Chapter 60, Article 3 – Process.
60-303. Methods of service of process.
(a) Methods of service of process within this state, except service by publication as provided in K.S.A. 60-307, and amendments thereto, are described in this section. Methods of out-of-state service of process are described in K.S.A. 60-308, and amendments thereto.
(b) Service by certified mail. Except if the attorney for the party or the party, if the party is not represented by an attorney, requests personal or residence service pursuant to subsection (c); if the attorney or the party requesting service elects to serve process by certified mail pursuant to this subsection; as provided in K.S.A. 60-903, 60-2401 or 60-3104, and amendments thereto; or as otherwise provided by law, the sheriff of the county wherein the action is filed shall serve any process by certified mail, evidenced by return receipt signed by any person or by restricted delivery, unless otherwise permitted by this article. The sheriff, attorney for the party seeking service or the party, if the party is not represented by an attorney, shall cause a copy of the process and petition or other document to be placed in an envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, adequate postage to be affixed and the sealed envelope to be placed in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The sheriff, party’s attorney or the party, if the party is not represented by an attorney, shall execute a return on service stating the nature of the process, the date on which the process was mailed, and the name and address on the envelope containing the process mailed as certified mail return receipt requested. The sheriff, party or the party’s attorney shall file the return on service and the return receipt or return envelope in the records of the action. Service of process shall be considered obtained under K.S.A. 60-203, and amendments thereto, upon the delivery of the certified mail envelope. If the certified mail envelope is returned with an endorsement showing refusal of delivery, the sheriff, serving party or the party’s attorney shall send a copy of the process and petition or other document to be served to the defendant by ordinary, first-class mail. The mailing shall be evidenced by a certificate of mailing which shall be filed with the clerk. Service shall be considered obtained upon the mailing by ordinary, first-class mail. Failure to claim certified mail service is not refusal of service within the meaning of this subsection.
(c) Personal and residence service.
(1) When the plaintiff files a written request with the clerk for service other than by certified mail, service of process shall be made by personal or residence service. Personal service shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served. Residence service shall be made by leaving a copy of the process and petition, or other document to be served, at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion residing therein. If service cannot be made upon an individual, other than a minor or a disabled person, by personal or residence service, service may be made by leaving a copy of the process and petition, or other document to be served, at the defendant’s dwelling house or usual place of abode and mailing a notice that such copy has been left at such house or place of abode to the individual by first-class mail.
(2) When process is to be served under this subsection, the clerk of the court shall deliver the process and sufficient copies of the process and petition, or other document to be served, to the sheriff of the county where the process is to be served or, if requested, to a person appointed to serve process or to the plaintiff’s attorney.
(3) Service, levy and execution of all process under this subsection, including, but not limited to, writs of execution, orders of attachment, replevin orders, orders for delivery, writs of restitution and writs of assistance, shall be made by a sheriff within the sheriff’s county, by the sheriff’s deputy, by an attorney admitted to the practice of law before the supreme court of Kansas or by some person appointed as a process serverF by a judge or clerk of the district court, except that a subpoena may also be served by any other person who is not a party and is not less than 18 years of age. Process servers shall be appointed freely and may be authorized either to serve process in a single case or in cases generally during a fixed period of time. A process server or an authorized attorney may make the service anywhere in or out of the state and shall be allowed the fees prescribed in K.S.A. 28-110, and amendments thereto, for the sheriff and such other fees and costs as the court shall allow. All persons authorized under this subsection to serve, levy and execute process shall be considered an “officer” as used in K.S.A. 60-706 and 60-2401 and amendments thereto.
(4) In all cases when the person to be served, or an agent authorized by the person to accept service of process, refuses to receive copies thereof, the offer of the duly authorized process server to deliver copies thereof, and the refusal, shall be a sufficient service of the process.
(d) Acknowledgment or appearance. An acknowledgment of service on the summons is equivalent to service. The voluntary appearance by a defendant is equivalent to service as of the date of appearance
History: L. 1963, ch. 303, 60-303; L. 1976, ch. 251, § 14; L. 1982, ch. 244, § 1; L. 1986, ch. 215, § 14; L. 1990, ch. 202, § 4; L. 1992, ch. 290, § 1; L. 1994, ch. 273, § 12; July 1.
60-304. Service of process, on whom made.
As used in this section, “serving” means making service by any of the methods described in K.S.A. 60-303, and amendments thereto, unless a specific method of making service is prescribed in this section. Except for service by publication under K.S.A. 60-307, and amendments thereto, service of process under this article shall be made as follows:
(a) Individual. Upon an individual other than a minor or a disabled person, by serving the individual or by serving an agent authorized by appointment or by law to receive service of process, but if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given. Service by certified mail shall be addressed to an individual at the individual’s dwelling house or usual place of abode and to an authorized agent at the agent’s usual or designated address. If service by certified mail to the individual’s dwelling house or usual place of abode is refused or unclaimed, the sheriff, party or party’s attorney seeking service may complete service by certified mail, restricted delivery, by serving the individual at a business address after filing a return on service stating the certified mailing to the individual at such individual’s dwelling house or usual place of abode has been refused or unclaimed and a business address is known for such individual.
(b) Minor. Upon a minor, by serving the minor and also either the minor’s guardian or conservator if the minor has one within the state or the minor’s father or mother or other person having the minor’s care or control or with whom such minor resides, or if service cannot be made upon any of them, then as provided by order of the judge. Service by certified mail shall be addressed to an individual at the individual’s dwelling house or usual place of abode and to a corporate guardian or conservator at such guardian or conservator’s usual place of business.
(c) Disabled person. Upon a disabled person, as defined in K.S.A. 59-3002, and amendments thereto, by serving (1) such person’s guardian, conservator or a competent adult member of such person’s family with whom the person resides, or if such person is living in an institution, then the director or chief executive officer of the institution or, if service cannot be made upon any of them, then as provided by order of the judge, and (2) unless the judge otherwise orders, the disabled person. Service by certified mail shall be addressed to a director or chief executive officer of an institution at the institution, to any other individual at the individual’s dwelling house or usual place of abode, and to a corporate guardian or conservator at such guardian or conservator’s usual place of business.
(d) Governmental bodies. (1) Upon a county, by serving one of the county commissioners or the county clerk or the county treasurer; (2) upon a township, by serving the clerk or the trustee; (3) upon a city, by serving the clerk or the mayor; (4) upon any other public corporation, body politic, district or authority by serving the clerk or secretary or, if not to be found, to any officer, director or manager thereof; and (5) upon the state or any governmental agency of the state, when subject to suit, by serving the attorney general or an assistant attorney general. Service by certified mail shall be addressed to the appropriate official at the official’s governmental office. Income withholding orders for support and orders of garnishment of earnings of state officers and employees shall be served upon the state or governmental agency of the state in the manner provided by K.S.A. 60-723 and amendments thereto.
(e) Corporations and partnerships. Upon a domestic or foreign corporation or upon a partnership or other unincorporated association, when by law it may be sued as such, (1) by serving an officer, partner or a resident, managing or general agent, or (2) by leaving a copy of the summons and petition at any business office of the defendant with the person having charge thereof, or (3) by serving any agent authorized by appointment or required by law to receive service of process, and if the agent is one authorized by law to receive service and the law so requires, by also mailing a copy to the defendant. Service by certified mail on an officer, partner or agent shall be addressed to such person at the person’s usual place of business.
(f) Foreign corporation or foreign limited partnership resident agent. Service of process or service of any notice or demand required or permitted by law to be served on a foreign corporation or foreign limited partnership may also be made on the corporation or limited partnership by service thereof on the resident agent of the corporation or limited partnership. Whenever any foreign corporation or foreign limited partnership authorized to transact business or transacting business without authority in this state fails to appoint or maintain in this state a resident agent upon whom service of legal process or service of any such notice or demand may be had, whenever the resident agent of such corporation or limited partnership cannot with reasonable diligence be found at the registered office in this state or whenever the certificate of authority of any foreign corporation or foreign limited partnership is forfeited, the secretary of state shall be irrevocably authorized as the agent and representative of the foreign corporation or foreign limited partnership to accept service of any process or service of any notice or demand required or permitted by law to be served upon the corporation or limited partnership. Service on the secretary of state of any process, notice or demand against the foreign corporation or foreign limited partnership shall be made by delivering to and leaving with the secretary of state, or with any clerk having charge of the corporation department of the secretary of state’s office, the original and two copies of the process and two copies of the petition, notice or demand, or the clerk of the court may send the original process and two copies of both the process and the petition, notice or demand directly to the secretary of state by restricted mail. In the event that any process, notice or demand is served on the secretary of state, the secretary shall immediately cause a copy thereof to be forwarded by restricted mail, addressed to the corporation or limited partnership at its principal office as it appears in the records of the secretary of state, or to the registered or principal office of the corporation or limited partnership in the state of its incorporation or formation. The secretary of state shall keep a record of all processes, notices and demands served upon the secretary under this subsection, and shall record in the record the time of the service and the action of the secretary with reference to it. A fee of $30 shall be paid to the secretary of state by the party requesting the service of process, to cover the cost thereof. That fee shall not be included within or paid from any deposit as security for any costs or docket fee required by K.S.A. 60-2001 or 61-2501, and amendments thereto.
(g) Insurance companies or associations. Service of summons or other process may also be made on any insurance company or association, organized under the laws of the state of Kansas by service on the commissioner of insurance in the same manner as that provided for service on foreign insurance companies. All the requirements of law relating to service on foreign insurance companies so far as applicable shall also apply to domestic insurance companies.
(h) Service upon an employee. If the plaintiff or the plaintiff’s agent or attorney files an affidavit that to the best of the affiant’s knowledge and belief the defendant is a nonresident who is employed in this state, or that the place of residence of the defendant is unknown, the affiant may direct that the service of summons or other process be made by the sheriff or other duly authorized person by directing an officer, partner, managing or general agent, or the person having charge of the office or place of employment at which the defendant is employed, to make the defendant available for the purpose of permitting the sheriff or other duly authorized person to serve the summons or other process.
History: L. 1963, ch. 303, 60-304; L. 1965, ch. 354, § 5; L. 1970, ch. 235, § 1; L. 1973, ch. 234, § 1; L. 1976, ch. 251, § 15; L. 1981, ch. 232, § 2; L. 1982, ch. 363, § 9; L. 1983, ch. 88, § 74; L. 1986, ch. 215, § 15; L. 1990, ch. 202, § 5; L. 1994, ch. 273, § 1; July 1.
60-305. Process agents for public utilities, except motor common and contract carriers.
Every individual, partnership, association or corporation engaged in the business of transmission of communications, or the distribution of electricity, gas, water or petroleum products, which is subject to regulation by the state corporation commission, doing business in this state, shall designate, in accordance with K.S.A. 60-306, and amendments thereto, a resident of the state of Kansas upon whom process may be served. Any company or corporation may revoke the appointment and designation of such person upon whom process may be served, by appointing any other person qualified as above specified and filing an instrument of appointment as provided in K.S.A. 60-306, and amendments thereto. Every second or subsequent appointment shall also designate the person whose place is filled by such appointment. If any such company or corporation fails to designate and appoint such person, as required by this section, such process may be served as provided by the other provisions of this article 3 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.
History: L. 1963, ch. 303, 60-305; L. 1973, ch. 134, § 49; L. 1982, ch. 245, § 1; L. 1990, ch. 202, § 6; L. 1992, ch. 67, § 1; July 1.
60-305a. Process agents for motor common carriers and motor contract carriers.
Every individual, partnership, association or corporation engaged in the business of transportation as a common carrier or contract carrier, which is subject to regulation by the state corporation commission, doing business in this state shall designate some person residing in this state on whom all process and notices issued by any court of record may be served. In every case such individual, partnership, company or corporation shall file a certificate of the appointment and designation of such person in the office of the state corporation commission or as required pursuant to 49 U.S.C. § 11506. The service of the process upon the person so designated, in any civil action, shall be deemed and held to be as effectual and complete as if service of such process were made upon the president or other chief officer of such individual, partnership, company or corporation. Any individual, partnership, company or corporation may revoke the appointment and designation of such person upon whom process may be served, by appointing any other person qualified as above specified and filing a certificate of such appointment. Every second or subsequent appointment shall also designate the person whose place is filled by such appointment. If any such individual, partnership, company or corporation fails to designate and appoint such person, as required by this section, such process may be served in any county as provided by provisions of article 3 of chapter 60 of Kansas Statutes Annotated, and amendments thereto.
History: L. 1982, ch. 245, § 2; L. 1990, ch. 202, § 7; L. 1993, ch. 263, § 2; July 1.
60-306. Process service agent.
(a) Generally. Any individual, partnership, association or corporation may file in the office of the secretary of state an instrument appointing a resident of the state of Kansas as agent upon whom process for such person, fiduciary, company or corporation may be served, and consenting without limitation or exception other than as provided in this act that service of process may be issued out of any court upon such service agent as the agent of such individual, partnership, association or corporation. The instrument appointing such service agent shall be acknowledged, shall state the residence or office address of the service agent, and shall be recorded at length upon the register of service agents and shall state that such designation is made pursuant to this section.
(b) Change of address. An appointment shall be amended, in writing, and filed with the secretary of state whenever the name or address of the service agent is no longer accurate.
(c) Period of appointment. The appointment shall remain in effect for a period of three years from the date of its filing unless revoked in writing, executed in the same manner as such appointment, which revocation shall be recorded and indexed in the register of service agents.
(d) Collection of fee. The fee for filing an appointment, amendment or revocation shall be $20. The secretary of state shall remit to the state treasurer at least monthly all fees received pursuant to this section. The state treasurer shall deposit the entire amount in the state treasury and credit the amount to the information and copy service fee fund created in K.S.A. 75-438, and amendments thereto.
(e) Effect of service upon agent. When any person, fiduciary or corporation shall have appointed such a service agent and such appointment remains unexpired and unrevoked, process issued in any action or proceeding against such person, fiduciary or corporation in any court may be served upon such service agent. Service by publication shall be of no force or effect where an appointment of service agent made and filed as herein provided remains in effect, unless process showing upon its face the name and address of such service agent shall have been duly issued to the proper officer of the county of such service agent’s residence as shown on the register of service agents and returned by such officer to whom it has been directed, with a notation, that such officer cannot find such service agent in the county. Such notation shall also state the name of the service agent who could not be found.
History: L. 1963, ch. 303, 60-306; L. 1976, ch. 196, § 3; L. 1992, ch. 67, § 2; July 1.
60-307. Service by publication.
(a) When permissible. Service may be made by publication in any of the following cases:
(1) In actions to obtain a divorce, maintenance or an annulment of the contract of marriage if the defendant resides out of the state or if the party with due diligence is unable to make service of summons upon the defendant within the state.
(2) In actions brought against a person who is a nonresident of the state or a foreign corporation having in this state property or debts owing to the person sought to be taken by any of provisional remedies or to be appropriated in any way.
(3) In actions which relate to or the subject of which is real or personal property in this state, if any defendant has or claims a lien or interest, vested or contingent, in the property, or the relief demanded consists wholly or partly in excluding the defendant from any interest in the property, or in actions for partition or for foreclosure of a lien, if the defendant is a nonresident of the state or a foreign corporation or if the party with due diligence is unable to make service of summons upon the defendant within the state.
(4) In all actions in which the defendant, being a resident of this state, has departed from this state or from the county of the defendant’s residence, with the intent to delay or defraud creditors or to avoid the service of a summons, or hides in the state or county with that intent, or in an action against a domestic corporation which has not been legally dissolved, if the officers thereof have departed from the state or cannot be found.
(5) In any of the actions mentioned in this subsection, publication service may be had on any of the following who are made defendants as such: The unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of any deceased defendants; the unknown spouses of any defendants; the unknown officers, successors, trustees, creditors and assigns of any defendants that are existing, dissolved or dormant corporations; the unknown executors, administrators, devisees, trustees, creditors, successors and assigns of any defendants that are or were partners or in partnership; the unknown guardians, conservators and trustees of any defendants that are minors or are under any legal disability; and the unknown heirs, executors, administrators, devisees, trustees, creditors and assigns of any person alleged to be deceased.
(b) Construction and effect. The process provisions of this section shall be construed as separate and permissive methods of obtaining service. If the defendant served in accordance with this section does not appear, judgment may be rendered affecting the property, res or status within the jurisdiction of the court as to the defendant, but the service shall not warrant a personal judgment against the defendant.
(c) Affidavit for service by publication. Before service by publication as provided in this section can be made, one of the parties or the party’s attorney shall file an affidavit stating any of the following facts that are applicable:
(1) The residences of all named defendants sought to be served, if known, and the names of all defendants whose residences are unknown after reasonable effort to ascertain the same.
(2) The affiant has made a reasonable but unsuccessful effort to ascertain the names and residences of any defendants sought to be served as unknown parties in accordance with subsection (a)(5).
(3) The party seeking service by publication is unable to procure service of summons on the defendants in this state.
(4) The case is one of those mentioned in clauses (1) through (4) of subsection (a). The affidavit shall be in substantially the following form:
(Name of Court)
______________, Plaintiff, vs.
______________, (Name of first defendant), et al. Defendants.
(affidavit)
State of Kansas, ______ County, ss:
______, of lawful age, being first duly sworn, states that
1. The affiant is (the plaintiff or defendant, or an attorney for the plaintiff or defendant) in the above action and makes this affidavit for the purpose of obtaining service by publication upon the parties named herein.
2. The defendants on whom service by publication is sought and whose names and addresses are known are as follows: (Names and addresses).
3. The defendants on whom service by publication is sought whose names are known but whose residences are unknown notwithstanding reasonable effort of the affiant to ascertain the same are as follows: (Names).
4. The affiant does not know and with reasonable diligence is unable to ascertain the names or residences of any of those classes of unknown persons who are or may be concerned in the subject of this litigation, as mentioned in subsection (a)(5) of K.S.A. 60-307, and amendments thereto, but that the affiant desires to include all such in the affiant’s constructive service.
5. The affiant is unable to procure service of summons on any of the specified defendants within this state.
6. This action is one of those mentioned in K.S.A. subsections (a)(1) through (4) of 60-307, and amendments thereto. ____________
(Jurat)(Signature)
When the affidavit is filed, service may proceed by publication.
(d) Publication; form of notice; description of property, when. The notice shall be published once a week for three consecutive weeks in some newspaper published in the county where the petition is filed and which newspaper is authorized by law to publish legal notices. If there is no newspaper published in the county, the notice may be published in a newspaper having general circulation in the county. The notice must name the defendants to be served and notify them and all other persons who are or may be concerned that the defendants have been sued in a named court and must answer or plead otherwise to the petition, or other pleading, filed in the court, on or before a date to be stated, which date shall be not less than 41 days from the date the notice is first published, or the petition or other pleading filed will be taken as true, and judgment, the nature of which shall be stated, will be rendered accordingly. The notice shall be in substantially the following form:
Notice of Suit
The state of Kansas to (names of defendants to whom notice is given) and all other persons who are or may be concerned:
You are hereby notified that a (petition or other pleading) has been filed in (name of court) by (name of pleader) praying for (state briefly the nature of the pleading and the judgment or other relief sought), and you are hereby required to plead to the (petition or other pleading) on or before ______________, 20__, in the court at __________, Kansas. If you fail to plead, judgment and decree will be entered in due course upon the (petition or other pleading).
_____________________________________ (Name of plaintiff or other party.)
Where the action affects property, the notice need not expressly describe the property, unless the description is otherwise required by law, but the property may be identified by reference to the pleading.
(e) Mailing copy of notice. The party seeking to secure service by publication shall, within seven days after the first publication, mail a copy of the publication notice to each defendant whose address is stated in the affidavit for service by publication.
(f) When service complete. Service by publication shall be deemed complete when it has been made in the manner and for the time prescribed in subsections (d) and (e), and the service shall be proved. No judgment by default shall be entered on the service until proof of service is made, approved by the court and filed.
History: L. 1963, ch. 303, 60-307; L. 1965, ch. 355, § 1; L. 1970, ch. 232, § 2; L. 1982, ch. 152, § 22; L. 1990, ch. 202, § 8; L. 1994, ch. 68, § 3; July 1.
60-308. Service outside state.
(a) Proof and effect.
(1) Service of process may be made upon any party outside the state. If upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of service of process within this state; otherwise it shall have the force and effect of service by publication.
(2) The service of process shall be made (A) in the same manner as service within this state, by any officer authorized to make service of process in this state or in the state where the defendant is served or (B) by sending a copy of the process and of the petition or other document to the person to be served in the manner provided in subsection (e). No order of a court is required. An affidavit, or any other competent proofs, of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.
(3) No default shall be entered until the expiration of at least 30 days after service. A default judgment rendered on service outside this state may be set aside only on a showing which would be timely and sufficient to set aside a default judgment under subsection (b) of K.S.A. 60-260, and amendments thereto.
(b) Submitting to jurisdiction – process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
(1) Transaction of any business within this state;
(2) commission of a tortious act within this state;
(3) ownership, use or possession of any real estate situated in this state;
(4) contracting to insure any person, property or risk located within this state at the time of contracting;
(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state;
(6) acting within this state as director, manager, trustee or other officer of any corporation organized under the laws of or having a place of business within this state or acting as executor or administrator of any estate within this state;
(7) causing to persons or property within this state any injury arising out of an act or omission outside of this state by the defendant if, at the time of the injury either (A) the defendant was engaged in solicitation or service activities within this state; or (B) products, materials or things processed, serviced or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of trade or use;
(8) living in the marital relationship within the state notwithstanding subsequent departure from the state, as to all obligations arising for maintenance, child support or property settlement under article 16 of this chapter, if the other party to the marital relationship continues to reside in the state;
(9) serving as the insurer of any person at the time of any act by the person which is the subject of an action in a court of competent jurisdiction within the state of Kansas which results in judgment being taken against the person;
(10) performing an act of sexual intercourse within the state, as to an action against a person seeking to adjudge the person to be a parent of a child and as to an action to require the person to provide support for a child as provided by law, if (A) the conception of the child results from the act and (B) the other party to the act or the child continues to reside in the state; or
(11) entering into an express or implied arrangement, whether by contract, tariff or otherwise, with a corporation or partnership, either general or limited, residing or doing business in this state under which such corporation or partnership has supplied transportation services, or communication services or equipment, including, without limitation, telephonic communication services, for a business or commercial user where the services supplied to such user are managed, operated or monitored within the state of Kansas, provided that such person is put on reasonable notice that arranging or continuing such transportation services or telecommunication services may result in the extension of jurisdiction pursuant to this section.
(c) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in subsection (b), may be made by serving the process upon the defendant outside this state, as provided in subsection (a)(2), with the same force and effect as though process had been served within this state, but only causes of action arising from acts enumerated in subsection (b) may be asserted against a defendant in an action in which jurisdiction over the defendant is based upon this subsection.
(d) Nothing contained in this section limits or affects the right to serve any process in any other manner provided by law.
(e) Service by certified mail. Service of any out-of-state process may be by certified mail, evidenced by return receipt signed by any person or by restricted delivery. The attorney for the party seeking service or the party, if the party is not represented by an attorney, shall cause a copy of the process and petition or other document to be placed in an envelope addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto, adequate postage to be affixed and the sealed envelope to be placed in the United States mail as certified mail return receipt requested with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The party’s attorney or the party, if the party is not represented by an attorney, shall execute a return on service stating the nature of the process, the date on which the process was mailed, and the name and address on the envelope containing the process mailed as certified mail return receipt requested. The party or the party’s attorney shall file the return on service and the return receipt or return envelope in the records of the action. Service of process shall be considered obtained under K.S.A. 60-203, and amendments thereto, upon the delivery of the certified mail envelope. If the certified mail envelope is returned with an endorsement showing refusal of delivery, the serving party or the party’s attorney may send a copy of the process and petition or other document to be served to the defendant by ordinary, first-class mail. The mailing shall be evidenced by a certificate of mailing which shall be filed with the clerk. Service shall be considered obtained upon the mailing by ordinary, first-class mail. Failure to claim certified mail service is not refusal of service within the meaning of this subsection.
History: L. 1963, ch. 303, 60-308; L. 1971, ch. 195, § 1; L. 1972, ch. 221, § 1; L. 1976, ch. 253, § 1; L. 1982, ch. 152, § 23; L. 1986, ch. 215, § 16; L. 1989, ch. 178, § 1; L. 1990, ch. 202, § 9; Jan. 1, 1991.
60-310. Procedure where only part of defendants served.
(a) Same. Where the action is against two or more defendants, and one or more shall have been served, but not all of them, the plaintiff may proceed as follows: First. If the action be against defendants jointly indebted upon contract, the plaintiff may proceed against the defendants served, unless the court otherwise direct; and if he or she recover judgment it may be entered against all the defendants thus jointly indebted so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served. Second. If the action be against defendants severally liable, the plaintiff may, without prejudice to his or her rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants.
(b) Same. Nothing in this section shall be so construed as to make a judgment against one or more defendants jointly or severally liable a bar to another action against those not served.
History: L. 1963, ch. 303, 60-310; Jan. 1, 1964.
60-311. Where process may be served
All process issued for service from any court within the state may be served anywhere within the territorial limits of the state and, when authorized by law, may be served outside this state.
History: L. 1963, ch. 303, 60-311; L. 1990, ch. 202, § 10; Jan. 1, 1991.
60-312. Proof of service
Proof of service shall be made as follows:
(a) Personal and residence service.
(1) Every officer to whom summons or other process shall be delivered for service within or without the state, shall make a statement subject to penalty of perjury as provided in K.S.A. 21-3805 and amendments thereto as to the time, place and manner of service of such writ.
(2) If service of such process is directed to and delivered to a person, other than an officer, for service, such person shall make affidavit as to the time, place and manner of such person’s service thereof.
(b) Service by certified mail. Service by certified mail shall be proven in the manner provided by subsection (b) of K.S.A. 60-303 or subsection (e) of K.S.A. 60-308, and amendments thereto.
(c) Publication service. Service by publication shall be proven by an affidavit showing the dates upon which and the newspaper in which the notice of publication was published. A copy of the notice shall be attached to the affidavit which shall be filed in the cause. When mailing of copies of the publication notice is required in accordance with subsection (e) of K.S.A. 60-307 and amendments thereto, the proof of such mailing shall be by affidavit of the person who mailed such copies and such affidavit shall be filed with the clerk of the court in which the action has been filed. If such mailing was by certified mail, the return receipt shall be made a part of the affidavit and filed therewith.
(d) Time for return. The officer or other person receiving a summons or other process shall make a return of service promptly and in any event within 10 days after the service is effected. If the process cannot be served it shall be returned to the court within 30 days after the date of issue with a statement of the reason for the failure to serve the same, except the time for service thereof may be extended up to 90 days from the date of issue by order of the court or judge of the court to which it is returnable. Immediately upon receipt of the return upon any summons or other process by the clerk of the court issuing the same, such clerk shall mail a copy of such return to the attorney for the party requesting the issuance of such summons or other process or, if such party has no attorney, then to the requesting party’s self.
History: L. 1963, ch. 303, 60-312; L. 1969, ch. 283, § 1; L. 1970, ch. 235, § 2; amended by Supreme Court order dated July 28, 1976; L. 1986, ch. 215, § 17; L. 1990, ch. 202, § 11; L. 1998, ch. 100, § 1; July 1.
Case Notes:
1. Special process server must be authorized to make service of summons in state where defendant served. Hall v. Quivira Square Dev. Co., 675 P.2d 931 (1984).
2. Whether service void because of out-of-state corporate process server not officer of state in which service made is examined. In re Marriage of Welliver, 869 P.2d 653 (1994).
3. Untimely return of service does not void an otherwise valid service; the rights of defendant were not impaired. Cook v. Freeman, 825 P.2d 1185 (1992).
60-313. Amendment of return
At any time in his or her discretion and upon such terms as he or she deems just, the judge may allow any process, return or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. History: L. 1963, ch. 303, 60-313; Jan. 1, 1964.
60-245. Subpoenas
(a) Form; issuance.
(1) Every subpoena shall:
(A) State the name of the court from which it is issued;
(B) state the title of the action, the name of the court in which it is pending and the file number of the action;
(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place specified in the subpoena; and
(D) set forth the text of subsections (c) and (d) of this section.
A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. Subpoena and production of records of a business which is not a party shall be in accordance with K.S.A. 60-245a and amendments thereto.
(2) A subpoena commanding attendance at a trial or hearing shall issue from the district court in which the hearing or trial is to be held. A subpoena for attendance at a deposition shall issue from the district court in which the action is pending or the officer before whom the deposition is to be taken or, if the deposition is to be taken outside the state, from an officer authorized by the law of the other state to issue the subpoena. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the district court in which the action is pending or, if the production or inspection is to be made outside the state, an officer authorized by the law of the other state to issue the subpoena.
(3) Every subpoena issued by the court shall be issued by the clerk under the seal of the court or by a judge. Upon request of a party, the clerk shall issue a blank subpoena. The blank subpoena shall bear the seal of the court, the title and file number of the action and the clerk’s signature or a facsimile of the clerk’s signature. The party to whom a blank subpoena is issued shall fill it in before service.
(b) Service. Service of a subpoena upon a person named therein may be made anywhere within the state, shall be made in accordance with K.S.A. 60-303, and amendments thereto, and shall, if the person’s attendance is commanded, be accompanied by the fees for one day’s attendance and the mileage allowed by law. When sought independently of a deposition, prior notice of any commanded production of documents or inspection of premises before trial shall be served on each party in the manner prescribed by subsection (b) of K.S.A. 60-205 and amendments thereto.
(c) Protection of persons subject to subpoenas.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, a reasonable attorney fee.
(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to subsection (d)(2), a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:
(i) fails to allow reasonable time for compliance;
(ii) requires a resident of this state who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person or requires a nonresident who is not a party or an officer of a party to travel to a place more than 100 miles from the place where the nonresident was served with the subpoena, is employed or regularly transacts business, except that, subject to the provisions of subsection (c)(3)(B)(iii), such a nonparty may in order to attend trial be commanded to travel to the place of trial;
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) If a subpoena:
(i) requires disclosure of a trade secret or other confidential research, development or commercial information; or
(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party; or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(4) A person confined in prison may be required to appear for examination by deposition only in the county where the person is imprisoned.
(d) Duties in responding to subpoena.
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that such information is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced that is sufficient to enable the demanding party to contest the claim.
(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon the person may be considered a contempt of the court in which the action is pending or the court of the county in which the deposition is to be taken. Punishment for contempt shall be in accordance with K.S.A. 20-1204 and amendments thereto. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by subsection (c)(3)(A)(iii).
History: L. 1963, ch. 303, 60-245; amended by Supreme Court order dated July 20, 1972; amended by Supreme Court order dated July 28, 1976; L. 1982, ch. 243, § 1; L. 1985, ch. 196, § 2; L. 1990, ch. 202, § 2; L. 1997, ch. 173, § 24; July 1.
60-245a. Subpoena of records of a business not a party.
(a) As used in this section:
(1) “Business” means any kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.
(2) “Business records” means writings made by personnel or staff of a business, or persons acting under their control, which are memoranda or records of acts, conditions or events made in the regular course of business at or about the time of the act, condition or event recorded.
(b) A subpoena duces tecum which commands the production of business records in an action in which the business is not a party shall inform the person to whom it is directed that the person may serve upon the attorney designated in the subpoena written objection to production of any or all of the business records designated in the subpoena within 14 days after the service of the subpoena or at or before the time for compliance, if the time is less than 14 days after service. If such objection is made, the business records need not be produced except pursuant to an order of the court upon motion with notice to the person to whom the subpoena was directed. Unless the personal attendance of a custodian of the business records and the production of original business records are required under subsection (d), it is sufficient compliance with a subpoena of business records if a custodian of the business records delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described in the subpoena and mails a copy of the affidavit accompanying the records to the party or attorney requesting them within 14 days after receipt of the subpoena. The records described in the subpoena shall be accompanied by the affidavit of a custodian of the records, stating in substance each of the following: (1) The affiant is a duly authorized custodian of the records and has authority to certify records; (2) the copy is a true copy of all the records described in the subpoena; and (3) the records were prepared by the personnel or staff of the business, or persons acting under their control, in the regular course of the business at or about the time of the act, condition or event recorded. If the business has none of the records described in the subpoena, or only part thereof, the affiant shall so state in the affidavit and shall send only those records of which the affiant has custody. When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made. The copy of the records shall be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name and address of the witness and the date of the subpoena are clearly inscribed. If return of the copy is desired, the words “return requested” must be inscribed clearly on the sealed envelope or wrapper. The sealed envelope or wrapper shall be delivered to the clerk of the court. The reasonable costs of copying the records may be demanded of the party causing the subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.
(c) The subpoena shall be accompanied by an affidavit to be used by the records custodian. The subpoena and affidavit shall be in substantially the following form:
Subpoena of Business Records
State of Kansas
County of ___________
(1) You are commanded to produce the records listed below before ____________________ (Officer at Deposition)(Judge of the District Court) at ____________________(Address) in the City of _________, County of ______________, on the _____ day of _____________, 20__, at ____ o’clock __ m., and to testify on behalf of the ___________________ in an action now pending between ________________, plaintiff, and ______________, defendant. Failure to comply with this subpoena may be deemed a contempt of the court.
(2) Records to be produced:
____________________
____________________
____________________
(3) You may make written objection to the production of any or all of the records listed above by serving such written objection upon ___________________(Attorney) at __________________________(Attorney’s Address) (within 14 days after service of this subpoena) (on or before ___________, 20__). If such objection is made, the records need not be produced except upon order of the court.
(4) Instead of appearing at the time and place listed above, it is sufficient compliance with this subpoena if a custodian of the business records delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described above and mails a copy of the affidavit below to _______________________(Requesting Party or Attorney) at___________________________(Address of Party or Attorney) within 14 days after receipt of this subpoena.
(5) The copy of the records shall be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name and address of the witness and the date of this subpoena are clearly inscribed. If return of the copy is desired, the words “return requested” must be inscribed clearly on the sealed envelope or wrapper. The sealed envelope or wrapper shall be delivered to the clerk of the court.
(6) The records described in this subpoena shall be accompanied by the affidavit of a custodian of the records, a form for which is attached to this subpoena.
(7) If the business has none of the records described in this subpoena, or only part thereof, the affidavit shall so state, and the custodian shall send only those records of which the custodian has custody. When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made.
(8) The reasonable costs of copying the records may be demanded of the party causing this subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.
(9) The copy of the records will not be returned unless requested by the witness.
___________________________
Clerk of the District Court
[Seal of the District Court]
Dated __________, 20__.
Affidavit of Custodian of Business Records
State of ___________________
County of __________________
I, _____________, being first duly sworn, on oath, depose and say original records.
(e) Notice of the issuance of a subpoena pursuant to this section where the attendance of the custodian of the business records is not required shall be given to all parties to the action at least 10 days prior to the issuance thereof. A copy of the proposed subpoena shall also be served upon all parties along with such notice. In the event any party objects to the production of the documents sought by such subpoena prior to its issuance, the subpoena shall not be issued until further order of the court in which the action is pending.
(f) Upon receipt of business records the clerk of the court shall so notify the party who caused the subpoena for the business records to be issued. If receipt of the records makes the taking of a deposition unnecessary, the party shall cancel the deposition and shall notify the other parties to the action in writing of the receipt of the records and the cancellation of the deposition. After the copy of the record is filed, a party desiring to inspect or copy it shall give reasonable notice to every other party to the action. The notice shall state the time and place of inspection. Records which are not introduced in evidence or required as part of the record shall be destroyed or returned to the custodian of the records who submitted them if return has been requested.