That docket does not show valid service of process under the laws of my state, which gets back to my point about the rules varying by jurisdiction. (Here in Kansas, if the service by certified mail went unclaimed [as opposed to refused], the plaintiff would have to spring for personal or residential service, having a process server such as the sheriff’s department deliver the papers to the defendant or their address in person.)
It is not impossible that your employees really didn’t receive a summons; less-than-upstanding debt collectors have been known to deliberately fail to obtain valid service and tell the court that they actually did (a practice colloquially known as “sewer service”). Andrew Cuomo, while AG of New York, obtained a felony conviction against the owner of one process serving company who may have falsified a hundred thousand proofs of service, and that is neither the first nor the last such case. Of course, at the point when a garnishment has been obtained, you are correct that you really don’t have a choice; your employee has to take up the matter with the court.
Apart from the fact that Ireland is neither obscure nor inaccessible, I don’t see that this would work very well. At common law the partners are jointly and severally liable for the partnership debts and obligations, so if you have a claim against the partnership you can sue any one or more of the partners. It’s up to the partners that you do sue to join the other partners if they want a contribution from them (which they will).
So, recognizing that a little research is a dangerous thing and that I run the risk of embarrassing myself, I did a little looking and I found a number of pre-1900 state court decisions holding that partnership debts were joint, but not several, and that, as the Supreme Court of Nebraska put it: “The obligation being joint, it denotes but a single indivisible claim; and so all the obligors constitute, as it were, one person owing a single debt, and no one owes any part of it. Hence the necessity of bringing all before the court and no others.” Bowen v. Crow (Neb. 1884). Bowen cites a bunch of Ohio cases, but it looks like Ohio changed its law (by statute) somewhere prior to 1877 to deal with this problem (adopting a statutory approach that New York adopted in 1849). According to the Ohio Supreme Court, the statute was to modify “the common law rule that where a joint contract is the subject of an action the recovery must be against all or neither of defendants”. Hempy v. Ransom (Ohio 1877). See alsoMcGehee v. McCord (La. 1840) (“Where a particular partnership is sued, all the partners must be sued together, as particular partnerships are joint, and not joint and several”); Cox v. Gille Hardware & Iron Co. (Okla. 1899) (partnership debts are joint, but not several); Stewart v. Terwilliger (Mich. 1913) (same); Willis v. Barron (Mo. 1898) (same) but seeCamp v. Grant (Conn. 1851) (debts of partnership in equity are joint and several); McClain v. Badgett (Ark. 1842) (same).
Most of this comes from skimming the headnotes (a bad bad practice), but that’s all the research that I’m going to do for this forum. Still, it seems to me that between 1850 and 1900 (in the United States) there was a split among the states over whether partnership debts were joint and several or just joint. It looks like one of the purpose of the Uniform Partnership Act of 1914 was to impose joint and several liability.
All of which is consistent with the idea that, at early common law (which is sort of the point of my Ireland quip), liability was joint but not several and all the obligors must be joined to the action.
And viewed from 1850s Omaha, a small village in e.g. Ireland may as well have been on the far side of the Moon for all the ease of communication with someone living there. Especially if that partner was rather … fictitious … in the first place.
Not exactly the same, but I recall an article about child support law in California. Apparently, the law was written before DNA proof was available, it said that a good faith service was sufficient. If the alleged father failed to respond, the court could then deem him to have been served and award support; so should he be located later, all back support was owing.
The law also included a provision that the result finding a person liable for parental support could not be contested after 2 years - logical, since the courts did not want to deal with repeated attempts to rescind the original finding over and over.
The article found quite a few instances where the mother, or the welfare authorities on behalf of the mother (since the Welfare Department would collect the amount to reimburse welfare payments) improperly served; where they used old addresses. Several men said they had the correct address on their driver’s license at the time, but the court documents showed attempts to serve to an older address. The implication was the Welfare Department avoided proper service in order to have the father not show up so they could get a default judgement. (Pity the guy whose new girlfriend got mad and tossed the summon in the trash without telling him). A few could even prove they were nowhere near the mother at the alleged time of the conception. However, due to the 2-year rule, the ruling could not be contested even with DNA evidence.
It didn’t matter. Don’t get the summons, ignore the court, you still pay. Even proof the service was beyond incompetent did not negate the ruling.
Two terms that I haven’t seen here yet are “substitute(d) service” and “nail and mail.” The California courts recognize ten forms of service, of which personal service is always the preferred form.
Nail and mail refers primarily to posting papers at a person’s residence and mailing them, and is allowed only in eviction (unlawful detainer) cases, but the term can be used for substitute service where papers are left with someone over 18 at their residence or at their work location, with someone over 18 who appears to be in charge, and also mailed to the target individual in either case. The server writes up a “Declaration of Due Diligence” documenting their failed attempts to serve personally, and files it with the Proof of Service.
My brother died over 7 years ago. I had to have his mail forwarded to me to deal with after death “stuff.” Some of that stuff included collection notices which of course I ignored. A few months ago a process server showed up on my doorstep. Asked for to which I heartily laughed “he died 7 years ago. Want to see the death certificate?” We had a nice chat but I forgot to ask him why skip tracers could not figure out that he died 7 years ago.
I used to be a process server, and the consensus of the thread seems generally accurate. At least under California law, though, I don’t know what the purpose would be of trying to shove the papers into your hands. If the server is satisfied that you are the person he’s looking for, he can just drop them on the ground. Whether you physically accept the papers isn’t relevant to whether it was a proper service.
I am not a lawyer, nor a process server, but in some jurisdictions (Illinois, I believe) the server actually had to place the papers in the servee’s hands for it be considered proper.
Do note that around here, the Buy Here Pay Here used car dealers run a scam, where they sell you a car you cant pay for. Fairly decent down. They then repo the car, and at a secret auction where no one else bids, buys it for a $1. Then they sue you in small claims. The service is delivered to a dumpster.
So they get the down, they get the car, and they get the difference. Big scam.
Because, laws be damned, it wasn’t in their interest to stop chasing a dead guy. As long as they have some hope of (illegally) guilting the surviving family into paying they’ll keep trying.
Just like with spam, it works often enough that it’s profitable to try. And just like with spam, there is no effective enforcement of the laws against the practice.
I was subpoenaed to give a deposition for a lawsuit because I witnessed a car accident with serious injury (totally the not-injured driver’s fault). I had a job where they thought they had absolute and eternal dibs on my time, so I told the lawyer that he’d better serve me if he wanted to be absolutely certain I’d keep the appointment, and serving me at work would be best.
The server walked into my office, looking meek and nervous for someone with that job. I got up and immediately identified myself and shook his hand. He looked like the movie had just gone from black and white to color.
I agree but that would make you think the law would allow you to sue any member of a partnership as representative of the whole and not need to find and drag them all to court (especially in an age when communications and travel were difficult).
It is up to the partner being sued to rope in his/her partners and would suggest that people be somewhat careful when choosing partners.
I had a notion (no idea where now) that all a process server had to do was tap the person with the papers to consider them served (then drop them on the ground). No need for the person to accept the papers.
There are people here far better qualified than me to opine on the history of civil, commercial, and tort law.
But my impression is the law was originally all about being a system to keep the King on top and the peasants = you and me on the bottom. Only slowly and painfully over centuries has the idea of “equal justice for all” begun to be honored, if only mostly in the breech.
A system that in the 1800s was rigged in favor of the landowners and the big merchants would fit right in with that.
It’s not inherently illegal. His debts don’t die with him; they are a first charge on his estate, and any assets he leaves should be applied in the first instance to settling his liabilities; only the residue should be distributed to his legatees or next of kin.
Of course, he may not have left any assets. But how are his creditors to know this? So, even if they learn that he has died, then can perfectly legitimately pursue his estate for what is owed to them.
I would think any assets the person may have had are long-gone.
If the debt was huge (millions of dollars) and the person actually was known to be wealthy and left an estate worth millions of dollars it might be worth chasing those debts seven years later.
Joe Schmo’s $1,200 credit card bill…not seeing it. At that point it can only be to harass people in the hopes they are dumb enough to pay that debt.
Mehh. If the knew or should have known about the liablity but distributed the assets to themselves anyway, they are guilty of fraud. So they might decide to pay the debt not because they are dumb but because (a) they fear there is a legal risk, or (b) they are, or wish to think of themselves as, honest.