Request By:
Mr. Sam Harrod
Franklin County Sheriff
P.O. Box F
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on the following question relating to the sheriff's fee:
"According to Senate Bill 191, the sheriff may charge $10 for executing and returning a summons. May the sheriff charge the $10 fee when he makes several attempts to serve the summons but finds that the defendant has moved from his jurisdiction?"
We assume you refer to an attempted service of summons on the defendant in a civil suit.
A "summons" is the means of notifying a defendant of a suit and ordering him to appear in court. Louisville & N.R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253 (1936). The summons is a court process. The Court of Appeals observed in Bonnie Braes Farms Inc. v. Robinson, Ky.App., 598 S.W.2d 765 (1980), that "Judicial process may broadly be defined as all acts of the court, from the beginning of the proceeding to its end; a more narrow definition is the means of compelling a defendant to appear in court."
A civil action is commenced by the filing of a by the filing of a complaint with the court and the issuance of a summons or warning order in good faith. CR 3, and Roehrig v. Merchants and Businessmen's Mut. Ins. Co., Ky., 391 S.W.2d 369 (1965). There the court held that "if, when the summons was issued, the plaintiff had a bona fide, unequivocal intention of having it served presently or in due course or without abandonment, the summons was issued in good faith."
However, a central fact is that you were unable to make a return of service had. The purpose of the officer's return is to give evidence of the fact that service has been had in conformity with the command of process and to put on record the statement of a responsible official that notice has been given to the defendant of the proceedings against him. The return is an official act and constitutes the official oath of the officer as to the facts stated in the return. Ryan v. Collins, Ky., 481 S.W.2d 85 (1972) 87. Thus a return to be valid must involve a valid service of process.
The general sheriff's fee for "executing and returning process", is, under KRS 64.090, ten dollars ($10.00). (Emphasis added). The literal language of the statute can only mean that the fee for serving process is conditioned upon the actual service of process upon the defendant. Unfortunately, since you were unable to actually serve process upon the defendant, your normal fee cannot be legally collected. See the old case of Oatts v. Jones, 51 Ky. 49, 12 B. Monroe 49 (1851), holding that there was no statute of Kentucky allowing a sheriff a fee for a return of "Not Found" upon a subpoena in chancery. That decision was made several years prior to the American Civil War. However, a careful examination of the Shepard's Kentucky Citations reveals no change in the law as relates to the holding in Oatts v. Jones.
Our conclusion gives credence to the literal language and ordinary meaning of KRS 64.090, as relates to "executing and returning process." Old Lewis Hunter Distillery Co. v. Kentucky Tax Commission, 302 Ky. 68, 193 S.W.2d 464 (1946).