Request By:
Mr. Jerome R. Baker, Jr.
Attorney at Law
Legal Arts Building
200 South Seventh Street
Louisville, Kentucky
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter you stated that service was made by the deputy sheriff of the verified complaint for a restraining order, exhibits thereto, summons, and restraining order on nine (9) co-defendants present at a meeting. Service was in effect simultaneously performed on all papers; and you personally transported the deputy to and from the place of service.
Your question: What fee is owed the sheriff for such service?
As relates to serving the complaint and summons, the complaint and summons must now be served together. In other words, they are considered as one document. CR 4.04. KRS 64.090 provides a fee of ten dollars ($10.00) for executing and returning process. We can find no statute providing an additional fee for serving a copy of the complaint or other initiating document. Process includes the issuance of a summons upon the filing of a complaint. CR 3, and Delong v. Delong, Ky., 335 S.W.2d 895 (1960) 896. In the absence of an express statute, the sheriff cannot collect a separate fee for the complaint. Harlan County v. Blair, 243 Ky. 777, 49 S.W.2d 1028 (1932) 1029; and KRS 64.410(2)(a)(b). Also see the earlier case of Gowdy v. Sanders, 88 Ky. 346, 11 S.W. 82 (1889), on the point that "process" is a writ or summons issued in the course of judicial proceedings. See also Bonnie Braes Farms Inc. v. Robinson, Ky.App., 598 S.W.2d 765 (1980), holding that judicial process includes the means of compelling a defendant to appear in court.
The process was served upon nine (9) co-defendants present at a meeting. Thus service was effected simultaneously upon all nine defendants.
The summons contained the names of all nine (9) defendants, as required by CR 4.02 (it says "the summons shall be . . . . Directed to each defendant" ) and Form 1 of the Rules of Civil Procedure. (Emphasis added). The fee for serving process under KRS 64.090 is ten dollars ($10.00). KRS 64.090 does not provide $10 for serving process on each defendant. We must construe the statute as it is literally worded. Department of Revenue v. Greyhound Corp., Ky., 321 S.W.2d 60 (1959). The expression "executing and returning process . . . . $10", in KRS 64.090, refers to the process issued in each case. If the legislature had intended to mean $10 for each defendant served with process, it could have easily said so. In fact, as relates to summoning witnesses, KRS 64.090 provides the sheriff with a fee of $2.00 for "summoning each withess." (Emphasis added).
The sheriff gets a fee of three dollars ($3.00) for "serving an order of the court and return", pursuant to KRS 64.090. See CR 65.03(4).
The total fee earned by the sheriff in your situation was thus thirteen dollars ($13.00).
If the sheriffs are not happy with KRS 64.090 in its present wording, they should go to the legislature with a request to amend the language to show specific fees for serving process and a court order for each defendant named in the suit. We thus agree with your analysis and interpretation of the statute.