Service of Process

Three basic methods are used for service of process: (1) actual, or personal, service, (2) substituted service, and (3) service by publication. Although each method is legally acceptable, PERSONAL SERVICE is preferred because it is the most effective way of providing notice and it is difficult for the defendant to attack its legality.

Personal service means in-hand delivery of the papers to the proper person. Traditionally personal service was the only method of service allowed by law because it was best suited to give the defendant notice of the proceedings.

Substituted service is any method used instead of personal service. Forms of substituted service vary among different jurisdictions, but all are intended to offer a good chance that the defendant actually will find out about the proceedings. If a defendant is not at home, many states permit service by leaving the summons and complaint with any person at the defendant's home who is old enough to understand the responsibility of accepting service. Some states permit service by affixing the summons and complaint to the entrance of the defendant's home or place of business and then mailing a copy of the papers to that individual at his last known address. This method is often called "nail and mail" service. A number of states allow service simply by mailing the papers to the defendant's actual address; registered mail is generally required. States also consider service valid if the defendant's property is attached, or legally seized, within the state and the papers are then mailed to him.

Under the laws of some states, substituted service may be used only after diligent efforts to effect personal service have failed. Some forms of substituted service may have to be tried before others can be used. Other states permit substituted service at any time or after a single attempt to find the defendant and serve the papers personally.

A third method of service is publication of a notice in a newspaper. Publication is also called constructive service because the court construes it to be effective whether the defendant actually reads the notice or not. Generally, service by publication is allowed only by leave of the court, which usually grants permission only when the plaintiff can show that no other method of service can be effected. Usually the legal notice must be published in at least one newspaper of general circulation where the defendant is likely to be found or where the court is located, or in both places. Ordinarily the notice must be published on more than one occasion, such as once a week for three weeks.

In truth, courts realize that defendants rarely read notices published in newspapers, but the effort must be made when the defendant cannot be found and served in any other way. Plaintiffs prefer not to use publication because it is expensive and a court might later find that the defendant could have been served personally.