If you have been sued, you were likely served with a “summons.” A summons is a document that tells you that you’ve been sued and that you must respond to the lawsuit. A summons also explains the consequences of not responding.
Under Oklahoma law, a summons must contain the following:
The court clerk’s signature
The court’s seal
The name of the court
The names of the parties
The name and address of the plaintiff’s attorney (if he has one)
If the plaintiff does not have an attorney, the summons must state the plaintiff’s address
The time when the defendant is required by law to appear and defend (in most civil cases, a plaintiff must respond within twenty days after being served)
A notice that if the defendant does not appear, the court may grant a default judgment against the Defendant for the relief demanded in the petition.
Certain parts of the summons derive from the Constitution. The Fourteenth Amendment says, “nor shall any state deprive any person of life, liberty, or property without due process of law.” Ten years after the Fourteenth Amendment was adopted, the Supreme Court ruled that in order to satisfy the requirements of due process, the state must “give notice to an absent defendant.” The notice must be “reasonably likely to communicate to him information of the proceeding against him, and … in good faith designed to give him such information, and an opportunity to defend.” Pennoyer v. Neff, 95 U.S. 714, 733 (1878).
Because the Supreme Court has interpreted the Constitution to require that a party be given notice, states (and the federal government) require that a party be served with a summons. If you were sued, and you were not served with the summons – or if you were served with a summons and the summons does not comply with the above constitutional and state requirements, then no court may enter a judgment against you. If you were not served with a summons, or if you were served with a defective summons, and a court enters a judgment against you anyway, you may ask the court to set aside the judgment on the grounds that the judgment was entered without due process.
Special requirements for a summons in a divorce case
In a divorce case, a summons must contain an “automatic temporary injunction notice.” This is a notice that says that while the divorce case is going on, both parties are restrained from taking certain actions. These actions that parties may not take during a divorce case include,
Intentionally or knowingly damaging or destroying the parties’ property
Canceling the parties’ insurance policies
Molesting or disturbing the peace of the other party or the children
Hiding or secreting the children from the other party
For a complete list of all the actions that parties are prohibited from taking during a divorce case, click here.
What to do if you are served with a summons
If you are served with a summons, note the deadline for when you need to respond. In most civil cases, you must respond within twenty days after you are served. To respond, you must file a written response with the court clerk, and mail your response to the opposing party or his attorney. In small claims court, there is usually a date when you are required to appear before the judge; however, the date must be at least seven days after you are served. You do not need to file a written response in small claims court.
If you choose to get a lawyer rather than represent yourself, you should contact lawyers as quickly as possible. Many lawyers will not be able to schedule an appointment with you for several days.
Although you should respond promptly, don’t overstress about the deadline. Generally, you can easily get the deadline extended. Call the opposing party or his attorney, and ask them if they will agree to an extension. If they will not, file a motion and ask the judge for an extension.
Even if you file your response a few days late, that might not cause you to have a default judgment entered against you. Judges often view default judgments with disfavor; judges prefer to rule against defendants on the merits of the case, rather than because the defendant didn’t respond fast enough. Generally, the judge won’t enter a default judgment unless the plaintiff asks him to. Even if the plaintiff asks the judge for a default judgment, the judge may be reluctant to grant a default. In one case, the court even stated that it was unprofessional conduct for the plaintiff’s attorney to run to the courthouse and collect a default judgment on the first day possible. See First Interstate Bank of Oklahoma v. Service Stores of America, available here:
If you retain an attorney, your attorney will be able to ask for an extension of time.
In small claims court, you will have to appear on the scheduled date. If you don’t appear, the judge can enter a default judgment against you. But, if you can't be there on the scheduled date, call the opposing party and ask for a continuance. If he won’t agree to a continuance, call the judge’s chambers, explain why you won’t be able to appear on the scheduled date, and ask the judge to set the hearing on a later date. If you have a valid reason for being unable to appear, the judge will probably accommodate you.
If you are served with a summons in a divorce case
If you are served with a summons in a divorce case, make sure you follow the requirements of the automatic temporary injunction. If you don’t, the other side could potentially ask the judge to hold you in contempt. In a divorce case, if both parties sign an agreement not to be by the automatic temporary injunction, then you won’t have to follow those requirements.
Do you still have questions?
A civil case – including the requirements in a summons – can be very confusing. In most cases, you will need a lawyer. (Small claims court is designed to operate without lawyers, and most people don’t need lawyers in small claims court.) If you still have questions about your summons, contact a lawyer. The Persaud Law Office has represented clients in many civil and family law cases, and we have helped many clients deal with the issues in summonses. If you have questions, don’t hesitate to call our office or complete the consultation form.