Subpoena proceedings

If you have a legal dispute and you can't come to an agreement, it may be necessary to go to court. In civil cases, there are two ways to file a lawsuit: with a subpoena or with a petition. The law states which procedure must be followed for a particular type of case. The subpoena procedure is most common. But how exactly does a subpoena procedure work?

What is a subpoena?

A subpoena is a summons to appear in court. The plaintiff's attorney writes the subpoena. It contains a list of facts followed by a conclusion stating what the plaintiff wants the judge to write in his judgment. The subpoena also states when the defendant must report to court and whether an attorney is required to do so. There are several other formal requirements that a subpoena must meet. Among other things, it must contain a notice of the court fee due and what happens if the defendant fails to appear (this is called: mitre). If those formal requirements are not met, then the subpoena may be null and void. The proceedings are then not pending.

Subpoena served by a bailiff

When the subpoena is ready, it is sent to a bailiff. That bailiff must serve the subpoena on the defendant. The bailiff then visits the defendant to deliver the summons in person. If that fails, the bailiff may also leave the summons in an envelope. The envelope must state that it must be opened immediately.

Lawsuit pending from time of service

The proceedings are formally pending from the time the summons is served. However, the court does not know about the proceedings at that time. Therefore, the summons must be filed with the court. The clerk then enters the case on the ‘roll. That is the court's calendar. On the date the defendant must appear, the court checks to see if an attorney has come forward. If so, he or she may enter a defense. If not, default is granted and the claim is usually assigned in a default judgment.

The claim and its grounds

In addition to the formal requirements already mentioned above, the summons must contain the claim and its grounds. This means that the plaintiff uses the subpoena to make clear to the judge what his claim is and why it should be granted. The subpoena also contains exactly what the plaintiff wants the judge to pronounce. This is, for example, an order that the defendant pay a certain amount of money. Or the declaratory judgment that a parcel of land has become the property of the plaintiff by prescription. Another example is the requirement to order the defendant to (not) do something.

Procedural process in subpoena proceedings

The process of a writ of summons differs. For example, different time limits apply at the subdistrict court than in summary proceedings, or in proceedings on the merits at the district court. However, subpoena proceedings always end in a final judgment. judgment, unless the parties reach a settlement during the proceedings.

The ruling

In subpoena proceedings, the judge issues a judgment. If you disagree with the ruling, you can appeal in appeal. The judgment until overturned on appeal is binding and can sometimes be enforced immediately. This is the case when the enforceable is declared. Thus, subpoena proceedings can have far-reaching consequences. Have you received a subpoena Or do you want to sue someone? Then contact the trial lawyer at Lexys Lawyers.