What Happens If a Court Date Is Set & You Never Received a Summons?

By Tom Streissguth
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A summons is a vital part of any lawsuit or criminal case. When a plaintiff files a suit, he must submit a complaint to the proper court and prepare a summons for court issuance. In criminal cases, a prosecutor may request the issuance of an arrest warrant or a summons to a defendant. The summons puts the defendant on notice of the complaint, either civil or criminal, and requires either an answer to the complaint or an appearance at a hearing. If you fail to respond to the summons because you never received it, the court can issue a default judgment, or an arrest warrant in criminal cases.

Summons and Answer

In a civil case, a clerk or judge issues the summons, signing the document and adding the court's official seal. The summons gives you notice that you're being sued. It requires either an answer to the plaintiff or, in a criminal case, an appearance at a certain date, time and place. The deadline for the answer varies among states. In Minnesota civil cases, for example, you have 20 days after a complaint and summons are served on you to submit your answer.

Service of Summons

Someone who is not a party to the case must deliver the summons to you in person. This can be a member of law enforcement, such as a sheriff's deputy, or a private process server. After you receive the summons, the server completes a return of service, or an affidavit of service, indicating the date of service -- and then the plaintiff must file the document with the court. Some states allow plaintiffs to deliver a summons by certified mail, while some states impose certain restrictions. For example, Illinois restricts service by mail for civil lawsuits to small-claims cases. Keep in mind that if the plaintiff failed to properly serve the summons, and a default judgment is issued against you, you can raise objections to the complaint and request that the court dismiss the judgment.

Failure to Appear

If a summons requires you to appear in court and provides the date and time, but you fail to appear, the plaintiff can ask for a default judgment against you -- and if the court complies, the plaintiff in effect wins the case. In a criminal case, failure to appear in response to a summons can result in a court-issued arrest warrant. Courts can also issue a warrant if the summons can't be served, such as in cases where the defendant is either evading service or can't be located. In a civil case, some state laws allow "constructive" service, in which the plaintiff legally serves the summons by simply giving public notice, and filing a sworn statement that personal service could not be carried out. Florida allows constructive service for debt lawsuits, divorce, repossession of property and any case for which state law does not require personal service.

Dismissal

If the plaintiff fails to properly serve a defendant, the defendant may file a motion for an extension of time to file an answer in a civil case, or a motion to postpone or reschedule a court hearing. If the plaintiff fails to prepare a summons, the defendant may also request a dismissal of the case. Further, a civil court may dismiss a case if the summons fails to properly identify the defendant or give his correct address, or in a criminal case, the court may dismiss it if the defendant was charged with the wrong crime. If the court grants a dismissal "with prejudice," the case is closed, permanently. However, typically for failure to have a summons issued, the court will dismiss "without prejudice" and allow the plaintiff to prepare a new or amended summons.

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