GUIDE TO CIVIL PROCESS
The “Guide to Civil Process” prepared by our office is intended to fill an information void and to assist lawyers, collection agencies, and others dealing with civil process. It is not intended to be an all-inclusive or exhaustive document on the subject of civil process. Rather, it is designed to address specific and common questions that we receive from time to time that relate to the role of the Gage County Sheriff in the civil process function.
Understanding our specific duties and responsibilities in processing, executing, serving, and returning civil process will assist you in your efforts by helping to avoid misunderstandings and mistakes that often accompany commonly held, yet incorrect assumptions about the role of our office in this function.
The guide contains useful reference information including often-used county telephone numbers, Sheriff's Office telephone numbers, contacts, Sheriff's fees and costs, hours of operation, civil process suggestions, tips, procedures and facts, and answers to the most commonly encountered questions pertaining to civil process.
It is hoped that this guide will become a useful reference and will facilitate your dealings with us. We welcome feedback, suggestions and comments regarding this guide.
Sincerely,
Millard “Gus” Gustafson
Sheriff
Introduction and history
The Civil Process Division is responsible for processing and serving civil and criminal writs. The Division utilizes a computerized writ processing system that allows for the individual routing, tracking, service and return of a high volume of writs with a minimal clerical staff.
Unlike other sheriff's offices across the state that rely on sworn deputy sheriffs to serve civil process, the Gage County Sheriff's Office utilizes an independent civilian, non-sworn process server to serve the majority of the civil process. He does not serve criminal writs.
CIVIL PROCESS INFORMATION
Office Hours of Operation:
Monday through Friday, 8:00 a.m. until 5:00 p.m., not including holidays
Our mailing address:
Gage County Sheriff
Civil Process Division
612 Lincoln St Ste 1 Beatrice, NE 68310-2988
Our telephone number:
402-223-5221
Time required to serve process
Allow at least three working days for service. Our average time of service varies due to unforeseen circumstances, however allowing at least three working days for service gives us a reasonable chance to effect service and is fair to the defendants and witnesses being served.
Praecipes
Include a Praecipe on writs where legally required
Writs received without Praecipes may cause unnecessary delays by forcing us to search the body of the document for service information. Include complete and accurate service information. State Statute 25-502.01 requires an attorney to provide service information on his or her praecipe including an address to effect service. It is not our responsibility to perform research or investigations in order to locate defendants. Since we rely on the completeness and accuracy of service information supplied by you, it is in your best interest to ensure that service information is correct. If you rely on old file information for your Praecipe or if you fail to provide complete and accurate service information, the chances of successful service are reduced.
Defendants with rural route or post office box service addresses
We cannot serve defendants at rural route addresses or post office boxes. If you have a service address or location that is a post office box or rural route address, contact the post office serving that box or address and obtain a numerical street address or accurate directions to the location. It is your responsibility to perform this research and provide us with a location to effect service.
If a defendant is to be served at a place of employment
If you direct us to serve a defendant at a place of employment, it is your responsibility to perform the research necessary to provide us with the defendant's current job site and current working hours.
Specifying residence service as an option
State Statute 25-505.01 provides that an attorney can specify the manner of service on his or her praecipe. By specifying personal service only on a praecipe when the law also allows residence service reduces the options for effecting service. Unless you have a particular requirement for personal service for a writ that can also be legally served by residence service, please be sure to specify on your praecipe that you wish "personal or residence service."
Difficult service or avoiding service defendant procedures
Supplemental defendant information
If you know that a defendant is going to be difficult to serve or has a history of avoiding service, please provide us with as much information as possible. Additional information increases the likelihood of successful service. Helpful information includes:
- Complete defendant personal information including middle initial, date of birth, social security number, last known address, place of employment, etc.
- Physical description including age, height, weight, hair color, glasses, moustache, scars, marks, tattoos, etc.
- Vehicle descriptions, photograph of the defendant, etc.
Alternate (substitute or constructive) service
If you have trouble locating an avoiding or difficult defendant, you have the option of filing a motion for substitute or constructive service under state statute 25-517.02. We adhere to strict service procedures and rigorous documentation that can assist you when filing a motion for alternate service.
Do not ask us to leave a summons or other writ at an avoiding defendant's residence in the hope that he or she will appear. The Gage County Sheriff's Office will only serve process according to the law. If we cannot serve a writ, a return of not found must be made. State statute 25-507.01 requires us to return not found Summonses to the issuing court.
Violent, mentally unstable defendants or those with communicable or infectious diseases
Our process server works in an increasingly dangerous environment. He is not a law enforcement officer and is not armed. Their physical safety is paramount. Please indicate on your Praecipe if a defendant has:
- a history of violence
- a history of mental instability
- a history of alcohol or drug abuse
- a history of weapons offenses
- a communicable or infectious disease
Service fees and billing privileges
Billing for services rendered is a privilege. All fees will be paid in advance unless prior arrangements are made with our civil process office.
Billing attorneys for service fees is a privilege and not a right. State Statute 33-120 allows us to collect our fees in advance before rendering service. Unlike many other sheriff's offices and other branches of government, our office is one of the few agencies that will serve process without advance payment if prior credit approval is established.
Please pay service fees within 30 days of billing statement. If not paid within the 30 days, legal action will be taken to collect. Advanced fees will then be required before any attempts will be made on all future civil process.
Fees
Fee Schedule
In accordance with Nebraska Statute 33-117, the following fee structure for process service is in effect:
- Service fee (per writ) $12.00 per original (if served) plus
- Return fee (per writ) $ 6.00 + mileage (whether served or not)
These fees are not all inclusive for all writs but gives you a general idea of the fee structure regarding civil process. See statute listed above.
Unused advance fees will be refunded. If fees and mileage are over the amount collected, you will be billed for that amount.
Please make checks payable to Gage County Sheriff.
Questions on fees or billing statements
If you have any questions regarding your monthly fee statement or about our fees, please telephone 402-223-5221 Julie Cookus x 217 or Julie Slaven x 212.
Subpoena Duces Tecum
Unless you have specific requirements that a Subpoena Duces Tecum must be served upon a named individual, please specify that service is to be effected upon "the custodian of records". If you specify service upon a named individual instead of custodian of records, service may be delayed or impossible because the named individual is on vacation, sick leave or is otherwise unavailable.
Change of address notification for attorney offices, collection agencies or individuals
Please notify the Gage County Sheriff’s Office at 402-223-5221 if you change addresses so that we have a current billing address and contact number.
Make witness fees payable to the witness
Do not make witness fees payable to the Gage County Sheriff's Office. Unnecessary endorsements, handling and other measures must be taken when witness fees are incorrectly made payable to this office. We are a governmental agency and this oversight results in time consuming and needless accounting headaches and delays.
When combining a Summons and Petition with other papers or attachments for service
Please specify the attachments on the Praecipe so that the clerical staff can determine when all additional papers or attachments have been received and the writs can be combined and routed for service. Failing to do this can result in delays that reduce the chances for successful service.
When combining writs for service that have different due or return dates, service will be attempted until the first applicable due date. For example, if you instruct us to combine a Temporary Restraining Order (TRO) with a Summons for simultaneous service, we will attempt service until the TRO expires. It is your responsibility to track your case file and check for service when the shortest applicable due date approaches. You must then provide us with additional service instructions regarding any remaining active writs.
Do not refer clients to us to check for service or for inquiries related to civil process
Inquiries from clients checking for service or seeking information about our process service responsibilities commonly evolve into requests for legal advice or for comparisons between what the client believes his or her attorney should be doing and what other attorneys do under similar circumstances, etc. The drain on our clerical staff is substantial. It is our policy to deal only with attorneys, collection agencies or individuals representing themselves. We do not provide legal advice or information to plaintiffs or defendants.
Gage County Sheriff jurisdiction
Service addresses must be within Gage County
Communications between attorneys and the office
Communication: Cornerstone of successful process service
Unfortunately, it is no longer possible to give each writ the individual attention that was possible even a few years ago. By communicating with us and fulfilling your obligations via a complete and accurate Praecipe and paying service fees promptly when billed, our relationship will be a positive and productive one.
Returning telephone calls from deputies/process server
Our deputies and process server are not required to perform legal research or conduct investigations to locate defendants. However, in the course of their service attempts they often develop leads on where a defendant may be or have questions on how to proceed with service when all leads and service information have been exhausted. Under these circumstances they commonly contact the plaintiff’s attorney seeking further instructions or assistance. If you receive a message that a deputy or process server has called and is attempting to serve process for you, please return the call as quickly as practical. If additional information is required, two attempts will be made by telephone to contact originating attorney or court. Unsuccessful contact will result with writ being returned.
Defendants entering voluntary appearances
Please notify us when a defendant we are attempting to serve enters a voluntary appearance so that we can cancel our service attempts.
Suggestions and comments
In our efforts to provide professional and efficient civil process service, we continuously seek suggestions and new ideas to assist us in improving the efficiency and effectiveness of our operation.
If you have a suggestion or comment about our operation, please feel free to contact us. Complaints, comments, and suggestions are valuable forms of feedback that enable us to fine-tune our procedures.
If you have a suggestion or comment please telephone the Civil Process Division at 402-223-5221 x 217.
Complaints
The Civil Process Division enjoys a reputation for efficiency, professionalism and integrity. However, the nature of civil process service can sometimes yield misunderstandings and complaints. If you have a complaint, telephone the appropriate number below. All complaints are actively investigated and resolved. If your complaint involves process service and/or a deputy or process server, contact either:
- Sheriff Millard “Gus” Gustafson 402-223-5221 x 210 or Chief Deputy Douglas Klaus 402-223-5221 x 202.
Execution and attachment levy procedures
Goods and chattels first
State statutes 25-1516 and 25-1518 require us to levy upon goods and chattels before levying upon lands and tenements. The law also requires us to make a diligent search for goods and chattels before returning an execution unsatisfied. We cannot legally make a return of unsatisfied if unencumbered assets upon which to levy are found without written authorization from the plaintiff’s attorney. This can be done by email to Gage County Sheriff’s Office903@Gage County Sheriff’s Officene.us See information on executions out of District Court.
Leviable property known to the petitioner or plaintiff attorney
Please notify us if you know of leviable property. The search for goods and chattels is facilitated if known and unencumbered assets are indicated to us. It is important for the plaintiff’s attorney to check for liens and encumbrances on any prospective property before we levy on it. Advanced fees will be collected prior to taking any personal property which will help cover the towing and storage expense.
Partial judgment satisfaction
If you as the plaintiff’s attorney have received monies from a defendant partially satisfying a judgment, please notify us immediately so that we can adjust our collection efforts accordingly.
Mutual agreements satisfying a judgment
If the plaintiff and defendant in an action arrive at a mutual agreement, please notify us immediately so that we can discontinue our efforts.
Writs of assistance, writs of restitution, other move-out writs
Per statute, all occupants of the dwelling or building are evicted forthwith. The process deputy will stand by while the locks are being changed for purposes of keeping the peace. The petitioner will make prior arrangements for a locksmith to meet the deputy at the property where the locks will be changed. Once the property has been returned to the petitioner, the defendant will have to make arrangements with the petitioner to remove other personal belongings.
Order of Sales/Executions Out of District Court
You must include the legal description with the writ. It shall have the full recorded legal description as found at the Register of Deeds Office. No shortened legal descriptions shall be accepted or the writ will be returned indicating same. A situs address or directions must be included since we have to post the property and can be found at the Assessor’s Office.
COMMON QUESTIONS AND ANSWERS
Ex parte custody orders
Question: I have an ex parte custody order involving minor children currently in the custody of a parent or guardian. Will the Gage County Sheriff's Office meet my client and turn custody of the minor children over to him or her?
Answer: No.
Ex parte orders are served upon the defendant like other writs. It is up to the defendant to comply with the order or appear at a show cause hearing to explain why he or she is not complying. The only writs authorizing the Gage County Sheriff's Office to remove minor children from the custody of a parent or guardian are orders for immediate custody or writs of habeas corpus issued by a Gage County District Court.
The circumstances underlying the issuance of ex parte orders granting temporary custody are usually emotionally charged. Because the Gage County Sheriff's Office will not force a parent or guardian to relinquish custody when served with an ex parte custody order, having a petitioner present serves no useful purpose. Our experience indicates that the presence of a petitioner during service only aggravates already strained emotions resulting in increased danger to everyone present.
Other service arrangements for avoiding service defendants
Question: I have a subpoena for a difficult to serve witness. Can the Gage County Sheriff's Office serve the witness after hours, on holidays or weekends?
Answer: Yes.
We do serve after hours, on weekends or on holidays by uniformed personnel and civil process server, if staffing and time allow.
Alternate (substitute or constructive) service
Question: I am having trouble locating and serving a defendant who is actively avoiding service. Your office has been unable to serve him. What can I do?
Answer: State statute 25-517.02 allows you to file a motion for alternate (substitute or constructive) service. If your motion is granted, forward a copy of the order with the writ and we will affect service according to the commands in the order.
Uniformed deputies serving process
Question: Can uniformed deputies assigned to Road Patrol serve my paper after hours?
Answer: Yes.
We do serve after hours, on weekends or on holidays by uniformed personnel and civil process server, if staffing and time allow.
Subpoenas required for process server appearances
Question: I want a process server to appear for a deposition or a hearing regarding contested service. Will I need a subpoena?
Answer: Yes.
The road deputies are out on the road patrolling and taking calls for service. The process server is not based out of the Sheriff’s Office. To prevent frivolous requests for appearances and to afford the same courtesy to the process server/deputies as that afforded to other witnesses, Gage County Sheriff's Office requires that a subpoena be issued at least three working days prior to the hearing or deposition.
Obtaining answers to civil process questions
Question: I have a question regarding civil process procedures. Can the Gage County Sheriff's Office help me?
Answer: Maybe.
The office employs a clerical staff experienced in civil process with numerous years of experience in all aspects of civil process. However, we are not attorneys and we do not give legal advice. Please restrict questions to the office's duties and responsibilities in processing or serving a writ.
Combining writs for simultaneous service
Question: I have a temporary restraining order (TRO) and a summons in a marriage dissolution case. Can they be served together?
Answer: Yes.
However, since the TRO and the summons each have different return or due dates (10 days or a hearing date for the TRO and 20 days from the date of issue for the summons), it is your responsibility to check for service at or near the expiration of the TRO. You can then advise us if you want to continue attempts for service on the summons.
Rush or last minute process service
Question: I have a rush summons that must be served immediately because of a hearing date tomorrow. Can the Gage County Sheriff's Office serve my writ immediately?
Answer: Maybe.
We pride ourselves on delivering the highest quality professional process service. And, we understand that occasional, legitimate emergencies or short notice summons or other process will require rush service. However, the volume of papers handled by the Civil Process staff makes it difficult to accommodate rush requests.
Unfortunately, our experience has been that the majority of rush requests are due to an attorney who has not adequately managed his/her case. Fairness dictates that papers are served in the order they are received. It is unreasonable to expect us to accommodate a request for rush service due to oversight or mismanagement by an attorney. With cases docketed for months in advance, there are few legitimate reasons for requesting rush service. Please allow a minimum of three working days for service.
Defendant information on attachments, executions, etc.
Question: What defendant information must I include for attachments, executions and replevins?
Answer: Include as much descriptive information as possible including first and last name, middle initial, date of birth, current or last known address, social security number, etc. When searching computerized ownership files for property on which to levy, it is possible for defendants with common names to have nearly 1,000 similarities making it virtually impossible to establish ownership. Specific defendant descriptive information is often the only way to positively determine ownership. Including descriptive information as simple as a defendant's middle initial can mean the difference between identifying leviable property and not being able to determine ownership.
Replevin procedures
Question: What procedures are involved when I file for a replevin?
Answer: File the necessary paperwork with the Clerk of the appropriate Court. After we receive the replevin from the Clerk's office, the property will be appraised. You must then post a bond with us for twice the appraised value within 24 hours. If a defendant posts the redelivery bond within 24 hours of the levy and prior to receipt of the plaintiff's undertaking and /or delivery, the property will be returned to the defendant.
Costs and sheriff's fees vary depending upon what is being seized. Towing and storage charges for vehicles, for example, and other costs vary widely depending upon the circumstances. State statute 33-120 allows a sheriff's office to demand advance payment for costs associated with executing a replevin. We will estimate these costs and it is your responsibility to pay these costs prior to execution of the replevin. Failure to pay sheriff's fees and costs in advance will result in the replevin being returned unsatisfied for failure of the attorney, collection agency or individual to pay costs.
