the civil rule provided that the service of summons and process shall be by the sheriff of the county where the service is made or by his deputy, or by any person over 18 years of age who is competent to be a witness in the action, other than a party. The court held that "party" as used in the statute, is employed in its technical sense and a person not strictly a party according to the record is therefore competent to serve the summons, that the service by an attorney in this case could not be construed to mean service by a party.
However, in
State ex rel West Virginia Truck Stop, Inc. v. W. H. Belcher, etc., W.Va., 192 S.E.2d 299 (1972) the opposite result was reached. There a full-time employee of a domestic corporation was acting as the plaintiff's agent in the service of the summons. The court held this a valid prohibition of the rule of service of process.
To the same effect also see R. M. Bramlett v. The District Court of Marshall County, Okl. 557 P.2d (1976).
In light of the above decisions from other jurisdictions and the wording of the statutes that have been in effect in this state together with the opinion expressed in OAG 74-657, it would appear that the service of process by an employee of the Sinking Fund of the City of Louisville, which is also the plaintiff in the action, would be of doubtful validity and would, at the very least, render such judgments voidable, if not void.