HOUSE Substitute for SENATE BILL No. 504
An
Act concerning civil procedure for limited actions; amending K.S.A. 58-227,
58-2542,
58-25,102, 60-201, 60-213, 60-265, 60-304, 60-725, 60-2418 and 75-6103
and K.S.A.
1999 Supp. 19-4737, 20-302b, 20-362, 58-2565 and 60-2202 and repealing
the existing
sections; also repealing K.S.A. 61-1601, 61-1603 through 61-1605, 61-1608,
61-1701
through 61-1703, 61-1703a, 61-1704 through 61-1709, 61-1711 through 61-1719,
61-
1721 through 61-1723, 61-1725a, 61-1726, 61-1728, 61-1801 through 61-1803,
61-1805
through 61-1807, 61-1901 through 61-1909, 61-2001 through 61-2012, 61-2101,
61-
2102, 61-2104 through 61-2109, 61-2201 through 61-2204, 61-2301 through
61-2304,
61-2306 through 61-2311, 61-2402 through 61-2405, 61-2502, 61-2503, and
61-2601
through 61-2605, and K.S.A. 1999 Supp. 61-1710, 61-1720, 61-1724, 61-1725,
61-1729,
61-2013, 61-2014, 61-2103, 61-2305, 61-2401 and 61-2501.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. This act shall be known and may be cited as the code
of
civil procedure for limited actions.
New Sec. 2. (a) This act may be used to govern the procedure for
a
civil
lawsuit filed in the district court which:
(1) Seeks judgment for a debt which is not secured by a lien and
arises
out of a contract for the providing of goods, services or money,
without
limitation as to the amount claimed in the lawsuit;
(2) seeks judgment for a debt which is secured by a lien and arises
out
of a contract for the providing of goods, services or money, where the
amount
claimed in the lawsuit, not counting costs, interest and fees, does
not
exceed $25,000; or
(3) seeks judgment where the claim does not arise out of a contract
and
the amount claimed in the lawsuit, not counting costs, interest and
fees,
does not exceed $25,000.
(b) The following types of lawsuits may not be filed under this act:
(1) Actions against any officers of the state, or any subdivisions
thereof,
for misconduct in office, except as authorized by the Kansas tort
claims
act, K.S.A. 75-6101 et seq., and amendments thereto;
(2) actions for specific performance of contracts for real estate;
(3) actions in which title to real estate is sought to be recovered or
in
which an interest in real estate, either legal or equitable, is sought
to
be
established, except that nothing in this paragraph shall be construed
as
limiting the right to bring an action for forcible detainer as provided
in
sections 78 through 85, and amendments thereto;
(4) actions to foreclose real estate mortgages or to establish and fore-
close
liens on real estate as provided in article 11 of chapter 60 of the
Kansas
Statutes Annotated, and amendments thereto;
(5) actions for divorce, separate maintenance or custody of minor
children;
(6) habeas corpus;
(7) receiverships;
(8) change of name;
(9) declaratory judgments;
(10) mandamus and quo warranto;
(11) injunctions;
(12) class actions;
(13) rights of majority; and
(14) any appeal from an order or ruling of an administrative officer
or
body.
New Sec. 3. The supreme court of this state shall adopt rules to
gov-
ern
the electronic filing of court matters and the storage of and access by
the
public to the same, to govern the form of pleadings, other documents
to
be filed and such other matters as is necessary under the code of civil
procedure
for limited actions.
New Sec. 4. Judicial districts in this state may accept for filing
under
this
act lawsuits filed in the same method in which lawsuits are filed prior
to
the adoption of this act, or filed pursuant to an electronic filing pro-
cedure,
or a combination of the two, as long as any such filings comply
with
the rules of the supreme court of this state.
New Sec. 5. Without regard to whether the word "court" or the word
"judge"
is used in any provisions of this act, all trials upon the merits shall
be
conducted in open court and in a regular courtroom within the county
if
reasonably possible. All other acts or proceedings, including the entry
of
a ruling or judgment, may be done or conducted by a judge or judge
pro
tem in chambers, or at such other place within the county as is des-
ignated
by the judge for the conduct of court business, without the at-
tendance
of the clerk or other court officials.
New Sec. 6. The provisions of this act shall be liberally construed
to
secure
the just, speedy and inexpensive determination of every action or
proceeding.
New Sec. 7. The party who files a lawsuit shall be called the
plaintiff
and
the adverse party shall be called the defendant.
New Sec. 8. (a) An action pursuant to the code of civil procedure
for
limited
actions is commenced at the time of:
(1) Filing a petition with the clerk of the district court, if service
of
process
is obtained or the first publication is made for service by publi-
cation,
within 90 days after the petition is filed, except that the court may
extend
that time an additional 30 days upon a showing of good cause by
the
plaintiff; or
(2) service of process or first publication, if service of process or first
publication
is not made within the time specified by provision (1).
(b) If service of process or first publication purports to have been
made
but is later adjudicated to have been invalid due to any irregularity
in
form or procedure or any defect in making service, the action shall
nevertheless
be deemed to have been commenced at the applicable time
under
subsection (a) if valid service is obtained or first publication is made
within
90 days after that adjudication, except that the court may extend
that
time an additional 30 days upon a showing of good cause by the
plaintiff.
(c) An entry of appearance by the defendant shall have the same
effect
as service of process on the defendant.
(d) The limitation of time for commencing lawsuits pursuant to the
code
of civil procedure for limited actions shall be as provided in article
5
of chapter 60 of the Kansas Statutes Annotated, and amendments
thereto,
except where a different limitation is specifically provided by
statute.
New Sec. 9. (a) Pleadings. Only the pleadings set forth in K.S.A.
60-
207,
and amendments thereto, shall be allowed in an action commenced
pursuant
to the code of civil procedure for limited actions, but the only
pleading
required is a petition. Third-party practice in the manner pre-
scribed
by K.S.A. 60-214, and amendments thereto, shall be permitted.
(b) Petitions. A petition shall state the claim or claims which the plain-
tiff
has against the defendant. It shall set forth the current address, phone
number,
fax phone number and electronic mail address for the plaintiff.
If
the plaintiff is not represented by an attorney, the petition shall be
signed
by the plaintiff.
(c) Motions and other papers. An application to the court or judge
for
an order shall be by motion which, unless made during a hearing or
trial,
shall be made in writing, shall state the particular grounds for the
motion,
shall set forth the relief or order sought, and shall contain a notice
of
when the motion is to be heard by the court.
New Sec. 10. (a) A defendant shall either appear, in person or by
counsel,
at the time and date set forth in the summons or file on or before
such
date a written answer. If the defendant appears and disputes the
petition,
the defendant shall file an answer not later than 10 days after
the
appearance date. The defendant shall promptly send a copy of the
answer
after filing to the plaintiff's attorney or the plaintiff, if no attorney.
If
the defendant is not represented by an attorney, the answer shall be
signed
by the defendant.
(b) The answer when filed shall state the following:
(1) What the dispute is;
(2) any affirmative defenses the defendant has to the claim; and
(3) the current address, phone number, fax phone number and elec-
tronic
mail address for the defendant.
(c) If the defendant asserts a counterclaim against the plaintiff in the
answer,
the plaintiff may file a reply disputing the defendant's counter-
claim
not later than 10 days after service of the defendant's answer. The
plaintiff's
reply shall comply with the requirements set forth in subsection
(b).
If the plaintiff does not file a reply, the plaintiff waives the right
to
present
any dispute to the defendant's counterclaim.
(d) Affirmative defenses are those listed in subsection (c) of K.S.A.
60-208,
and amendments thereto.
(e) The date the defendant is required to appear as set forth in the
summons
may be continued by the court upon request of either party in
such
manner as the court shall prescribe.
New Sec. 11. (a) (1) Upon timely application of the plaintiff and
in
the
discretion of the court, a defendant may be required to plead any
counterclaim
which such party has against the plaintiff, if it arises out of
the
transaction or occurrence that is the subject matter of the plaintiff's
claim
and does not require for its adjudication the presence of third par-
ties
of whom the court cannot acquire jurisdiction, except that the de-
fendant
shall not be required to plead any such claim if: (A) At the time
the
action was commenced the claim was the subject of another pending
action;
or (B) the plaintiff brought suit upon such plaintiff's claim by
attachment
or other process by which the court did not acquire jurisdic-
tion
to render a personal judgment on that claim, and the defendant is
not
pleading any other counterclaim.
(2) A defendant shall not be estopped from asserting in a subsequent
action
any claim which such defendant may have against the plaintiff, if
such
defendant is not required to plead such claim pursuant to this sec-
tion.
Except as provided in subsections (a) and (k), the provisions of K.S.A.
60-213,
and amendments thereto, relating to counterclaims and cross-
claims,
shall apply to proceedings pursuant to the code of civil procedure
for
limited actions, subject to the provisions of section 17, and amend-
ments
thereto.
(b) Notwithstanding the provisions of subsection (a), in an action in-
volving
a claim governed by K.S.A. 60-258a, and amendments thereto, a
party
shall state as a counterclaim any claim that party has against any
opposing
party arising out of the transaction or occurrence that is the
subject
matter of the claim governed by K.S.A. 60-258a, and amendments
thereto.
New Sec. 12. The content and form of all pleadings and other papers
filed
shall be set forth by rule of the supreme court of this state.
New Sec. 13. (a) The petition shall be served on the defendant in
accordance
with the provisions of sections 19 through 24, and amend-
ments
thereto.
(b) All pleadings other than the petition, motions which cannot be
heard
ex parte, notices, and orders which are required by their terms to
be
served, shall be served upon the party's attorney of record, if the party
is
represented by an attorney, or upon the party if not represented by an
attorney,
in the following manner:
(1) By delivering a copy;
(2) by mailing a copy by first-class mail, certified mail or registered
mail
to the last known address; or
(3) if no address is known, by leaving a copy with the clerk of the
court.
For the purposes of this subsection, delivering a copy means:
Handing
it to the attorney or to the party; leaving it at the attorney's or
party's
office with the clerk or other person in charge thereof or, if there
is
no one in charge, leaving it in a conspicuous place therein; or, if the
attorney's
or party's office is closed or the person to be served has no
office,
leaving it at the attorney's or party's dwelling house or usual place
of
abode with some person of suitable age and discretion then residing
therein.
Service by mail is complete upon mailing. All such pleadings,
motions,
notices and orders covered by this subsection shall be filed with
the
court either before service or within a reasonable time thereafter.
(c) The filing of pleadings and other papers with the court as required
or
permitted by this act shall be done in accordance with rules of the
supreme
court.
New Sec. 14. The provisions of K.S.A. 60-209, 60-210 and 60-211,
and
amendments thereto, shall apply to pleadings filed under sections 7
through
18, and amendments thereto.
New Sec. 15. The provisions of K.S.A. 60-206, and amendments
thereto,
governing the computation and extension of time, shall govern
actions
pursuant to the code of civil procedure for limited actions, except
where
provisions to the contrary are specifically included in the code.
New Sec. 16. Upon motion of any party, the court shall order that
an
action filed under the code of civil procedure for limited actions, except
an
action filed pursuant to the small claims procedure act, article 27 of
chapter
61 of the Kansas Statutes Annotated, and amendments thereto,
shall
thereafter be governed by the provisions of chapter 60 of the Kansas
Statutes
Annotated, and amendments thereto. The party obtaining an
order
under this section shall pay any additional docket fee required had
the
action been filed under chapter 60 of the Kansas Statutes Annotated,
and
amendments thereto. Upon such order of the court and payment of
any
additional docket fee, the clerk of the district court shall renumber
the
case as a case filed under chapter 60 of the Kansas Statutes Annotated,
and
amendments thereto, in the same manner as required by K.S.A. 60-
2418,
and amendments thereto.
New Sec. 17. (a) Whenever a plaintiff demands judgment beyond
the
scope of actions authorized by the provisions of section 2, and amend-
ments
thereto, the court shall either:
(1) Transfer the action to the chief judge of the judicial district for
assignment
and hearing pursuant to chapter 60 of the Kansas Statutes
Annotated,
and amendments thereto, assessing the increased docket fee
to
the plaintiff; or (2) allow the plaintiff to amend the pleadings and
service
of process to bring the demand for judgment within the scope of
actions
authorized by the provisions of section 2, and amendments
thereto,
assessing the costs accrued to the plaintiff.
(b) If a defendant asserts a counterclaim or cross-claim beyond the
scope
of the code of civil procedure for limited actions, the case shall be
referred
by the chief judge for assignment and hearing pursuant to chap-
ter
60 of the Kansas Statutes Annotated, and amendments thereto, as-
sessing
the increased docket fee to the defendant.
New Sec. 18. The following provisions of article 2 of chapter 60
of
the
Kansas Statutes Annotated, and amendments thereto, are hereby
adopted
by reference and made a part of this act as if fully set forth herein,
insofar
as such provisions are not inconsistent or in conflict with the pro-
visions
of this act:
(a) K.S.A. 60-215, and amendments thereto, relating to amended and
supplemental
pleadings, except that the time for filing amended pleadings
and
for responding thereto shall be 10 instead of 20 days;
(b) K.S.A. 60-217, and amendments thereto, relating to capacity of
parties;
(c) K.S.A. 60-218, and amendments thereto, providing for joinder of
claims
and remedies, K.S.A. 60-219 and 60-220, and amendments
thereto,
providing for joinder of parties, and K.S.A. 60-221, and amend-
ments
thereto, relating to misjoinder of parties and claims;
(d) K.S.A. 60-224, and amendments thereto, relating to intervention,
and
K.S.A. 60-225, and amendments thereto, providing for substitution
of
parties;
(e) K.S.A. 60-234, and amendments thereto, relating to production
of
documents and things for inspection;
(f) K.S.A. 60-241, and amendments thereto, providing for dismissal
of
actions;
(g) K.S.A. 60-244, and amendments thereto, providing for proof of
records;
(h) K.S.A. 60-256, and amendments thereto, relating to summary
judgment;
(i) K.S.A. 60-259 and 60-260, and amendments thereto, concerning
new
trial and relief from judgment or order, respectively;
(j) K.S.A. 60-261 and 60-263, and amendments thereto, relating re-
spectively
to harmless error and disability of a judge; and
(k) K.S.A. 60-264, and amendments thereto, relating to process in
behalf
of and against persons not parties.
New Sec. 19. Upon the filing of the petition pursuant to the code
of
civil
procedure for limited actions, the clerk of the district court shall
issue
a summons for service upon each defendant in accordance with this
act.
Additional summonses may be issued as requested.
New Sec. 20. (a) The summons shall be issued by the clerk, dated
the
day it is issued and contain the information set forth in the rules to
be
adopted by the supreme court of this state. The summons shall state
the
time when the law requires the defendant to appear or file an answer
in
response to the petition, and shall notify such defendant that in case
of
such defendant's failure to appear or file an answer, judgment by de-
fault
will be rendered against such defendant for the relief demanded in
the
petition. The summons shall be in substantially the form set forth in
the
rules to be adopted hereunder by the supreme court.
(b) The time stated in the summons requiring the defendant to ap-
pear
in response to the petition shall be determined by the court. Such
time
shall be not less than 11 nor more than 50 days after the date the
summons
is issued.
New Sec. 21. (a) Methods of service of process within this state,
ex-
cept
service by publication, are described in this section. Service of pro-
cess
outside the state shall be made in substantial compliance with the
applicable
provisions of K.S.A. 60-308, and amendments thereto.
(b) Who serves process. The sheriff of the county in which the action
is
filed shall serve any process by any method authorized by this section,
or
as otherwise provided by law, unless a party, either personally or
through
an attorney, elects to undertake responsibility for service and so
notifies
the clerk.
(c) Service by return receipt delivery.
(1) Service of process by return receipt delivery shall include service
effected
by certified mail, priority mail, commercial courier service, over-
night
delivery service, or other reliable personal delivery service to the
party
addressed, in each instance evidenced by a written or electronic
receipt
showing to whom delivered, date of delivery, address where de-
livered,
and person or entity effecting delivery.
(2) The sheriff, party or party's attorney shall cause a copy of the
process
and petition or other document to be placed in a sealed envelope
addressed
to the person to be served in accordance with section 22, and
amendments
thereto, with postage or other delivery fees prepaid, and the
sealed
envelope placed in the custody of the person or entity effecting
delivery.
(3) Service of process shall be considered obtained under section 8,
and
amendments thereto, upon the delivery of the sealed envelope.
(4) After service and return of the receipt, the sheriff, party, or party's
attorney
shall execute a return on service stating the nature of the process,
to
whom delivered, the date of delivery, the address where delivered, and
the
person or entity effecting delivery. The original return of service shall
be
filed with the clerk, along with a copy of the return receipt evidencing
such
delivery.
(5) If the sealed envelope is returned with an endorsement showing
refusal
to accept delivery, the sheriff, party or the party's attorney may
send
a copy of the process and petition or other document by first-class
mail
addressed to the party to be served, or may elect other methods of
service.
If mailed, service shall be considered obtained three days after
the
mailing by first-class mail, postage prepaid, which shall be evidenced
by
a certificate of service filed with the clerk. If the unopened envelope
sent
first-class mail is returned as undelivered for any reason, the sheriff,
party
or party's attorney shall file an amended certificate of service with
the
clerk indicating nondelivery, and service by such mailing shall not be
considered
obtained. Mere failure to claim return receipt delivery is not
refusal
of service within the meaning of this subsection.
(d) Personal and residence service.
(1) The party may file a written request with the clerk for personal
or
residence service. Personal service shall be made by delivering or of-
fering
to deliver a copy of the process and accompanying documents to
the
person to be served. Residence service shall be made by leaving a
copy
of the process and petition, or other document to be served, at the
dwelling
house or usual place of abode of the person to be served with
some
person of suitable age and discretion residing therein. If service
cannot
be made upon an individual, other than a minor or a disabled
person,
by personal or residence service, service may be made by leaving
a
copy of the process and petition, or other document to be served, at
the
defendant's dwelling house or usual place of abode and mailing a
notice
that such copy has been left at such house or place of abode to the
individual
by first-class mail.
(2) When process is to be served under this subsection, the clerk of
the
court shall deliver the process and sufficient copies of the process and
petition,
or other document to be served, to the sheriff of the county
where
the process is to be served or, if requested, to a person appointed
to
serve process or to the plaintiff's attorney.
(3) Service, levy and execution of all process under this subsection,
including,
but not limited to, writs of execution, orders of attachment,
replevin
orders, orders for delivery, writs of restitution and writs of assis-
tance,
shall be made by a sheriff within the sheriff's county, by the sheriff's
deputy,
by an attorney admitted to the practice of law before the supreme
court
of Kansas or by some person appointed as a process server by a
judge
or clerk of the district court, except that a subpoena may also be
served
by any other person who is not a party and is not less than 18 years
of
age. Process servers shall be appointed freely and may be authorized
either
to serve process in a single case or in cases generally during a fixed
period
of time. A process server or an authorized attorney may make the
service
anywhere in or out of the state and shall be allowed the fees
prescribed
in K.S.A. 28-110, and amendments thereto, for the sheriff and
such
other fees and costs as the court shall allow. All persons authorized
under
this subsection to serve, levy and execute process shall be consid-
ered
an "officer" as used in K.S.A. 60-706 and 60-2401, and amendments
thereto.
(4) In all cases when the person to be served, or an agent authorized
by
the person to accept service of process, refuses to receive copies
thereof,
the offer of the duly authorized process server to deliver copies
thereof,
and the refusal, shall be a sufficient service of the process.
(e) Publication service. Service of process by publication may be
made
pursuant to the provisions of K.S.A. 60-307, and amendments
thereto,
which are not inconsistent or in conflict with this act.
(f) Acknowledgment or appearance. An acknowledgment of service
on
the summons is equivalent to service. The voluntary appearance by a
defendant
is equivalent to service as of the date of appearance.
(g) The person serving process may serve a garnishment process in
any
of the following methods:
(1) First class mail. Process may be sent to a person by first-class mail
by
placing a copy of the process and petition or other document to be
served
in an envelope addressed to the person to be served in accordance
with
section 22, and amendments thereto, at such person's last known
address.
The envelope used for such service shall be addressed to the
person
in accordance with section 22, and amendments thereto, and shall
contain
adequate postage. Such envelope shall be sealed and placed in
the
United States mail. Service by first-class mail shall be complete when
the
envelope is placed in the mail unless returned undelivered. Service
shall
be considered obtained upon the mailing by first-class mail unless
returned
undelivered.
(2) Telefacsimile communication. Process may be sent to a person by
telefacsimile
communication. Service is complete upon receipt of a con-
firmation
generated by the transmitting machine.
(3) Internet electronic mail. Process may be sent to a person by in-
ternet
electronic mail as provided in the rules to be adopted hereunder
by
the supreme court.
New Sec. 22. (a) Service shall be made promptly and, in any event,
in
time to make a timely return of service as required by section 23, and
amendments
thereto.
(b) If the defendant is a nonresident who is employed in this state,
or
if the place of residence of the defendant is unknown, the plaintiff may
direct
that the service of summons or other process shall be made by
directing
an officer, partner, managing or general agent, or the person
having
charge of the office or place of employment at which the defendant
is
employed, to make the defendant available for the purpose of permit-
ting
the summons or other process to be served on the defendant at the
defendant's
place of employment.
(c) As used in this section, "serving" means making service by any of
the
methods described in section 21, and amendments thereto, unless a
specific
method of making service is prescribed in this section. Except
for
service by publication, service of process shall be made as follows:
(1) Service upon an individual other than a minor or disabled person
shall
be made by serving the individual or by serving an agent authorized
by
appointment or by law to receive service of process, but if the agent
is
one designated by statute to receive service, such further notice as the
statute
requires shall be given. Service by certified mail or first-class mail
shall
be addressed to an individual at the individual's dwelling house or
usual
place of abode and to an authorized agent at the agent's usual or
designated
address.
(2) Service upon a minor, disabled person as defined by K.S.A. 59-
3002,
and amendments thereto, foreign or domestic corporations, part-
nerships,
insurance companies or associations shall be made in accord-
ance
with the applicable provisions of K.S.A. 60-304, and amendments
thereto.
(3) Service upon a governmental entity shall be made in accordance
with
the applicable provisions of K.S.A. 60-304, and amendments thereto.
New Sec. 23. Proof of service shall be made as follows:
(a) Personal and residence service. (1) Every officer to whom sum-
mons
or other process shall be delivered for service within or without the
state,
shall make return thereof in writing stating the time, place and
manner
of service of such writ, and shall sign such officer's name to such
return.
(2) If such process is directed to and delivered to a person other than
by
an officer for service, such person shall make affidavit as to the time,
place
and manner of such person's service thereof.
(b) Service by return receipt delivery. Service by return receipt de-
livery
shall be proven in the manner provided by subsection (e) of K.S.A.
60-308
or subsection (c) of section 21, and amendments thereto.
(c) Publication service. Service by publication shall be proven by an
affidavit
showing the dates upon, and the newspaper in which the notice
of
publication was published. A copy of the notice shall be attached to
the
affidavit which shall be filed in the cause. When mailing of copies of
the
publication notice is required in accordance with subsection (e) of
K.S.A.
60-307, and amendments thereto, the proof of such mailing shall
be
by affidavit of the person who mailed such copies and such affidavit
shall
be filed with the clerk of the court in which the action has been
filed.
Any return receipt shall be made a part of the affidavit and filed
therewith.
(d) Time for return. The officer or other person receiving a summons
or
other process in forcible detainer cases shall make return of service
promptly
and, in any event, no later than three days before the date stated
in
the summons for the defendant to either appear or plead to the peti-
tion.
In all other cases return of service shall be made promptly and, in
any
event, no later than five days before the date stated in the summons
for
the defendant to either appear or plead to the petition. If the process
cannot
be served as directed, it shall be returned to the court forthwith
with
a statement of the reason for the failure to serve the same.
(e) Amendment of return. At any time in the judge's discretion and
upon
such terms as the judge deems just, the judge may allow any process,
return
or proof of service thereof to be amended, unless it clearly appears
that
material prejudice would result to the substantial rights of the party
against
whom the process issued.
(f) Garnishment service of process. (1) First class mail. The return
shall
show the nature of the process, the date on which the process was
mailed
and the name and address on the envelope containing the process.
(2) Telefacsimile communication. The return shall show the nature
of
the process, the time and date on which the process was transmitted
by
telefacsimile, the telephone number of the transmitting machine and
the
telephone number of the receiving machine.
(3) Internet electronic mail. The return shall show the nature of the
process,
the time and date on which the process was transmitted by in-
ternet
electronic mail, the internet electronic mail address of the trans-
mitting
person and the internet electronic mail address of the receiving
person.
New Sec. 24. (a) (1) Service of process may be made upon any party
outside
the state. If upon a person domiciled in this state or upon a person
who
has submitted to the jurisdiction of the courts of this state, it shall
have
the force and effect of service of process within this state; otherwise
it
shall have the force and effect of service by publication.
(2) The service of process shall be made in the same manner as serv-
ice
within this state, by any officer authorized to make service of process
in
this state or in the state where the defendant is served. No order of a
court
is required. An affidavit, or any other competent proofs, of the
server
shall be filed stating the time, manner and place of service. The
court
may consider the affidavit, or any other competent proofs, in de-
termining
whether service has been properly made.
(3) The time stated in the summons requiring the defendant to ap-
pear
in response to the petition shall be determined by the court. Such
time
shall be not less than 11 nor more than 50 days after the date the
summons
is issued, except as provided in subsection (a)(3) of K.S.A. 60-
308,
and amendments thereto.
(b) The provisions of subsection (b) of K.S.A. 60-308, and amend-
ments
thereto, shall be used to determine whether a person has submitted
to
the jurisdiction of this state.
(c) Service of process upon any person who is subject to the jurisdic-
tion
of the courts of this state, as provided in subsection (b), may be made
by
serving the process upon the defendant outside this state, as provided
in
subsection (a)(2), with the same force and effect as though process had
been
served within this state, but only causes of action arising from acts
enumerated
in subsection (b) may be asserted against a defendant in an
action
in which jurisdiction over the defendant is based upon this sub-
section.
(d) Nothing contained in this section limits or affects the right to
serve
any process in any other manner provided by law.
New Sec. 25. (a) When an answer has been filed in an action or if
the
defendant appears and disputes the claims in the petition commenced
pursuant
to the provisions of the code of civil procedure for limited ac-
tions,
any party may submit to any other party a written request for that
party
to admit:
(1) The genuineness of any relevant document described in and at-
tached
to the request; or
(2) the truth of any relevant matter of fact set forth in the request.
The
request shall be in a form which will permit the party to whom it is
submitted
to answer the questions on the request form under oath. A
request
for admissions may not contain more than 10 requests unless
permission
of the court is obtained to increase the number.
(b) Each of the matters requested shall be deemed to be admitted
for
purposes of the pending lawsuit, unless within 15 days after the re-
quest
is served, the party to whom the request is directed submits to the
party
propounding the request either:
(1) A sworn statement denying specifically the matters requested; or
(2) written objections on the ground that some or all of the requested
admissions
are privileged or irrelevant or that the request is otherwise
improper
in whole or in part.
(c) If the answering party cannot truthfully admit or deny a request,
the
party shall set forth in detail the reasons why. If the answering party
denies
a request, the denial shall be in good faith and shall fairly address
the
substance of the request. If in good faith the answering party can
deny
only a part of the request or qualify a request, the party shall specify
which
part is admitted and qualify or deny the remaining part. If the
answering
party objects to a request, the party shall notify the court and
the
party propounding the request and schedule a hearing on the objec-
tion
to be held within 10 days after making the objection.
New Sec. 26. If a party to whom a request for admission has been
submitted
denies under oath any matter requested, and the party sub-
mitting
the request later proves the genuineness of any document or the
truth
of any matter of fact denied by the answering party, the party sub-
mitting
the request may ask the court for an order requiring the answering
party
to pay the reasonable expenses incurred in making such proof, in-
cluding
reasonable attorney fees. The court shall enter the order unless
the
court finds that there were good reasons for the denial or that the
admissions
sought were of no substantial importance.
New Sec. 27. (a) Any party may submit to any other party up to 10
interrogatories.
The party receiving the interrogatories shall submit an-
swers
or objections, if any, to the party submitting the same within 15
days
after the interrogatories are submitted to the receiving party. On
motion,
the court may allow a longer time to answer or may permit a
greater
number of interrogatories to be submitted.
(b) The provisions of K.S.A. 60-233, and amendments thereto, shall
be
applicable to interrogatories pursuant to this section, except that the
provisions
of this section relating to the time when interrogatories are to
be
answered shall be applicable. The general discovery provisions of sub-
sections
(b), (c) and (e) of K.S.A. 60-226, and amendments thereto, and
the
sanction provisions of K.S.A. 60-237, and amendments thereto, as
such
sections relate to interrogatories, shall be applicable to interroga-
tories
pursuant to this section.
New Sec. 28. Subpoenas may be issued by the clerk of the district
court
under the seal of such court or by the judge to compel the attend-
ance
of witnesses or for the production of documentary evidence in the
manner
provided in K.S.A. 60-245, and K.S.A. 60-245a, and amendments
thereto.
Subpoenas shall be served in accordance with sections 19 through
24,
and amendments thereto, and shall be accompanied by the fees for
one
day's attendance and the mileage allowed by law.
New Sec. 29. (a) Any party to an action pursuant to the code of civil
procedure
for limited actions may take the testimony of any person, in-
cluding
a party, either within or without the state, by deposition upon
oral
examination or written questions but only for use as evidence in the
action.
Unless the court orders otherwise, the parties may by written
stipulation
provide that depositions may be taken before any person, at
any
time or place, upon any notice, and in any manner and when so taken
may
be used like other depositions. The taking of such depositions shall
be
governed by the provisions of K.S.A. 60-228, subsections (b) through
(h)
of K.S.A. 60-230, K.S.A. 60-231 and subsection (d) of K.S.A. 60-232,
and
amendments thereto, except that any party desiring to take a depo-
sition
shall first file with the court, and serve on all other parties to the
action,
a motion that the taking of such deposition be allowed due to the
existence
of at least one of the conditions prescribed in subsection (b) for
the
use of depositions as evidence. Within five days after any such motion
has
been made, any other party to the action may file an objection to such
motion,
and in such event, the court shall hold a hearing within five days
thereof
to determine the issue. No deposition shall be taken unless and
until
the court shall have granted the motion requesting permission there-
for.
(b) At the trial, or upon the hearing of a motion or an interlocutory
proceeding,
any part or all of a deposition of a witness, whether or not a
party,
so far as it is admissible under the rules of evidence, may be used
for
any purpose against any party who was present or represented at the
taking
of the deposition, or who had due notice thereof, if the court finds
that:
(1) The witness is dead;
(2) the witness is outside of the county of the place of trial or hearing,
unless
it appears that the absence of the witness was procured by the
party
offering the deposition;
(3) the witness is unable to attend or testify because of age, sickness,
infirmity
or imprisonment;
(4) the party offering the deposition has been unable to procure the
attendance
of the witness by subpoena; or
(5) upon application and notice, that such exceptional circumstances
exist
as to make it desirable, in the interest of justice and with due regard
to
the importance of presenting the testimony of witnesses orally in open
court,
to allow the deposition to be used.
(c) In addition to the uses of depositions enumerated in subsection
(b),
the court on motion may permit the use of depositions as provided
in
subsections (b)(1), (2) and (4) of K.S.A. 60-232, and amendments
thereto,
in the interest of justice and on such terms and conditions as will
fairly
protect the parties.
New Sec. 30. Production of documents and things for inspection
shall
be allowed in accordance with K.S.A. 60-234, and amendments
thereto.
New Sec. 31. (a) If the defendant appears on the date specified in
the
summons and disputes the petition, or on or before such date files
an
answer, the court may set the case for a pretrial hearing. Such hearing
shall
be held at least 10 days after the date of the defendant's appearance.
All
parties shall be notified of the date, time and place for the pretrial
hearing.
(b) After a case has been set for pretrial, each of the parties shall
submit
to the other party before the date scheduled for the pretrial hear-
ing,
copies of all documents which support the petition or answer and an
identification
of all witnesses who will testify at trial to support the same.
(c) If the defendant fails to appear at the pretrial hearing, the court
may
enter default judgment against the defendant for the relief de-
manded
in the petition without further notice. If the plaintiff fails to
appear
at the pretrial hearing, the court may dismiss the lawsuit upon
such
terms and conditions as the court deems proper.
(d) If both parties appear at the pretrial hearing, the court shall con-
duct
a conference with the parties to clarify the issues for trial and explore
the
possibilities of settlement. If the defendant does not have a legal
defense
to the petition, the court may enter judgment against the de-
fendant
for the relief demanded in the petition or for such other relief
that
the court believes is fair and just. If the plaintiff has not stated a
claim
upon which relief can be granted, the court may dismiss the peti-
tion.
New Sec. 32. (a) If a case is not settled or otherwise disposed of
at
the
pretrial hearing, the case shall be set for trial by the court.
(b) All lawsuits filed under this act shall be tried by the court, unless
a
trial by jury is demanded by one of the parties. Demand for jury trial
shall
be made on or before the date of the pretrial conference.
(c) A lawsuit tried by jury pursuant to the code of civil procedure for
limited
actions shall be tried to a jury composed of six persons having the
same
qualifications of jurors as other jurors in district court, unless the
parties
agree on a lesser number. The court shall summon not less than
12
prospective jurors from the source and in the manner provided for
the
summoning of petit jurors in the district court. When there is more
than
one plaintiff or more than one defendant in such action, the court
shall
summon three additional prospective jurors for each such additional
plaintiff
or defendant. Each juror shall be paid as specified in K.S.A. 43-
171,
and amendments thereto, for each day of attendance and shall re-
ceive
mileage at the rate prescribed in K.S.A. 75-3203, and amendments
thereto.
Such jury fees shall be paid by the county. The provisions of
K.S.A.
60-247, subsections (b) through (h) of K.S.A. 60-248, K.S.A. 60-
250
and 60-251, and amendments thereto, shall be applicable to actions
pursuant
to the code of civil procedure for limited actions insofar as they
are
not inconsistent with the provisions of this act.
(d) In all trials pursuant to the code of civil procedure for limited
actions,
the testimony of witnesses shall be taken orally in open court,
unless
otherwise provided by this act. All matters relating to witnesses
and
the admission of evidence shall be governed by article 4 of chapter
60
of the Kansas Statutes Annotated, and amendments thereto.
New Sec. 33. (a) The court may enter a default judgment in the
following
situations:
(1) If a defendant fails to either appear or file a written answer on or
before
the time specified in the summons, judgment may be entered
against
the defendant upon proof of service and at such time as the plain-
tiff
requests same, without further notice to the defendant.
(2) If a defendant fails to appear at the time set for a pretrial or trial
hereunder,
judgment may be entered against the defendant at the request
of
the plaintiff without further notice to the defendant.
(3) If the defendant has filed a counterclaim against the plaintiff and
the
plaintiff fails to appear at the time set for a pretrial or trial hereunder,
judgment
may be entered against the plaintiff at the request of the de-
fendant
without further notice to the plaintiff.
(b) A default judgment shall not be different in kind from or exceed
the
amount of the relief sought in the demand for judgment.
(c) If a defendant seeks to set aside a default judgment for failure to
appear
at the time specified in the summons, the defendant shall file a
motion
not more than 10 days from the date of such judgment in a lawsuit
where
the defendant was personally served with summons within the
state,
or not more than 45 days where service of summons was by other
than
personal service within the state. If any party seeks to set aside any
other
default judgment, that party shall file a motion not more than 10
days
from the date of such judgment. Any motion to set aside a default
judgment,
except for the time limits set forth above, shall be in accord-
ance
with the applicable provisions of subsection (b) of K.S.A. 60-260,
and
amendments thereto.
(d) In cases where no service is had, for good cause shown, the court
may
set aside a default judgment pursuant to the applicable provisions of
subsection
(b) of K.S.A. 60-260, and amendments thereto.
New Sec. 34. (a) A judgment may be entered by master or other
journal
entry or judgment form approved by a judge. The judgment shall
be
effective from the date the journal entry or judgment form is filed
with
the clerk of the court. The form of the journal entry or judgment
form
shall be set forth in the rules of the supreme court of this state.
(b) One or more cases may be shown on a journal entry or judgment
form
as set forth in the rules of the supreme court of this state.
(c) When more than one claim for relief is presented in a lawsuit, the
court
may direct the entry of a final judgment upon one or more but less
than
all of the claims upon such terms and conditions as set forth in the
judgment
of the court.
(d) Except as to a party against whom a judgment is entered by de-
fault,
every final judgment shall grant the relief to which the party in
whose
favor it is rendered is entitled, regardless of whether the party has
demanded
such relief in such party's pleadings. Upon entry of such judg-
ment,
the party in whose favor judgment is entered shall be deemed to
have
waived such party's right to recover any amount due in excess of
such
judgment, and such party may not recover in a subsequent lawsuit
any
amount in excess of such judgment.
(e) Whenever a party has commenced postjudgment proceedings for
the
enforcement of a judgment, and such judgment is subsequently set
aside,
reversed on appeal or otherwise nullified, such party shall not be
liable
for damages as a result of such postjudgment proceedings, unless
it
can be proven that the judgment upon which such proceedings were
based
was fraudulently obtained.
New Sec. 35. The provisions of K.S.A. 16-201, 16-204 and 16-205,
and
amendments thereto, shall apply to judgments entered under the
code
of civil procedure for limited actions.
New Sec. 36. The provisions of K.S.A. 60-252, 60-259 and 60-260,
and
amendments thereto, shall apply to judgments entered under the
code
of civil procedure for limited actions where such provisions are not
inconsistent
with other provisions of the code.
New Sec. 37. Actions for the recovery of a fine, forfeiture or penalty,
other
than against public utilities or common carriers, must be brought
in
the county in which the cause arose, except if the act was committed
on
a road or river which forms the boundary of two or more counties the
action
may be brought in any one of the bordering counties opposite the
place
where the act was committed.
New Sec. 38. An action against a resident of this state, other than
an
action
for which venue is otherwise specifically prescribed by law, may
be
brought in the county in which:
(a) The defendant resides;
(b) the plaintiff resides if the defendant is served therein;
(c) the cause of action arose;
(d) the defendant has a place of business or of employment if the
defendant
is served therein;
(e) the estate of a deceased person is being probated if such deceased
person
was jointly liable with the defendant and a demand to enforce
such
liability has been duly exhibited in the probate proceedings of such
decedent's
estate; or
(f) there is located tangible personal property which is the subject of
an
action for the possession thereof if immediate possession is sought in
accordance
with section 73, and amendments thereto, at the time of the
filing
of the action.
New Sec. 39. An action against a domestic corporation, or against
a
foreign
corporation which is qualified to do business in this state, other
than
an action for which venue is otherwise specifically prescribed by law,
may
be brought in the county in which:
(a) Its registered office is located;
(b) the cause of action arose;
(c) the defendant is transacting business at the time of the filing of
the
petition; or
(d) there is located tangible personal property which is the subject of
an
action for the possession thereof if immediate possession is sought in
accordance
with section 73, and amendments thereto, at the time of the
filing
of the action.
New Sec. 40. An action against a nonresident of this state, or against
a
corporation which is not qualified to do business in this state, other
than
an
action for which venue is otherwise specifically prescribed by law, may
be
brought in the county in which:
(a) The plaintiff resides, or if the plaintiff is a corporation, in the
county
of its registered office or in which it maintains a place of business;
(b) the defendant is served;
(c) the cause of action arose;
(d) the defendant is transacting business at the time of the filing of
the
petition;
(e) there is property of the defendant, or debts owing to the defend-
ant;
or
(f) there is located tangible personal property which is the subject of
an
action for the possession thereof if immediate possession is sought in
accordance
with section 73, and amendments thereto, at the time of the
filing
of the action.
New Sec. 41. Any action brought against a public utility, common
carrier
or transportation system for any liability or penalty or forfeiture,
may
be brought in any county into or through which such public utility,
common
carrier or transportation system operates regularly.
New Sec. 42. If there are several plaintiffs properly joined and
venue
is
determined by the residence of one of them, it shall be necessary that
such
plaintiff's claim is a substantial part of the action. If there are several
defendants
properly joined, venue of the action may be determined at
the
election of the plaintiff as to any one of the defendants against whom
a
substantial claim exists. If, before trial of an action on the merits is
commenced,
a party with reference to whom venue was determined
ceases
to be a party and venue would no longer be proper as to the
remaining
parties, on the application of any remaining party promptly
made,
the cause shall be transferred to a court of a county of proper
jurisdiction
and venue. If there is more than one such county, the transfer
shall
be to a county selected by the plaintiff.
New Sec. 43. In all cases pursuant to the provisions of the code
of
civil
procedure for limited actions in which it shall be made to appear
that
a fair and impartial trial cannot be had in the county where the suit
is
pending, for reasons other than the disqualification of the judge, the
court,
upon application of either party, may change the place of trial to
the
district court of some county where the objection does not exist.
New Sec. 44. Objection to the venue of an action shall not be allowed
except
on timely motion made and for grounds established before trial of
the
action is commenced on the merits.
New Sec. 45. If an action is commenced in good faith and a subse-
quent
timely objection to the venue is sustained, or if before trial on the
merit
commences, it is found that no cause of action exists in favor of or
against
a party upon whom venue was dependent, the action shall be
transferred
to a court of proper jurisdiction of any county of proper venue.
If
there is more than one such county, the transfer shall be to the court
of
a county selected by the plaintiff. In accordance with section 95, and
amendments
thereto, the receiving district court shall require the pay-
ment
of an appropriate docket fee from the movant.
New Sec. 46. The provisions of article 7 of chapter 60 of the Kansas
Statutes
Annotated, and amendments thereto, relating to attachment shall
govern
attachment proceedings for actions pursuant to the code of civil
procedure
for limited actions, except the provisions of K.S.A. 60-711, and
amendments
thereto, relating to the appointment of a receiver, and the
provisions
of article 7 of chapter 60 of the Kansas Statutes Annotated
relating
to the attachment of real property, shall not be applicable in
lawsuits
filed under the code of civil procedure for limited actions.
New Sec. 47. Garnishment is a procedure whereby the wages,
money
or intangible property of a person can be seized or attached pur-
suant
to an order of garnishment issued by the court under the conditions
set
forth in the order.
New Sec. 48. An order of garnishment before judgment may be ob-
tained
only upon order of a judge of the district court pursuant to the
procedure
to obtain an order of attachment. No order of garnishment
may
be obtained before judgment where the property sought to be at-
tached
is wages earned by the person being garnished.
New Sec. 49. (a) As an aid to the collection of a judgment, an order
of
garnishment may be obtained at any time after 10 days following judg-
ment.
There is no requirement that an execution first be issued and re-
turned
unsatisfied.
(b) The party requesting a garnishment shall file a request in an in-
dividual
case or by a master request covering more than one case asking
the
court to issue an order of garnishment. The request shall designate
whether
the order of garnishment is to be issued to attach earnings or to
attach
other property of the judgment debtor. If such party seeks to attach
earnings
of the judgment debtor to enforce:
(1) An order of any court for the support of any person;
(2) an order of any court of bankruptcy under chapter 13 of the
United
States bankruptcy code; or
(3) a debt due for any state or federal tax, the direction of the party
shall
so indicate.
No bond is required for an order of garnishment issued after judgment.
New Sec. 50. This section shall apply if the garnishment is to attach
intangible
property other than earnings of the judgment debtor.
(a) The order of garnishment shall be substantially in compliance with
the
forms set forth in the rules of the supreme court of this state.
(b) The order of garnishment and the appropriate form for the gar-
nishee's
answer shall be served on the garnishee in the same manner as
process
is to be served pursuant to sections 19 through 24, and amend-
ments
thereto, except that the garnishee may be served by any means
provided
under sections 19 through 24, and amendments thereto, at the
garnishee's
business or office location and this shall be considered proper
service.
Two copies of the answer form shall be served if the garnishment
order
is not served electronically. If the order is served prior to a judg-
ment,
the order shall also be served on the judgment debtor, if the judg-
ment
debtor can be found, except that the order shall not be served on
the
judgment debtor until after service has been made on the garnishee.
Failure
to serve the judgment debtor shall not relieve the garnishee from
liability
under the order.
(c) The order of garnishment shall have the effect of attaching:
(1) All intangible property, funds, credits or other indebtedness be-
longing
to or owing the judgment debtor, other than earnings, which is
in
the possession or under the control of the garnishee, and all such
credits
and indebtedness due from the garnishee to the judgment debtor
at
the time of service of the order; and
(2) all such personal property coming into the possession or control
of
the garnishee and belonging to the judgment debtor, and all such
credits
and indebtedness becoming due to the judgment debtor between
the
time the order is served on the garnishee and the time the garnishee
makes
the answer of the garnishee. Where the garnishee is an executor
or
administrator of an estate in which the judgment debtor is or may
become
a legatee or distributee thereof, the order of garnishment shall
have
the effect of attaching and creating a first and prior lien upon any
property
or funds of such estate to which the judgment debtor is entitled
upon
distribution of the estate, and such garnishee shall be prohibited
from
paying over to the judgment debtor any of such property or funds
until
so ordered by the court from which the order of garnishment was
issued.
(d) The garnishee, without prior agreement, may withhold and retain
to
defray the garnishee's costs, an administrative fee of $10 for each order
of
garnishment that attaches funds, credits or indebtedness. Such admin-
istrative
fee shall be in addition to the amount required to be withheld
under
the order for garnishment, except that if the amount required to
be
withheld under the order for garnishment is greater than the amount
of
the funds, credits or indebtedness held by the garnishee, the fee shall
be
deducted from the amount withheld.
New Sec. 51. (a) The written direction of a party seeking an order
of
garnishment attaching funds, credits or indebtedness held by a bank,
savings
and loan association, credit union or finance company shall state
the
amount to be withheld, which shall be 110% of the amount of the
judgment
creditor's claim, in the case of prejudgment garnishment, or
110%
of the amount of the current balance due under the judgment, in
the
case of postjudgment garnishment. The garnishee, without prior
agreement,
may withhold and retain to defray the garnishee's costs, an
administrative
fee of $10 for each order of garnishment that attaches
funds,
credits or indebtedness. Such administrative fee shall be in addi-
tion
to the amount required to be withheld under the order for garnish-
ment,
except that if the amount required to be withheld under the order
for
garnishment is greater than the amount of the funds, credits or in-
debtedness
held by a bank, savings and loan association, credit union or
finance
company, the fee shall be deducted from the amount withheld.
(b) All orders of garnishment issued in this state for the purpose of
attaching
funds, credits or indebtedness held by a bank, savings and loan
association,
credit union or finance company shall include the judgment
debtor's
address and tax identification number, if known, and shall specify
the
amount of funds, credits or indebtedness to be withheld by the gar-
nishee,
which shall be 110% of the amount of the judgment creditor's
claim
or 110% of the amount of the current balance due under the judg-
ment,
as stated in the written direction of the party seeking the order.
(c) The forms provided by law for an order of garnishment attaching
funds,
credits or indebtedness held by a bank, savings and loan associa-
tion,
credit union or finance company shall include the following state-
ment:
"If you hold any funds, credits or indebtedness belonging to or owing
the
judgment debtor, the amount to be withheld by you pursuant to this
order
of garnishment is not to exceed $ _______________________."
(amount stated in direction)
(d) (1) The forms provided by law for the answer to an order of
garnishment
attaching funds, credits or indebtedness held by a bank, sav-
ings
and loan association, credit union or finance company shall include
the
following statement:
"The amount of the funds, credits or indebtedness belong
ing
to or owing the judgment debtor which I shall hold shall not exceed
$
__________________."
(amount stated in order)
(2) The answer shall further include information that such account is
owned
in joint tenancy with one or more individuals who are not subject
to
the garnishment, if applicable.
(e) If an order of garnishment attaches funds, credits or indebtedness
held
by a bank, savings and loan association, credit union or finance com-
pany
and the garnishee holds funds or credits or is indebted to the judg-
ment
debtor in two or more accounts, the garnishee may withhold pay-
ment
of the amount attached from any one or more of such accounts.
(f) If an order of garnishment attaches funds, credits or indebtedness
held
by a bank, savings and loan association, credit union or finance com-
pany
and the garnishee holds funds or credits or is indebted to the judg-
ment
debtor in an account which judgment debtor owns in joint tenancy
with
one or more individuals who are not subject to the garnishment, the
garnishee
shall withhold the entire amount sought by the garnishment.
Neither
the garnishor nor the garnishee shall be liable to the joint owners
if
the ownership of the funds is later proven not to be the judgment
debtor's.
(g) No party shall seek an order of garnishment attaching funds, cred-
its
or indebtedness held by a bank, savings and loan association, savings
bank,
credit union or finance company except on good faith belief of the
party
seeking garnishment that the party to be served with the garnish-
ment
order has, or will have, assets of the judgment debtor. Except as
provided
further, not more than two garnishments shall be issued by a
party
seeking an order of garnishment applicable to the same claim or
claims
and against the same judgment debtor in any 30-day period. A
judge
may order an exception to this subsection in any case in which the
party
seeking the garnishment shall in person or by attorney: (1) Certify
that
the garnishment is not for the purpose of harassment of the debtor,
and
(2) state facts demonstrating to the satisfaction of the judge that there
is
reason to believe that the garnishee has property or credits of the debtor
which
are not exempt from execution.
New Sec. 52. This section shall apply if the garnishment is to attach
earnings
of the judgment debtor.
(a) The order of garnishment shall be substantially in compliance with
the
forms set forth in the rules of the supreme court of this state.
(b) The order of garnishment and the appropriate form for the gar-
nishee's
answer shall be served on the garnishee in the same manner as
process
is to be served pursuant to sections 19 through 24, and amend-
ments
thereto, except that the garnishee may be served by any means
provided
under sections 19 through 24, and amendments thereto, at the
garnishee's
business or office location and this shall be considered proper
service.
Two copies of the answer form shall be served if the garnishment
order
is not served electronically. If the party having requested the gar-
nishment
is notified by the garnishee that the judgment debtor has never
been
employed by the garnishee or the judgment debtor's employment
has
been terminated, the party seeking the garnishment shall forthwith
file
a release with the clerk of the court of such garnishment.
(c) The order of garnishment shall have the effect of attaching the
nonexempt
portion of the judgment debtor's earnings for all pay periods
which
end while the order is in effect. The order shall remain in effect
until
either of the following occur, whichever is sooner: (1) The judgment
is
paid; or (2) the garnishment is released. The party for whom the gar-
nishment
is issued shall file a release with the clerk of the court upon
satisfaction
of the judgment and provide a copy thereof to the defendant
and
garnishee. Nonexempt earnings are earnings which are not exempt
from
wage garnishment pursuant to K.S.A. 60-2310, and amendments
thereto.
Computation of the nonexempt portion of the judgment debtor's
wages
for the pay period or periods covered by the order shall be made
in
accordance with the directions accompanying the garnishee's answer
form,
and a written explanation of the garnishee's computations shall be
furnished
to the judgment debtor with each paycheck from which earn-
ings
are withheld pursuant to the order of garnishment. The order of
garnishment
shall also constitute an order of the court directing the gar-
nishee
to pay to the judgment creditor all earnings which are to be with-
held
by the garnishee under the order of garnishment as more particularly
provided
in the answer of the garnishee.
(d) From income due the judgment debtor, the garnishee may with-
hold
and retain to defray the garnishee's costs, an administrative fee of
$10
for each pay period for which income is withheld, not to exceed $20
for
each 30 day period for which income is withheld, whichever is less.
Such
administrative fee shall be in addition to the amount required to be
withheld
under the order for garnishment. If the addition of this fee
causes
the total amount withheld to exceed the restrictions imposed by
subsection
(b) of K.S.A. 60-2310, and amendments thereto, the fee shall
be
deducted from the amount withheld.
(e) For any continuing garnishment, the party having requested the
garnishment
shall maintain an accounting and record of the judgment
reflecting
thereon all garnishment proceeds received and applied, all in-
terest
accrued thereon, and any and all credits applied in satisfaction
thereof,
and the remaining unsatisfied balance of such judgment. The
party
requesting the garnishment shall produce a copy of such accounting
and
record upon request of the court.
New Sec. 53. (a) Immediately following the time the order of gar-
nishment
is served on the garnishee, the party seeking the garnishment
shall
send a notice to the judgment debtor in any reasonable manner,
notifying
the judgment debtor:
(1) That a garnishment order has been issued against the judgment
debtor
and the effect of such order;
(2) of the judgment debtor's right to assert any claim of exemption
allowed
under the law with respect to a garnishment against property
other
than earnings or of the judgment debtor's right to object to the
calculation
of exempt and nonexempt earnings with respect to a garnish-
ment
against the earnings of the debtor; and
(3) of the judgment debtor's right to a hearing on such claim or ob-
jection.
The notice shall be substantially in compliance with the form set
forth
in the rules of the supreme court of this state, and shall contain a
description
of the exemptions that are applicable to garnishments and the
procedure
by which the judgment debtor can assert any claim of exemp-
tion.
A copy of the notice form shall be served on the garnishee with the
order
of garnishment.
(b) If the judgment debtor requests a hearing to assert any claim of
exemption,
the request shall be filed no later than 10 days following the
date
the notice is served on the judgment debtor. If a hearing is re-
quested,
the hearing shall be held by the court no sooner than five days
nor
later than 10 days after the request is filed. At the time the request
for
hearing is filed, the judgment debtor shall obtain from the clerk or
court
the date and time for the hearing which shall be noted on the
request
form. Immediately after the request for hearing is filed, the judg-
ment
debtor shall hand-deliver to the party seeking the garnishment or
such
party's attorney, if the party is represented by an attorney, or mail
to
the party seeking the garnishment or such party's attorney, if the party
is
represented by an attorney, by first-class mail at the party seeking the
garnishment
or such party's attorney's last known address, a copy of the
request
for hearing.
(c) If a hearing is held, the judgment debtor shall have the burden
of
proof to show that some or all of the property subject to the garnish-
ment
is exempt, and the court shall enter an order determining the ex-
emption
and such other order or orders as is appropriate.
New Sec. 54. This section shall apply if the garnishment is to attach
intangible
property other than earnings of the judgment debtor.
(a) The answer of the garnishee shall be substantially in compliance
with
the forms set forth in the rules of the supreme court of this state.
(b) Within 10 days after service upon a garnishee of an order of gar-
nishment
the garnishee shall complete the answer in accordance with the
instructions
accompanying the answer form stating the facts with respect
to
the demands of the order and file the completed answer with the clerk
of
the court. The clerk shall cause a copy of the answer to be mailed
promptly
to the judgment creditor and judgment debtor at the addresses
listed
on the answer form. The answer shall be supported by unsworn
declaration
in the manner set forth on the answer form.
New Sec. 55. This section shall apply if the garnishment is to attach
earnings
of the judgment debtor.
(a) The answer of the garnishee shall be substantially in compliance
with
the forms set forth in the rules of the supreme court of this state.
(b) Within 15 days following the end of each month, the garnishee
shall
complete the answer in accordance with the instructions accompa-
nying
the answer form for all pay periods ending during the month and
send
the completed answer to each judgment creditor and judgment
debtor
at the addresses listed on the answer form. The garnishee shall
designate
on the answer in the space provided on the answer form the
name
and case number for each judgment creditor who has a garnishment
order
in effect for the same debtor at the end of each month and the
amount
that is due each judgment creditor under the garnishment in
accordance
with the instructions accompanying the answer form. Only
one
answer needs to be completed for each judgment debtor by the gar-
nishee
and the garnishee may duplicate the completed answer in any
manner
the garnishee desires for distribution to each judgment creditor
and
judgment debtor. The answer shall be supported by unsworn dec-
laration
in the manner set forth on the answer form.
(c) If there are other liens against the judgment debtor's earnings
which
by law have priority over garnishments, the garnishee shall so in-
dicate
on the answer. In such event, the garnishment shall remain in
effect
but no earnings of the debtor shall be withheld under the garnish-
ment
order unless and until all of the other liens having priority are re-
leased
or satisfied or the earnings being withheld under all of such liens
are
less than the amount which is exempt under K.S.A. 60-2310, and
amendments
thereto.
New Sec. 56. (a) No later than 10 days after the garnishee makes
the
answer
and the clerk or the garnishee sends it to the judgment creditor
and
judgment debtor, the judgment creditor or judgment debtor, or both,
may
file a reply disputing any statement in the answer of the garnishee.
A
copy of the reply shall be sent by the party filing same to the other
party,
to any other judgment creditors affected and to the garnishee. The
party
filing the reply shall notify the court and schedule a hearing on the
reply
to be held within 30 days after filing of the reply.
(b) At the hearing, the court shall determine and rule on all issues
related
to the reply. The burden of proof shall be upon the party filing
the
reply to disprove the statements of the answer, except that the gar-
nishee
shall have the burden of proving offsets or indebtedness claimed
to
be due from the judgment debtor to the garnishee, or liens asserted
by
the garnishee against personal property of the judgment debtor. The
provisions
of K.S.A. 60-719, and amendments thereto, relating to offsets
claimed
by the garnishee shall be applicable to lawsuits filed pursuant to
the
code of civil procedure for limited actions.
New Sec. 57. If the garnishment is to attach property other than
earnings
of the judgment debtor, after 10 days following receipt of the
answer
of the garnishee by the court, and no reply to the answer has been
filed,
the court shall direct the garnishee to pay to the court such amount
that
the garnishee is holding as indicated by the answer, or such lesser
amount
if the circumstances warrant. If the garnishee is holding property
other
than money, the provisions of section 46, and amendments thereto,
relating
to attachment shall be applicable. If through garnishment, the
claim
is overpaid to the court, the court shall promptly refund to the
judgment
debtor any such overpayment.
New Sec. 58. This section shall apply if the garnishment is to attach
earnings
of the judgment debtor. If no reply is made to the answer of
garnishee
within 10 days following the date the garnishee has completed
the
answer, the garnishee shall promptly thereafter pay the earnings with-
held
as indicated on the answer to all judgment creditors designated on
the
answer in the amount due each as indicated on the answer, unless
the
garnishee receives prior to such payment an order of the court to the
contrary.
If any judgment creditor receives more than they are entitled
to,
that judgment creditor shall promptly pay the excess amount pro-rata
to
the other judgment creditors designated on the answer, or if no such
other
judgment creditors are designated, the judgment creditor shall
promptly
pay the excess amount to the judgment debtor.
New Sec. 59. If the garnishee fails to answer within the time and
manner
specified in the order of garnishment, the judgment creditor may
file
a motion and shall send a copy of the motion to the garnishee and
the
judgment debtor in the manner allowed under section 13, and amend-
ments
thereto. At the hearing on the motion, the court may grant judg-
ment
against the garnishee for the amount of the judgment creditor's
judgment
or claim against the judgment debtor or for such other amount
as
the court deems reasonable and proper, and for the expenses and
attorney
fees of the judgment creditor. If the claim of the plaintiff has
not
been reduced to judgment, the liability of the garnishee shall be
limited
to the judgment ultimately rendered against the judgment debtor.
New Sec. 60. If after the time the garnishee is to make payment of
funds
or property held under a garnishment, the garnishee fails or refuses
to
pay or deliver property to the judgment creditor, the judgment creditor
may
file a motion and shall send a copy of the motion to the garnishee
and
the judgment debtor in the manner allowed under section 13, and
amendments
thereto. At the hearing on the motion, the court may find
the
garnishee in contempt and punish the garnishee by a fine or may
enter
judgment against the garnishee for such amount as the court deems
reasonable
and proper, including the expenses and attorney fees of the
judgment
creditor.
New Sec. 61. The provisions of K.S.A. 60-721, 60-722, 60-723 and
60-724,
and amendment thereto, shall be applicable to lawsuits filed pur-
suant
to the code of civil procedure for limited actions.
New Sec. 62. The provisions of K.S.A. 60-262, and amendments
thereto,
shall apply to judgments entered under the code of civil proce-
dure
for limited actions, except as to judgments entered in eviction law-
suits
under sections 78 through 85, and amendments thereto. A judgment
entered
in an eviction lawsuit may be enforced as soon as it is entered.
New Sec. 63. General and special executions or orders of sale upon
judgments
entered under the code of civil procedure for limited actions
shall
be taken in the manner provided in article 24 of chapter 60 of the
Kansas
Statutes Annotated, and amendments thereto. The provisions of
K.S.A.
60-2410, 60-2414 and 60-2416, and amendments thereto, shall not
be
applicable to post-judgment proceedings pursuant to the code of civil
procedure
for limited actions, nor shall execution and orders of sale issued
pursuant
to the code of civil procedure for limited actions be levied upon
real
property of the judgment debtor except as provided in K.S.A. 60-
2418,
and amendments thereto.
New Sec. 64. The provisions of article 23 of chapter 60 of the Kansas
Statutes
Annotated, and amendments thereto, relating to exemptions
from
seizure and sale, shall apply to attachments, executions and other
process
issued from any court in this state pursuant to the code of civil
procedure
for limited actions.
New Sec. 65. (a) As an aid to the collection of a judgment, the judg-
ment
creditor is entitled to have an order for a hearing in aid of execution
issued
by the court at any time after 10 days after judgment. There is no
requirement
that an execution first be issued and returned unsatisfied.
No
application for such order needs to be filed except as specially re-
quired
in this section.
(b) An order for a hearing in aid of execution may be issued at the
request
of a judgment creditor in an individual case or by a master request
covering
more than one case, and shall require the judgment debtor to
appear
and furnish information under oath or penalty of perjury when
required
by the court concerning the debtor's property and income be-
fore
the court at a time and place specified in the order within the county
where
the court is situated. The form of the order shall be set forth in
rules
of the supreme court of this state. The court may cancel the hearing
if
the judgment debtor has furnished to the judgment creditor satisfactory
information
concerning the debtor's property and income prior to the
date
and time for the hearing. Witnesses may also be subpoenaed to
testify
at the hearing.
(c) If the judgment debtor resides in another county in this state or
outside
of this state, the court can order such judgment debtor to appear if
the
court finds that it will not cause undue hardship on the judgment debtor
to
appear.
(d) It shall be the duty of the judge to assist in the enforcement of the
judgments
of the court. To this end, at any hearing in aid of execution, when
the
existence of any nonexempt property of the judgment debtor is dis-
closed,
the court shall order the judgment debtor to deliver the property to
the
sheriff or a duly appointed process server. If the property is other than
currency,
the property shall be sold in the same manner as other property
taken
under execution is sold and the proceeds from the sale shall be applied
to
the judgment and costs.
New Sec. 66. If a judgment debtor appears pursuant to an order for
a
hearing
in aid of execution, the court may order the debtor to return to
court
from time to time to furnish current information under the procedure
set
forth in section 65, and amendments thereto. To avoid unnecessary
filings,
the court shall adopt a policy limiting the frequency with which the
judgment
debtor may be ordered to return to court. Such policy shall pro-
vide
that a judgment debtor who has made regular payments as agreed
between
the parties, or who is found to be disabled and otherwise unable
to
pay, shall not be required to return to court more frequently than yearly.
New Sec. 67. If a person fails to appear in response to an order
for
a
hearing in aid of execution, or if a person who has been subpoenaed to
testify
at the hearing fails to appear or to testify concerning anything about
which
the person can lawfully be questioned, the court shall issue a ci-
tation
for contempt to that person providing that the person must either:
(a) Contact the judgment creditor or attorney within 10 days to fur-
nish
information under oath or penalty of perjury concerning the judg-
ment
debtor's property and income; or
(b) appear in court at a date and time specified to show cause why
the
debtor should not be held in contempt and punished for contempt.
The
form of the citation for contempt shall be set forth in rules of the
supreme
court of this state. The citation for contempt does not need to
be
supported by affidavit or other verification.
New Sec. 68. If on hearing, the court determines that a judgment
debtor
is guilty of contempt, the court may punish the person by a fine
in
an amount to be set by the court or by imprisonment in the county jail
for
a period of not to exceed 30 days, or both. The court may also order
the
person guilty of contempt to pay the reasonable attorney fees incurred
by
the judgment creditor in the filing of the contempt citation and the
hearing
thereon.
New Sec. 69. (a) If a person fails to comply with the either of the
requirements
of section 67, and amendments thereto, or if it appears to
the
court that the person is hiding to avoid the process of the court or is
about
to leave the county for that purpose, the court may issue a bench
warrant
commanding the sheriff to whom it is directed to bring such
person
before the court to answer for contempt. The bench warrant does
not
need to be supported by affidavit or other verification. The court may
make
such orders concerning the release of the person pending the hear-
ing
as the court deems proper.
(b) When such person is brought before the court, a hearing shall be
held
to determine if the person should be punished for contempt. If the
court
determines that the person is guilty of contempt, the court may
punish
the person by a fine in an amount to be set by the court or by
imprisonment
in the county jail for a period of not to exceed 30 days, or
both.
The court may also order the person guilty of contempt to pay the
reasonable
attorney fees incurred by the judgment creditor in the filing
of
the bench warrant and the hearing thereon.
New Sec. 70. If the judgment debtor is employed in this state and
either
the debtor is a nonresident of this state or the place of residence
is
unknown, the order for a hearing in aid of execution and citation for
contempt
may be served on the judgment debtor at the place of employ-
ment.
An employer shall not unreasonably impede or impair the service
of
process on an employee who is a judgment debtor.
New Sec. 71. The provisions of K.S.A. 60-2403 and 60-2404, and
amendments
thereto, shall apply to judgments entered under the code
of
civil procedure for limited actions.
New Sec. 72. Any person who claims to have succeeded to the in-
terest
of the holder of a judgment by appointment as personal represen-
tative
for a judgment holder, by assignment, by operation of law, or oth-
erwise,
shall file a notice setting forth the basis for their claim, and
thereafter
such successor in interest shall be entitled to all the rights and
remedies
available to such successor's predecessor and may proceed to
enforce
the same in such successor's own name as such successor. It shall
not
be necessary to file with the clerk the documents which form the
basis
for the claim. If the validity of any such transfer is disputed by any
party
affected thereby, the court shall on reasonable notice to all inter-
ested
parties whose whereabouts are known, determine the respective
rights
and liabilities of all the parties.
New Sec. 73. Upon the commencement of an action, the plaintiff
may
recover possession of specific personal property before or after judg-
ment.
(a) Claim for possession of property. A plaintiff may seek an order to
obtain
possession of specific personal property as follows: Petition. The
plaintiff
shall file a petition stating:
(1) Plaintiff is the owner or the person lawfully entitled to the pos-
session,
the specific property and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held
by
an officer under legal process who has refused delivery on demand;
and
(4) the estimated value of the property.
(b) Prejudgment possession of property. A plaintiff may seek an order
to
obtain immediate possession of specific personal property, before judg-
ment
as follows: Petition. The plaintiff shall file a petition signed under
penalty
of perjury stating:
(1) Plaintiff is the owner or the person lawfully entitled to the pos-
session,
the specific property, and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held
by
an officer under legal process who has refused delivery on demand;
and
(4) the estimated value of the property.
(c) Hearing; notice, bond. After filing the petition, the plaintiff may
apply
to the court for an order for the delivery of the property prior to
judgment
on the merits of the case.
(1) The application to the court for an order shall be by motion which,
unless
made during a hearing or trial, shall be made in writing, state with
particularity
the grounds therefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant
pursuant
to sections 19 through 24, and amendments thereto.
(3) After a hearing and presentation of evidence on plaintiff's motion,
and
if the judge is satisfied as to the probable validity of plaintiff's claim
and
that delivery of the property to the plaintiff is in the interest of justice
and
will properly protect the interests of all the parties, the judge may
enter
or cause to be entered an order for the delivery of the property to
the
plaintiff.
(4) Prior to the issuance of the order for delivery of the property, the
plaintiff
shall file a bond with the clerk of the court.
(d) Bond; contents, insufficiency.
(1) The bond shall be executed by the plaintiff and one or more suf-
ficient
sureties in a sum double the amount of the fair market value of
the
property, as determined by the judge, or such lesser amount as shall
be
approved by an order of the judge.
(2) The bond shall be to the effect that the plaintiff shall duly pros-
ecute
the action, and pay all costs and damages that may be awarded
against
the plaintiff, and that if the plaintiff is given possession of the
property
the plaintiff will return it to the defendant if it be so adjudged.
If
the bond shall be found to be sufficient, the judge shall approve the
same
and note approval thereon.
(3) The defendant may challenge the sufficiency of the bond as pro-
vided
in subsection (b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right
to
take possession of the property, prior to taking possession of the prop-
erty.
(e) Replevin; without hearing, notice. Notwithstanding the foregoing
provisions
of this section, the judge may enter or cause to be entered the
order
for delivery of property after an ex parte hearing and without notice
to
and the opportunity for a hearing by the defendant, if the judge is
satisfied
as to the probable validity of the following additional allegations
to
be contained in plaintiff's petition:
(1) Possession of the property by the plaintiff is directly necessary to
secure
an important governmental or general public interest; and
(2) there is a special need for very prompt action due to the imme-
diate
danger that the defendant will destroy or conceal the property.
(f) Property in custodia legis. If the property is in the custody of an
officer
under any legal process, it shall nevertheless be subject to replevin
under
this section, but if the same is in the custody of any officer under
any
process issued out of a judicial proceeding, the petition and bond
shall
be filed in the same proceeding out of which such process issued.
(g) Order for delivery of property. The order for the delivery of the
property
to the plaintiff shall be delivered to the appropriate officer or
person
authorized to serve process of any county in the state in which the
property
is located. The order shall state the names of the parties, the
description
of the property and the value as set out in plaintiff's petition,
or
as found by the court at the hearing on plaintiff's application pursuant
to
subsection (c). The order shall command the appropriate officer to
take
immediate possession of the property and deliver it to the plaintiff
and
make return of the order on the day named therein.
(h) Execution of order, return. (1) In the execution of the order the
officer
may break open any building or enclosure in which the property
is
located, if the officer cannot otherwise obtain possession of the property
or
entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking posses-
sion
of the property described therein, and serving a copy on the person
charged
with the order of delivery in the same manner as for personal or
resident
service if the person can be found in the county.
(3) The return day of the order of delivery shall be 10 days after it is
issued,
if the order is executed within the county where the court is sit-
uated.
In all other cases, the return day shall be 20 days after the order
is
issued.
(4) The plaintiff shall have the right to attend execution of the order.
Upon
inspection of the property the plaintiff may abandon their right to
prejudgment
possession and shall so advise the appropriate officer and
the
court.
(i) Perishable goods. When property shall be actually seized which is
likely
to perish or to materially depreciate in value or threatens to decline
speedily
in value before the probable termination of the suit, or the keep-
ing
of which would be attended with unreasonable loss or expense, the
court
may order the same to be sold on such terms and conditions as the
judge
may direct, by the person having charge of the property, and a
return
of the proceedings thereon shall be made by the person at a time
to
be fixed by the judge.
(j) Redelivery, bond. The defendant, after service of a copy of the
delivery
order, may apply to the court for redelivery of the property. The
court
shall order return of the property to the defendant when the de-
fendant
files a bond with the clerk of the court, in an amount equal to
the
plaintiff's bond, executed by the defendant with one or more sufficient
sureties.
The bond shall be to the effect that the defendant will deliver
the
property to the plaintiff if so adjudged, and will pay all costs and
damages
that may be adjudged against the defendant. If the bond shall
be
found to be sufficient, the judge shall approve the same and note
approval
thereon. If the defendant is a public officer, board or govern-
ment
agency, such officer, board or agency, in lieu of giving a redelivery
bond,
may retain possession of the property seized by filing with the clerk
a
response certifying that the public health, safety or welfare would be
jeopardized
or impaired if the plaintiff acquired possession of the prop-
erty
prior to final judgment, in which case hearing may be had on the
issue
of public interest at the instance of any party.
(k) Judgment in action. (1) In an action to recover the possession of
personal
property, judgment for the plaintiff may be for possession or for
the
recovery of possession, or the value thereof in case a delivery cannot
be
had, and for damages for the detention. If the property has been
delivered
to the plaintiff and the defendant claims a return thereof, judg-
ment
for the defendant may be for a return of the property, or the value
thereof
in case a return cannot be had, and damages for taking and with-
holding
the same.
(2) In addition to other orders, the court may direct an appropriate
officer
to put the party entitled to possession in possession of the property.
New Sec. 74. A plaintiff may bring an action to reduce an indebt-
edness
to a money judgment and to foreclose the security interest in
specific
personal property given to secure such indebtedness. The plain-
tiff,
at any time before judgment is rendered, may obtain immediate pos-
session
of the specified property as follows:
(a) Petition. The plaintiff shall file a petition signed under penalty
of
perjury
stating:
(1) The plaintiff is the secured creditor of the defendant;
(2) the instrument of indebtedness or the terms thereof;
(3) the amount of the indebtedness owed;
(4) the security agreement or the terms thereof;
(5) a description of the personal property;
(6) that plaintiff is lawfully entitled to the foreclosure of the specific
personal
property;
(7) the estimated value of each item of personal property; and
(8) the defendant is no longer entitled to possess the property.
(b) Prejudgment possession; hearing, notice, bond. After filing the
petition,
the plaintiff may apply to the court for an order for the delivery
of
the property before judgment.
(1) The application to the court for an order of delivery shall be by
motion
which, unless made during a hearing or trial, shall be made in
writing,
state with particularity the grounds therefor and set forth the
relief
or order sought.
(2) The petition and application shall be served upon the defendant
pursuant
to sections 19 through 24, and amendments thereto.
(3) After a hearing and presentation of evidence on the plaintiff's
motion,
if the judge is satisfied as to the probable validity of the plaintiff's
claim
and that delivery of the property to the plaintiff is in the interest
of
justice and will properly protect the interests of all the parties, the
judge
may enter or cause to be entered an order for the delivery of the
property
to the plaintiff.
(4) Prior to the issuance of the order for delivery of the property, the
plaintiff
shall file a bond with the clerk of the court.
(c) Bond, contents, insufficiency. (1) The bond shall be executed by
the
plaintiff and one or more sufficient sureties in a sum double the
amount
of the fair market value of the property, as determined by the
judge,
or such lesser amount as shall be approved by an order of the
judge.
(2) The bond shall be to the effect that plaintiff shall duly prosecute
the
action, and pay all costs and damages that may be awarded against
the
plaintiff, and that if the plaintiff is given possession of the property
the
plaintiff will return it to the defendant if it be so adjudged. If the
bond
shall be found to be sufficient, the judge shall approve the same
and
note approval thereon.
(3) The defendant may challenge the sufficiency of the bond as pro-
vided
in subsection (b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right
to
take possession of the property, prior to taking possession of the prop-
erty.
(d) Execution of order, return. (1) In the execution of the order the
officer
may break open any building or enclosure in which the property
is
located, if the officer cannot otherwise obtain possession of the property
or
entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking posses-
sion
of the property described therein, and serving a copy on the person
charged
with the order of delivery in the same manner as for personal or
resident
service if the person can be found in the county.
(3) The return day of the order of delivery shall be 10 days after it is
issued,
if the order is executed within the county where the court is sit-
uated.
In all other cases, the return day shall be 20 days after the order
is
issued.
(4) The plaintiff shall have the right to attend execution of the order.
Upon
inspection of the property the plaintiff may abandon their right to
prejudgment
possession and shall so advise the appropriate officer and
the
court.
(e) Perishable goods. When property shall be actually seized which
is
likely to perish or to materially depreciate in value or threatens to
decline
speedily in value before the probable termination of the suit, or
the
keeping of which would be attended with unreasonable loss or ex-
pense,
the court may order the same to be sold on such terms and con-
ditions
as the judge may direct, by the person having charge of the prop-
erty,
and a return of the proceedings thereon shall be made by the person
at
a time to be fixed by the judge.
(f) Redelivery, bond. The defendant, after service of a copy of the
delivery
order, may apply to the court for redelivery of the property. The
court
shall order return of the property to the defendant when the de-
fendant
files a bond with the clerk of the court, in an amount equal to
the
plaintiff's bond, executed by the defendant with one or more sufficient
sureties.
The bond shall be to the effect that the defendant will deliver
the
property to the plaintiff if so adjudged, and will pay all costs and
damages
that may be adjudged against the defendant. If the bond shall
be
found to be sufficient, the judge shall approve the same and note
approval
thereon. If the defendant is a public officer, board or govern-
ment
agency, such officer, board or agency, in lieu of giving a redelivery
bond,
may retain possession of the property seized by filing with the clerk
a
response certifying that the public health, safety or welfare would be
jeopardized
or impaired if the plaintiff acquired possession of the prop-
erty
prior to final judgment, in which case a hearing may be had on the
issue
of public interest at the instance of any party.
(g) Possession in third party. When the officer finds the property in
possession
of a person other than a defendant and deems it advisable to
leave
such person in possession, the officer shall declare to the person in
possession
that such person shall hold such property in such person's
possession,
subject to the further order of the court, and shall summon
such
person as a garnishee by serving upon such person a copy of the
order
which directs the officer to take immediate possession of the prop-
erty.
The court may require of such person in possession an undertaking
with
good and sufficient sureties in such sum as the court deems suffi-
cient.
The undertaking shall be to the effect that such person will deliver
the
property to the officer at the time and place fixed for sale, if such be
ordered
by the court. The officer shall give such person written notice of
the
time and place fixed for the sale by delivery in person or by restricted
mail.
(h) Property claimed by third person. If the officer, before proceed-
ing,
may require the possession of, or be requested by the plaintiff to take
possession
of, personal property claimed by any person other than a de-
fendant,
the court may require the plaintiff to give the court an under-
taking
with good and sufficient sureties to pay all costs and damages that
the
officer may sustain by reason of the execution of such order.
(i) Judgment. Judgment for the plaintiff shall be for a money judg-
ment
and foreclosure of the security interest, and the plaintiff may pro-
ceed
to foreclose the security interest in accordance with the terms of
the
security agreement covering the property, as governed by the provi-
sions
of the uniform commercial code, unless the court otherwise directs.
If
the court directs the plaintiff to proceed to enforce such plaintiff's
judgment
other than pursuant to the security agreement, and if the judg-
ment
is not satisfied within 10 days thereafter, then the clerk shall issue
an
order of special execution directed to the appropriate officer to sell
the
property in accordance with section 75, and amendments thereto. If
the
property is not then in the possession of the officer, the order shall
also
direct the person having possession to deliver such property to the
officer.
If the property has been delivered to the officer, and the defend-
ant
claims a return thereof, judgment shall be for the defendant or a
return
of the property and damages for the taking and withholding of
same.
New Sec. 75. (a) Any sale conducted under the provisions of this
section
shall be subject to the provisions of K.S.A. 60-2406, and amend-
ments
thereto, except that the disposition of proceeds after the satisfac-
tion
of senior security interests or liens shall be made in accordance with
the
provisions of section 77, and amendments thereto. The officer who
shall
be directed to sell the personal property, before the officer proceeds
to
sell the same, shall cause public notice to be given of the time and
place
of sale, at least 10 days before the day of sale. The notice shall be
given
by publication at least once each week for two consecutive weeks
in
any newspaper published in the county, and which is qualified to carry
legal
publications, or, in the discretion of the court, by posting notices in
five
public places in the county, one of which shall be on a bulletin board
established
for public notices in the county courthouse. Within five days
of
the date of first publication or posting of notice, plaintiff shall send
by
restricted
mail a copy of such notice to the defendant and to those persons
known
by the plaintiff to have a security interest in the property. Such
notice
shall be sent to the last known address of the person to whom sent
and
shall be in compliance with paragraph (26) of K.S.A. 84-1-201, and
amendments
thereto. If the personal property cannot be sold at the spe-
cial
execution sale for want of bidders, the plaintiff may direct the officer
to
return the special execution showing that fact or, at the plaintiff's op-
tion,
may report the same to the judge and obtain an order permitting a
second
sale under the same special execution and an extension of the
return
day of the special execution if that be necessary.
(b) If the personal property to be sold shall consist of more than one
item
of property, the appropriate officer conducting such sale shall sell
only
so much of the personal property in the officer's custody as is nec-
essary
to satisfy the judgment, interest and costs, and shall return the
balance
of any property remaining unsold to the defendant by notifying
the
defendant of the time and place when same may be obtained.
(c) Neither the officer conducting the sale nor any other member of
the
officer's staff may bid at any such sale.
(d) The provisions of K.S.A. 60-2411, and amendments thereto, re-
lating
to advancement of printer's fees shall apply to this section.
New Sec. 76. Upon sale of such property, the appropriate officer
shall
make a return of such sale to the clerk of the court, together with
an
itemization of the officer's expenses of sale. The court, upon finding
the
proceedings regular and in conformity with law, shall confirm the
same,
and order the officer to make to the purchaser a certificate of sale.
The
certificate of sale shall accurately describe the property sold, name
the
purchaser and recite the facts of the sale. If a certificate of title is
obtainable
for such property under the laws of this state, the description
of
the property shall include the year, make, style and identification num-
ber
of such property. A certificate of sale shall vest title to the property
in
the purchaser.
New Sec. 77. (a) Upon the sale of personal property by the appro-
priate
officer, the clerk of the court shall apply the proceeds of sale in
the
following priority:
(1) To the court costs of the action including the officer's expenses
and
cost of publication;
(2) in accordance with the provisions of K.S.A. 60-2406, and amend-
ments
thereto;
(3) in satisfaction of all judgments rendered in the action against the
defendant
or the property in accordance with the priority determined by
the
court;
(4) any surplus shall be paid to the defendant, except that if any other
security
interest holder, subsequent to the entering of the judgment of
foreclosure,
files with the clerk of the court a written notification of de-
mand
furnishing reasonable proof of the security interest holder's inter-
est,
the clerk shall withhold any payment to the defendant. Such security
interest
holder shall serve the defendant with notice of the demand within
10
days after such filing and furnish proof of such notice to the court.
(b) If the defendant does not, within 10 days, notify the clerk in writ-
ing
that the defendant takes exception to the demand of such security
interest
holder, the clerk shall apply the surplus to the demand and pay
any
balance to the defendant.
(c) If the defendant, within 10 days, notifies the clerk in writing that
the
defendant takes exception to the demand, the clerk shall withhold all
surplus
in the clerk's possession for a period of 30 days. If the security
interest
holder has not commenced a separate action to recover the se-
curity
interest holder's claim and garnished the clerk within the time, the
clerk
shall pay the surplus to the defendant.
New Sec. 78. Sections 78 through 85, and amendments thereto, shall
govern
lawsuits brought to evict a person from possession of real property
or
of an interest in real property.
New Sec. 79. A judgment in a lawsuit brought under sections 78
through
85, and amendments thereto, shall not be a bar to any subsequent
lawsuit
brought by either party for claims not included in such judgment.
New Sec. 80. Before a lawsuit to evict a person pursuant to sections
78
through 85, and amendments thereto, is filed, the party desiring to
file
such lawsuit shall deliver to the other party a notice to leave the
premises
for which possession is sought. The notice shall be delivered at
least
three days before commencing the lawsuit, by leaving a written copy
with
the other party or by leaving a copy thereof with any person over
the
age of 12 years residing on the premises described in such notice, or
if
no such person is found upon the premises, by posting a copy of such
notice
in a conspicuous place thereon, or by mailing a copy of the notice
to
the other party at the address of the premises described in the notice.
The
three day notice period provided for in this section shall be computed
as
three consecutive 24-hour periods to commence at the time the notice
is
delivered, posted or mailed. If the notice is mailed, an additional two
days
from the date of mailing shall be allowed for the person to leave the
premises
before the lawsuit is filed. Intermediate Saturdays, Sundays and
legal
holidays shall be included in the computation of the notice period.
The
form of the notice shall be substantially in the form set forth in the
rules
of the supreme court of this state.
New Sec. 81. The petition shall describe the premises for which pos-
session
is sought and why the plaintiff is seeking possession. If there is
rent
due for possession of the premises, the petition may include a request
for
judgment for that amount or the plaintiff may bring a subsequent
lawsuit
for that amount. The form of the petition shall be set forth in the
rules
of the supreme court of this state.
New Sec. 82. The form of summons in lawsuits under sections 78
through
85, and amendments thereto, shall be the same as for other
lawsuits
filed under the code of civil procedure for limited actions. The
time
stated in the summons requiring the defendant to appear in response
to
the petition shall be determined by the court. Such time shall be not
less
than three nor more than 14 days after the date the summons is
issued.
New Sec. 83. A defendant shall either appear in person or by counsel
at
the time and date set forth in the summons or file on or before such
date
a written answer. The answer, when filed, shall contain the infor-
mation
as required under subsection (b) of section 10, and amendments
thereto.
New Sec. 84. (a) If a trial is necessary, the trial shall be conducted
within
eight days after the appearance date stated in the summons.
(b) No continuance shall be granted unless the defendant requesting
a
continuance shall file a bond with good and sufficient security approved
by
the court, conditioned for the payment of all damages and rent that
may
accrue if judgment is entered against the defendant.
New Sec. 85. (a) If judgment is entered against the defendant for
possession
of the subject premises, the court shall issue, at the request of
the
plaintiff, a writ of restitution which shall direct anyone who is au-
thorized
to serve process and who is named in the writ to place the plain-
tiff
in possession of the premises described in the writ. The form of the
writ
shall be set forth in the rules of the supreme court of this state.
(b) The writ of restitution shall be executed within 10 days after the
person
named in the writ receives it, and that person shall file a return
as
with other writs under the code of civil procedure for limited actions.
The
person serving the writ may use such reasonable force as is necessary
to
execute the writ.
(c) If the person named in the writ receives a notice from the court
that
the proceedings have been stayed by appeal, that person shall im-
mediately
delay all further proceedings upon the execution. If the prem-
ises
have been restored to the plaintiff, the person named in the writ shall
immediately
place the defendant in the possession thereof.
New Sec. 86. Any party to a civil action pursuant to the code of
civil
procedure
for limited actions may appeal from:
(a) A final judgment, except a judgment rendered on confession;
(b) any order, ruling or decision which determines the action at any
stage
of the proceedings;
(c) any order, ruling or decision that sustains or overrules a motion
to
dissolve an attachment or to discharge a garnishment; or
(d) any order, ruling or decision that sustains or overrules a motion
to
vacate the levy under an execution on property claimed to be exempt
under
the laws of this state.
New Sec. 87. (a) All appeals from orders, rulings, decisions or judg-
ments
of district magistrate judges under the code of civil procedure for
limited
actions shall be taken in the manner provided in subsection (a) of
K.S.A.
60-2103a, and amendments thereto. All appeals from orders, rul-
ings,
decisions or judgments of district judges under the code of civil
procedure
for limited actions shall be taken in the manner provided in
subsections
(a) and (b) of K.S.A. 60-2103, and amendments thereto. Not-
withstanding
the foregoing provisions of this subsection, if judgment has
been
rendered in an action for forcible detainer and the defendant desires
to
appeal from that portion of the judgment granting restitution of the
premises,
notice of appeal shall be filed within five days after entry of
judgment.
The notice of appeal shall specify the party or parties taking
the
appeal; the order, ruling, decision or judgment appealed from; and
the
court to which the appeal is taken.
(b) The provisions of K.S.A. 60-2001, and amendments thereto, shall
apply
to appeals pursuant to this section.
(c) An appeal from an action heard by a district magistrate judge shall
be
taken to a district judge of the county. An appeal from an action heard
by
a district judge shall be taken to the court of appeals.
New Sec. 88. Subject to the rules of the supreme court of this state,
once
an appeal is perfected, if the judge from whom such appeal is taken
is
a district magistrate judge, such judge shall notify the chief judge of
the
judicial district that the appeal has been perfected. The chief judge
then
shall assign the case to a district judge to hear the appeal.
New Sec. 89. No execution shall issue upon a judgment, nor shall
proceedings
be taken for its enforcement, until the expiration of 10 days
after
its entry. If an appellant does not file a supersedeas bond as provided
in
the code of civil procedure for limited actions, the taking of an appeal
shall
not operate to stay proceedings for the enforcement of a final judg-
ment
or to take execution thereon. Nothing in this section shall be con-
strued
as limiting any power of a judge hearing such appeal to stay pro-
ceedings
during the pendency of an appeal, to grant an injunction during
the
pendency of such appeal or to make any other appropriate order to
preserve
the status quo or the effectiveness of the judgment subsequently
to
be rendered.
New Sec. 90. (a) Whenever an appellant entitled thereto desires a
stay
on appeal from an action pursuant to the code of civil procedure for
limited
actions, such appellant may present to the judge from which the
appeal
is taken, for the judge's approval, a supersedeas bond which shall
have
such surety or sureties as the judge requires. The bond may be given
at
or after the time of filing the notice of appeal, and the stay is effective
when
the supersedeas bond is approved by the judge. Such bond shall be
conditioned
for the satisfaction of the judgment in full together with costs,
interest
and damages for delay, if for any reason the appeal is dismissed,
or
if the judgment is affirmed; and to satisfy in full any modification of
the
judgment and such costs, interests and damages as the appellate court
may
adjudge and award.
(b) When the judgment is for the recovery of money not otherwise
secured,
the amount of the bond shall be fixed at such sum as will cover
the
whole amount of the judgment remaining unsatisfied, costs on the
appeal,
interest and damages for delay, unless the court after notice and
hearing
and for good cause shown fixes a different amount or orders
security
other than the bond. When the judgment determines the dis-
position
of the property in controversy as in replevin, or when such prop-
erty
is in the custody of the sheriff or when the proceeds of such property
or
a bond for its value is in the custody or control of the court, the amount
of
the supersedeas bond shall be fixed after notice and hearing at such
sum
only as will secure the amount recovered for the use and detention
of
the property, the costs of the action, costs on appeal, interest and
damages
for delay. When an order is made discharging, vacating or mod-
ifying
a provisional remedy, a party aggrieved thereby shall be entitled,
upon
application to the judge, to have the operation of such order sus-
pended
for a period of not to exceed 10 days on condition that, within
the
period of 10 days, such party shall file notice of appeal and obtain the
approval
of such supersedeas bond as is required under this section.
(c) In lieu of a supersedeas bond, the court may condition a stay of
proceedings
pending appeal upon the timely payment into court of the
periodic
rent otherwise due from the defendant to the plaintiff under the
rental
agreement pertaining to the real property in issue.
New Sec. 91. In appeals taken by the defendant in actions for the
forcible
detention of real property, the supersedeas bond filed on appeal
shall
be conditioned that the appellant will not commit or suffer waste to
be
committed on the premises in controversy, and if upon appeal the
court
judgment be rendered against the appellant, the appellant will pay
the
value of the use and occupation of the property, from the date such
bond
was filed until the delivery of the property pursuant to the judgment,
and
all damages and costs that may be awarded against the appellant.
New Sec. 92. If a supersedeas bond was not filed with the notice
of
appeal,
and if the action is not yet docketed on appeal, a bond may be
filed
with the court from which the appeal is taken. After the action is so
docketed,
application for leave to file a bond may be made only in the
appellate
court. When the surety for a supersedeas bond shall be insuf-
ficient,
or such bond is insufficient in form or amount, the appellate court
may
on motion order a change or renewal of such bond, and direct that
it
be filed in such court.
New Sec. 93. By entering into a supersedeas bond given pursuant to
sections
90 and 91, and amendments thereto, the surety submits to the
jurisdiction
of the court wherein the judgment becomes final, and irrev-
ocably
appoints the clerk of such court as the surety's agent upon whom
any
papers affecting the surety's liability on the bond may be served. The
surety's
liability may be enforced on motion without the necessity of an
independent
action. The motion and such notice of the motion as the
judge
prescribes may be served on the clerk of the court who shall forth-
with
mail copies to the surety if the surety's address is known.
New Sec. 94. If the appeal is dismissed by the judge hearing such
appeal,
the action shall be remanded to the judge from which such appeal
was
taken.
New Sec. 95. (a) Docket fee. No case shall be filed or docketed pur-
suant
to the code of civil procedure for limited actions without the pay-
ment
of a docket fee in the amount of $19.50, if the amount in controversy
or
claimed does not exceed $500; $39.50, if the amount in controversy or
claimed
exceeds $500 but does not exceed $5,000; or $64.50, if the
amount
in controversy or claimed exceeds $5,000. If judgment is ren-
dered
for the plaintiff, the court also may enter judgment for the plaintiff
for
the amount of the docket fee paid by the plaintiff.
(b) Poverty affidavit; additional court costs. The provisions of subsec-
tions
(b), (c) and (d) of K.S.A. 60-2001, and amendments thereto, shall
be
applicable to lawsuits brought under the code of civil procedure for
limited
actions.
New Sec. 96. The provisions of K.S.A. 60-2002, 60-2003, 60-2006,
60-2610
and 60-2611, and amendments thereto, shall be applicable to
lawsuits
brought under the code of civil procedure for limited actions.
New Sec. 97. The applicable provisions of article 25 of chapter 60
of
the
Kansas Statutes Annotated, and amendments thereto, relating to lost
or
destroyed court files and records, shall govern lost court files and re-
cords
in actions pursuant to the code of civil procedure for limited actions,
except
as otherwise provided in the rules of the supreme court of this
state.
New Sec. 98. Whenever an oath is required by the code of civil pro-
cedure
for limited actions, the affirmation of a person conscientiously
opposed
to taking an oath shall have the same effect.
New Sec. 99. If a case arises in which an action or proceeding for
the
enforcement or protection of a substantive right, or the redress or
prevention
of a wrong, cannot be had under any specific provisions of the
code
of civil procedure for limited actions or other statutes, then the court
shall
proceed as nearly in conformity with the provisions of the code of
civil
procedure for limited actions as the circumstances permit to do what-
ever
law and justice require for the protection of the parties.
New Sec. 100. The procedures prescribed by the code of civil pro-
cedure
for limited actions shall apply to any actions or proceedings com-
menced,
or judgments entered, prior to the enactment of this act.
New Sec. 101. The forms contained in the rules to be adopted here-
under
by the supreme court are sufficient under this act and are intended
to
indicate the simplicity and brevity of statement which this act contem-
plates.
Sec. 102. K.S.A. 1999 Supp. 19-4737 is hereby amended to read as
follows:
19-4737. (a) An appeal may be taken from any judgment under
the
code for the enforcement of county codes and resolutions. All appeals
shall
be by notice of appeal specifying the party or parties taking the
appeal
and the order, ruling, decision or judgment complained of and
shall
be filed with the clerk of the district court within 10 days after entry
of
judgment. All appeals shall be tried and determined de novo before
a
district
judge, other than the judge from which the appeal is taken. The
provisions
of K.S.A. 60-2001 and 61-1716 section 32, and amendments
thereto,
shall be applicable to actions appealed pursuant to this subsec-
tion.
The appealing party shall cause notice of the appeal to be served
upon
all other parties to the action in accordance with the provisions of
K.S.A.
60-205 and amendments thereto. An appeal shall be perfected
upon
the filing of the notice of appeal. When the appeal is perfected, the
clerk
of the court or the judge from which the appeal is taken shall refer
the
case to the chief judge for assignment in accordance with this section.
All
proceedings for the enforcement of any judgment under the code for
the
enforcement of county codes and resolutions shall be stayed during
the
time within which an appeal may be taken and during the pendency
of
an appeal, without the necessity of the appellant filing a supersedeas
bond.
(b) Any order, ruling, decision or judgment rendered by a district
judge
on an appeal taken pursuant to subsection (a) may be appealed in
the
manner provided in article 21 of chapter 60 of the Kansas Statutes
Annotated.
Sec. 103. K.S.A. 1999 Supp. 20-302b is hereby amended to read as
follows:
20-302b. (a) A district magistrate judge shall have the jurisdiction
and
power, in any case in which a violation of the laws of the state is
charged,
to conduct the trial of traffic infractions, cigarette or tobacco
infractions
or misdemeanor charges to conduct the preliminary exami-
nation
of felony charges and to hear felony arraignments subject to as-
signment
pursuant to K.S.A. 20-329 and amendments thereto. In civil
cases,
a district magistrate judge shall have concurrent jurisdiction, pow-
ers
and duties with a district judge, except that, unless otherwise specif-
ically
provided in subsection (b), a district magistrate judge shall not have
jurisdiction
or cognizance over the following actions:
(1) Any action, other than an action seeking judgment for an unse-
cured
debt not sounding in tort and arising out of a contract for the
provision
of goods, services or money, in which the amount in contro-
versy,
exclusive of interests and costs, exceeds $10,000, except that in
actions
of replevin, the affidavit in replevin or the verified petition fixing
the
value of the property shall govern the jurisdiction; nothing in this
paragraph
shall be construed as limiting the power of a district magistrate
judge
to hear any action pursuant to the Kansas probate code or to issue
support
orders as provided by paragraph (6) of this subsection;
(2) actions against any officers of the state, or any subdivisions
thereof,
for misconduct in office;
(3) actions for specific performance of contracts for real estate;
(4) actions in which title to real estate is sought to be recovered or
in
which an interest in real estate, either legal or equitable, is sought
to
be
established, except that nothing in this paragraph shall be construed
as
limiting the right to bring an action for forcible detainer as provided
in
the acts contained in article 23 of chapter 61 of the Kansas Statutes
Annotated,
and any acts amendatory thereof or supplemental sections 78
through
85, and amendments thereto; and nothing in this paragraph shall
be
construed as limiting the power of a district magistrate judge to hear
any
action pursuant to the Kansas probate code;
(5) actions to foreclose real estate mortgages or to establish and fore-
close
liens on real estate as provided in the acts contained in article 11 of
chapter
60 of the Kansas Statutes Annotated, and any acts amendatory
thereof
or supplemental amendments thereto;
(6) actions for divorce, separate maintenance or custody of minor
children,
except that nothing in this paragraph shall be construed as lim-
iting
the power of a district magistrate judge to: (A) Hear any action
pursuant
to the Kansas code for care of children or the Kansas juvenile
justice
code; (B) establish, modify or enforce orders of support, including,
but
not limited to, orders of support pursuant to the Kansas parentage
act,
K.S.A. 23-451 et seq., 39-718a, 39-718b, 39-755 or 60-1610 or K.S.A.
23-4,105
through 23-4,118, 23-4,125 through 23-4,137, 38-1542, 38-1543
or
38-1563, and amendments thereto; or (C) enforce orders granting a
parent
visitation rights to the parent's child;
(7) habeas corpus;
(8) receiverships;
(9) change of name;
(10) declaratory judgments;
(11) mandamus and quo warranto;
(12) injunctions;
(13) class actions;
(14) rights of majority; and
(15) actions pursuant to K.S.A. 59-29a01 et seq. and amendments
thereto.
(b) Notwithstanding the provisions of subsection (a), in the absence,
disability
or disqualification of a district judge, a district magistrate judge
may:
(1) Grant a restraining order, as provided in K.S.A. 60-902 and
amendments
thereto;
(2) appoint a receiver, as provided in K.S.A. 60-1301 and amend-
ments
thereto; and
(3) make any order authorized by K.S.A. 60-1607 and amendments
thereto.
(c) In accordance with the limitations and procedures prescribed by
law,
and subject to any rules of the supreme court relating thereto, any
appeal
permitted to be taken from an order or final decision of a district
magistrate
judge shall be tried and determined de novo by a district judge,
except
that in civil cases where a record was made of the action or pro-
ceeding
before the district magistrate judge, the appeal shall be tried and
determined
on the record by a district judge.
(d) Upon motion of a party, the chief judge may reassign an action
from
a district magistrate judge to a district judge.
Sec. 104. K.S.A. 1999 Supp. 20-362 is hereby amended to read as
follows:
20-362. The clerk of the district court shall remit at least monthly
all
revenues received from docket fees as follows:
(a) To the county treasurer, for deposit in the county treasury and
credit
to the county general fund:
(1) A sum equal to $10 for each docket fee paid pursuant to K.S.A.
60-2001
and 60-3005, and amendments thereto, during the preceding
calendar
month;
(2) a sum equal to $10 for each $36.50 or $61.50 docket fee paid
pursuant
to K.S.A. 61-2501, 61-2704 or 61-2709 section 95, or
K.S.A. 61-
2704
or 61-2709, and amendments thereto; and
(3) a sum equal to $5 for each $16.50 $19.50 docket
fee paid pursuant
to
K.S.A. 61-2501 or 61-2704 section 95 or K.S.A. 61-2704,
and amend-
ments
thereto, during the preceding calendar month.
(b) To the board of trustees of the county law library fund, for deposit
in
the fund, a sum equal to the library fees paid during the preceding
calendar
month for cases filed in the county.
(c) To the county treasurer, for deposit in the county treasury and
credit
to the prosecuting attorneys' training fund, a sum equal to $1 for
each
docket fee paid pursuant to K.S.A. 28-172a, and amendments
thereto,
during the preceding calendar month for cases filed in the county
and
for each fee paid pursuant to subsection (c) of K.S.A. 28-170, and
amendments
thereto, during the preceding calendar month for cases filed
in
the county.
(d) To the state treasurer, for deposit in the state treasury and credit
to
the indigents' defense services fund, a sum equal to $.50 for each
docket
fee paid pursuant to K.S.A. 28-172a and subsection (d) of K.S.A.
28-170,
and amendments thereto, during the preceding calendar month.
(e) To the state treasurer, for deposit in the state treasury and credit
to
the law enforcement training center fund, during the period com-
mencing
July 1, 1998, and ending June 30, 2002, a sum equal to $9, and
on
and after July 1, 2002, a sum equal to $8 for each docket fee paid
pursuant
to K.S.A. 28-172a, and amendments thereto, during the pre-
ceding
calendar month.
(f) To the state treasurer, for deposit in the state treasury and distri-
bution
according to K.S.A. 20-367 and amendments thereto, a sum equal
to
the balance which remains from all docket fees paid during the pre-
ceding
calendar month after deduction of the amounts specified in sub-
sections
(a), (b), (c), (d) and (e).
Sec. 105. K.S.A. 58-227 is hereby amended to read as follows: 58-
227.
(a) Any person leasing or renting space for a manufactured home or
mobile
home site shall have a lien upon any manufactured home or mo-
bile
home situated thereon for unpaid lease or rental payments and for
other
unpaid charges due such lessor under the written terms and con-
ditions
of any lease or rental agreement with the lessee. Such lien shall
be
effective after the lessee has defaulted in payments as provided in the
written
rental or lease agreement with the lessor. Notice of such lien shall
be
given by the lessor by causing written notice of such lien to be posted
conspicuously
upon such manufactured home or mobile home.
The lien provided by this act shall have priority over all other liens
except
a previous validly perfected security interest in such manufactured
home
or mobile home.
(b) At any time after 30 days beyond the date notice is given to the
lessee,
the lessor may remove the manufactured home or mobile home
from
the leased or rented site and may retain such lien as is provided in
this
act. Upon such removal, reasonable charges for such removal and
storage
may be assessed against the manufactured home or mobile home.
Notwithstanding
the foregoing no manufactured home or mobile home
may
be removed pursuant to this subsection if such manufactured home
or
mobile home is occupied by the lessee; in such cases the lessor may
obtain
restitution of the premises pursuant to article 23 of chapter 61
of
the
Kansas Statutes Annotated sections 78 through 85, and amendments
thereto.
(c) Such lien may be enforced and foreclosed as security agreements
are
enforced under the provisions of the uniform commercial code.
Sec. 106. K.S.A. 58-2542 is hereby amended to read as follows: 58-
2542.
The district court shall have jurisdiction over any landlord or tenant
with
respect to any conduct in this state governed by this act or with
respect
to any claim arising from a transaction subject to this act, and
notwithstanding
the provisions of subsection (b) of K.S.A. 61-1603 section
2,
and any amendments thereto, such actions may be commenced
pur-
suant
to the code of civil procedure for limited actions. Unless otherwise
specifically
provided in this act, the code of civil procedure for limited
actions
shall govern any action commenced pursuant to this act.
Sec. 107. K.S.A. 1999 Supp. 58-2565 is hereby amended to read as
follows:
58-2565. (a) If the rental agreement requires the tenant to give
notice
to the landlord of an anticipated extended absence in excess of
seven
days required in K.S.A. 58-2558, and amendments thereto, and the
tenant
willfully fails to do so, the landlord may recover actual damages
from
the tenant.
(b) During any absence of the tenant in excess of 30 days, the landlord
may
enter the dwelling unit at times reasonably necessary. If, after the
tenant
is 10 days in default for nonpayment of rent and has removed a
substantial
portion of such tenant's belongings from the dwelling unit,
the
landlord may assume that the tenant has abandoned the dwelling unit,
unless
the tenant has notified the landlord to the contrary.
(c) If the tenant abandons the dwelling unit, the landlord shall make
reasonable
efforts to rent it at a fair rental. If the landlord rents the
dwelling
unit for a term beginning prior to the expiration of the rental
agreement,
it is deemed to be terminated as of the date the new tenancy
begins.
The rental agreement is deemed to be terminated by the landlord
as
of the date the landlord has notice of the abandonment, if the landlord
fails
to use reasonable efforts to rent the dwelling unit at a fair rental or
if
the landlord accepts the abandonment as a surrender. If the tenancy is
from
month-to-month, or week-to-week, the term of the rental agree-
ment
for this purpose shall be deemed to be a month or a week, as the
case
may be.
(d) If the tenant abandons or surrenders possession of the dwelling
unit
and leaves household goods, furnishings, fixtures or any other per-
sonal
property in or at the dwelling unit or if the tenant is removed from
the
dwelling unit as a result of a forcible detainer action, pursuant to
K.S.A.
61-2301, et seq.
sections 78 through 85, and amendment amend-
ments
thereto, and fails to remove any household goods, furnishings, fix-
tures
or any other personal property in or at the dwelling unit after pos-
session
of the dwelling unit is returned to the landlord, the landlord may
take
possession of the property, store it at tenant's expense and sell or
otherwise
dispose of the same upon the expiration of 30 days after the
landlord
takes possession of the property, if at least 15 days prior to the
sale
or other disposition of such property the landlord shall publish once
in
a newspaper of general circulation in the county in which such dwelling
unit
is located a notice of the landlord's intention to sell or dispose of
such
property. Within seven days after publication, a copy of the pub-
lished
notice shall be mailed by the landlord to the tenant at the tenant's
last
known address. Such notice shall state the name of the tenant, a brief
description
of the property and the approximate date on which the land-
lord
intends to sell or otherwise dispose of such property. If the foregoing
requirements
are met, the landlord may sell or otherwise dispose of the
property
without liability to the tenant or to any other person who has or
claims
to have an interest in such property, except as to any secured
creditor
who gives notice of creditor's interest in such property to the
landlord
prior to the sale or disposition thereof, if the landlord has no
knowledge
or notice that any person, other than the tenant, has or claims
to
have an interest in such property. During such 30 [30-day] period after
the
landlord takes possession of the property, and at any time prior to
sale
or other disposition thereof, the tenant may redeem the property
upon
payment to the landlord of the reasonable expenses incurred by the
landlord
of taking, holding and preparing the property for sale and of any
amount
due from the tenant to the landlord for rent or otherwise.
(e) Any proceeds from the sale or other disposition of the property
as
provided in subsection (d) shall be applied by the landlord in the fol-
lowing
order:
(1) To the reasonable expenses of taking, holding, preparing for sale
or
disposition, giving notice and selling or disposing thereof;
(2) to the satisfaction of any amount due from the tenant to the land-
lord
for rent or otherwise; and,
(3) the balance, if any, may be retained by the landlord, without lia-
bility
to the tenant or to any other person, other than a secured creditor
who
gave notice of creditors interest as provided in subsection (d), for
any
profit made as a result of a sale or other disposition of such property.
(f) Any person who purchases or otherwise receives the property pur-
suant
to a sale or other disposition of the property as provided under
subsection
(d) of this section, without knowledge that such sale or dis-
position
is in violation of the ownership rights or security interest of a
third
party in the property, takes title to the property free and clear of
any
right, title, claim or interest of the tenant or such third party in the
property.
Sec. 108. K.S.A. 58-25,102 is hereby amended to read as follows:
58-
25,102.
(a) The district court shall have jurisdiction over a
landlord or
tenant
with respect to conduct in this state governed by this act or with
respect
to any claim arising from a transaction subject to this act, and
notwithstanding
the provisions of subsection (b) of K.S.A. 61-1603 section
2,
and amendments thereto, such actions may be commenced pursuant
to
the code of civil procedure for limited actions. Unless otherwise spe-
cifically
provided in this act, the code of civil procedure for limited actions
shall
govern any action commenced pursuant to this act. If the relief
sought
is beyond the jurisdiction of a district magistrate judge as provided
in
K.S.A. 20-302b, and amendments thereto, the action shall be heard by
a
district judge.
Sec. 109. K.S.A. 60-201 is hereby amended to read as follows: 60-
201.
This article governs the procedure in the district courts of Kansas,
other
than actions commenced pursuant to chapter 61 of the Kansas Stat-
utes
Annotated, and any amendments thereto, the code of civil procedure
for
limited actions and governs the procedure in all original proceedings
in
the supreme court in all suits of a civil nature whether cognizable as
cases
at law or in equity, except as provided in K.S.A. 60-265, and amend-
ments
thereto.
Sec. 110. K.S.A. 60-213 is hereby amended to read as follows: 60-
213.
(a) Compulsory counterclaims. A pleading shall state as a counter-
claim
any claim which at the time of serving the pleading the pleader has
against
any opposing party, if it arises out of the transaction or occurrence
that
is the subject matter of the opposing party's claim and does not
require
for its adjudication the presence of third parties of whom the
court
cannot acquire jurisdiction; but the pleader need not state the claim
if
(1) at the time the action was commenced the claim was the subject of
another
pending action, or (2) the opposing party brought suit upon such
party's
claim by attachment or other process by which the court did not
acquire
jurisdiction to render a personal judgment on that claim, and the
pleader
is not stating any other counterclaim under this section.
(b) Permissive counterclaims. A pleading may state as a counterclaim
any
claim against an opposing party not arising out of the transaction or
occurrence
that is the subject matter of the opposing party's claim.
(c) Counterclaim exceeding opposing claim. A counterclaim may or
may
not diminish or defeat the recovery sought by the opposing party. It
may
claim relief exceeding in amount or different in kind from that sought
in
the pleading of the opposing party.
(d) Effect of death or limitations. When cross demands have existed
between
persons under such circumstances that, if one had brought an
action
against the other, a counterclaim or cross-claim could have been
set
up, neither can be deprived of the benefit thereof by the assignment
or
death of the other or by reason of the statute of limitations if arising
out
of the contract or transaction set forth in the petition as the foundation
of
plaintiff's claim or connected with the subject of the action; but the
two
demands must be deemed compensated so far as they equal each
other.
(e) Counterclaim maturing or acquired after pleading. A claim which
either
matured or was acquired by the pleader after serving the pleading
may,
with the permission of the court, be presented as a counterclaim by
supplemental
pleading.
(f) Omitted counterclaim. When a pleader fails to set up a counter-
claim
through oversight, inadvertence, or excusable neglect, or when jus-
tice
requires, the pleader may by leave of court set up the counterclaim
by
amendment.
(g) Compulsory cross-claim against co-party. In an action involving
a
claim governed by K.S.A. 60-258a and amendments thereto, a party
shall
state as a cross-claim any claim that party has against any co-party
arising
out of the transaction or occurrence that is the subject matter of
the
claim governed by K.S.A. 60-258a and amendments thereto.
(h) Permissive cross-claim against co-party. A pleading may state
as
a
cross-claim any claim by one party against a co-party arising out of the
transaction
or occurrence that is the subject matter either of the original
action
or of a counterclaim therein or relating to any property that is the
subject
matter of the original action. Such cross-claim may include a claim
that
the party against whom it is asserted is or may be liable to the cross-
claimant
for all or part of a claim asserted in the action against the cross-
claimant.
(i) Joinder of additional parties. Persons other than those made
par-
ties
to the original action may be made parties to a counterclaim or cross-
claim
in accordance with the provisions of K.S.A. 60-219 and 60-220, and
amendments
thereto.
(j) Separate trials; separate judgments. If the court orders separate
trials
as provided in K.S.A. 60-242 and amendments thereto judgment on
a
counterclaim or cross-claim may be rendered in accordance with the
terms
of K.S.A. 60-254 and amendments thereto when the judge has
jurisdiction
so to do, even if the claims of the opposing party have been
dismissed
or otherwise disposed of.
(k) Appealed and removed actions. When an action is filed in the
district
court pursuant to chapter 61 the code of civil procedure
for limited
actions
and such action is transferred as provided in K.S.A. 61-1717
sec-
tion
16, and amendments thereto or such action is heard by a district
magistrate
judge and is appealed and a trial de novo will be held before
a
district judge, any counterclaim made compulsory by subsection (a) shall
be
stated as an amendment to the pleading within 20 days after such filing
or
such other time as the court shall allow. Other counterclaims and cross-
claims
shall be permitted as in an original action in the district court
pursuant
to this chapter.
Sec. 111. K.S.A. 60-265 is hereby amended to read as follows: 60-
265.
The provisions of this article shall apply only to actions and pro-
ceedings
in the district courts, other than actions commenced pursuant
to
chapter 61 of the Kansas Statutes Annotated, and any amendments
thereto,
the code of civil procedure for limited actions and shall apply
to
original
actions in the supreme court except:
(1) When made applicable in any other courts, boards, commissions,
or
other judicial or quasi-judicial bodies by specific statutory provisions
referring
to this article.
(2) When any other such court or judicial or quasi-judicial body
adopts
by an order, which order is consistent with all statutes controlling
its
procedures, all or a part of this article for its own proceedings, either
in
a particular matter before it or in any matters generally, or
(3) When any statute pertaining to any such court or other judicial
or
quasi-judicial body, which statute was enacted prior to the adoption of
this
article and which incorporated by reference procedures under the
then
existing code of civil procedure, then the most nearly comparable
provisions
of this article shall be applicable to the procedures in such
court
or body until modified or supplemented by specific statutes or or-
ders
in accordance with clauses (1) or (2) of this section.
In any matter over which the court has jurisdiction but with reference
to
which no specific provision is included in this article, the court shall
proceed
in such manner as shall be just and equitable to protect the rights
and
interests of all parties affected thereby.
Sec. 112. K.S.A. 60-304 is hereby amended to read as follows: 60-
304.
As used in this section, "serving" means making service by any of
the
methods described in K.S.A. 60-303, and amendments thereto, unless
a
specific method of making service is prescribed in this section. Except
for
service by publication under K.S.A. 60-307, and amendments thereto,
service
of process under this article shall be made as follows:
(a) Individual. Upon an individual other than a minor or a disabled
person,
by serving the individual or by serving an agent authorized by
appointment
or by law to receive service of process, but if the agent is
one
designated by statute to receive service, such further notice as the
statute
requires shall be given. Service by certified mail shall be addressed
to
an individual at the individual's dwelling house or usual place of abode
and
to an authorized agent at the agent's usual or designated address. If
service
by certified mail to the individual's dwelling house or usual place
of
abode is refused or unclaimed, the sheriff, party or party's attorney
seeking
service may complete service by certified mail, restricted delivery,
by
serving the individual at a business address after filing a return on
service
stating the certified mailing to the individual at such individual's
dwelling
house or usual place of abode has been refused or unclaimed
and
a business address is known for such individual.
(b) Minor. Upon a minor, by serving the minor and also either the
minor's
guardian or conservator if the minor has one within the state or
the
minor's father or mother or other person having the minor's care or
control
or with whom such minor resides, or if service cannot be made
upon
any of them, then as provided by order of the judge. Service by
certified
mail shall be addressed to an individual at the individual's dwell-
ing
house or usual place of abode and to a corporate guardian or conser-
vator
at such guardian or conservator's usual place of business.
(c) Disabled person. Upon a disabled person, as defined in
K.S.A.
59-3002,
and amendments thereto, by serving (1) such person's guardian,
conservator
or a competent adult member of such person's family with
whom
the person resides, or if such person is living in an institution, then
the
director or chief executive officer of the institution or, if service can-
not
be made upon any of them, then as provided by order of the judge,
and
(2) unless the judge otherwise orders, the disabled person. Service
by
certified mail shall be addressed to a director or chief executive officer
of
an institution at the institution, to any other individual at the individ-
ual's
dwelling house or usual place of abode, and to a corporate guardian
or
conservator at such guardian or conservator's usual place of business.
(d) Governmental bodies. (1) Upon a county, by serving one of the
county
commissioners or the county clerk or the county treasurer; (2)
upon
a township, by serving the clerk or the trustee; (3) upon a city, by
serving
the clerk or the mayor; (4) upon any other public corporation,
body
politic, district or authority by serving the clerk or secretary or, if
not
to be found, to any officer, director or manager thereof; and (5) upon
the
state or any governmental agency of the state, when subject to suit,
by
serving the attorney general or an assistant attorney general. Service
by
certified mail shall be addressed to the appropriate official at the of-
ficial's
governmental office. Income withholding orders for support and
orders
of garnishment of earnings of state officers and employees shall
be
served upon the state or governmental agency of the state in the man-
ner
provided by K.S.A. 60-723 and amendments thereto.
(e) Corporations and partnerships. Upon a domestic or foreign cor-
poration
or upon a partnership or other unincorporated association, when
by
law it may be sued as such, (1) by serving an officer, partner or a
resident,
managing or general agent, or (2) by leaving a copy of the sum-
mons
and petition at any business office of the defendant with the person
having
charge thereof, or (3) by serving any agent authorized by appoint-
ment
or required by law to receive service of process, and if the agent is
one
authorized by law to receive service and the law so requires, by also
mailing
a copy to the defendant. Service by certified mail on an officer,
partner
or agent shall be addressed to such person at the person's usual
place
of business.
(f) Foreign corporation or foreign limited partnership resident agent.
Service
of process or service of any notice or demand required or per-
mitted
by law to be served on a foreign corporation or foreign limited
partnership
may also be made on the corporation or limited partnership
by
service thereof on the resident agent of the corporation or limited
partnership.
Whenever any foreign corporation or foreign limited part-
nership
authorized to transact business or transacting business without
authority
in this state fails to appoint or maintain in this state a resident
agent
upon whom service of legal process or service of any such notice
or
demand may be had, whenever the resident agent of such corporation
or
limited partnership cannot with reasonable diligence be found at the
registered
office in this state or whenever the certificate of authority of
any
foreign corporation or foreign limited partnership is forfeited, the
secretary
of state shall be irrevocably authorized as the agent and repre-
sentative
of the foreign corporation or foreign limited partnership to ac-
cept
service of any process or service of any notice or demand required
or
permitted by law to be served upon the corporation or limited part-
nership.
Service on the secretary of state of any process, notice or demand
against
the foreign corporation or foreign limited partnership shall be
made
by delivering to and leaving with the secretary of state, or with any
clerk
having charge of the corporation department of the secretary of
state's
office, the original and two copies of the process and two copies
of
the petition, notice or demand, or the clerk of the court may send the
original
process and two copies of both the process and the petition,
notice
or demand directly to the secretary of state by restricted mail. In
the
event that any process, notice or demand is served on the secretary
of
state, the secretary shall immediately cause a copy thereof to be for-
warded
by restricted mail, addressed to the corporation or limited part-
nership
at its principal office as it appears in the records of the secretary
of
state, or to the registered or principal office of the corporation or
limited
partnership in the state of its incorporation or formation. The
secretary
of state shall keep a record of all processes, notices and demands
served
upon the secretary under this subsection, and shall record in the
record
the time of the service and the action of the secretary with ref-
erence
to it. A fee of $30 shall be paid to the secretary of state by the
party
requesting the service of process, to cover the cost thereof. That
fee
shall not be included within or paid from any deposit as security for
any
costs or docket fee required by K.S.A. 60-2001 or 61-2501
section 95,
and
amendments thereto.
(g) Insurance companies or associations. Service of summons or other
process
may also be made on any insurance company or association, or-
ganized
under the laws of the state of Kansas by service on the commis-
sioner
of insurance in the same manner as that provided for service on
foreign
insurance companies. All the requirements of law relating to serv-
ice
on foreign insurance companies so far as applicable shall also apply
to
domestic insurance companies.
(h) Service upon an employee. If the plaintiff or the plaintiff's
agent
or
attorney files an affidavit that to the best of the affiant's knowledge
and
belief the defendant is a nonresident who is employed in this state,
or
that the place of residence of the defendant is unknown, the affiant
may
direct that the service of summons or other process be made by the
sheriff
or other duly authorized person by directing an officer, partner,
managing
or general agent, or the person having charge of the office or
place
of employment at which the defendant is employed, to make the
defendant
available for the purpose of permitting the sheriff or other duly
authorized
person to serve the summons or other process.
Sec. 113. K.S.A. 60-725 is hereby amended to read as follows: 60-
725.
Whenever the secretary of labor, pursuant to authority vested in said
the
secretary under P.L. 90-321, shall promulgate rules and regulations
establishing
the amount of disposable earnings subject to wage garnish-
ment,
which rules and regulations are a result of a change in and based
upon
multiples of the minimum hourly wage established by section
206(a)(1)
of title 29 of the United States code, the clerks of the several
district
courts are hereby authorized and directed to amend the instruc-
tions
to the garnishee in the garnishee's answer form, as contained in
subsection
(b) of K.S.A. 60-718, and amendments thereto, to correspond
to
said such rules and regulations and in
like manner, to amend the in-
structions
to the garnishee in the garnishee's answer form, as contained
in
Form No. 8a in the appendix of forms following K.S.A. 61-2605, to
correspond
to said rules and regulations.
Sec. 114. K.S.A. 1999 Supp. 60-2202 is hereby amended to read as
follows:
60-2202. (a) Any judgment rendered in this state by a court of
the
United States or by a district court of this state in an action com-
menced
under chapter 60 of the Kansas Statutes Annotated shall be a
lien
on the real estate of the judgment debtor within the county in which
judgment
is rendered. Except as provided in subsection (c), the lien shall
be
effective from the time at which the petition stating the claim against
the
judgment debtor was filed but not to exceed four months prior to the
entry
of the judgment. An attested copy of the journal entry of the judg-
ment,
together with a statement of the costs taxed against the judgment
debtor
in the case, may be filed in the office of the clerk of the district
court
of any other county upon payment of the fee prescribed by K.S.A.
28-170
and amendments thereto, and the judgment shall become a lien
on
the real estate of the debtor within that county from the date of filing
the
copy. The clerk shall enter the judgment on the appearance docket
and
index it in the same manner as if rendered in the court in which the
clerk
serves. Executions shall be issued only from the court in which the
judgment
is rendered.
(b) Any judgment rendered by a district court of this state in an action
commenced
under chapter 61 of the Kansas Statutes Annotated the
code
of
civil procedure for limited actions shall become a lien on the real
prop-
erty
of the judgment debtor when the party in whose favor the judgment
was
rendered pays the fee prescribed by K.S.A. 28-170 and amendments
thereto
and the clerk of the district court enters the judgment in the
appearance
docket. The lien shall become a lien only upon the debtor's
real
property that is located in the county in which the filing is made, but
a
filing may be made in any county in which real property of the judgment
debtor
is located. Upon the filing of a journal entry of judgment and
payment
of the fee as provided in this section, the clerk of the district
court
shall enter it in the appearance docket. The lien shall cease to be a
lien
on the real property of the judgment debtor at the time provided in
article
24 of this chapter.
(c) Notwithstanding the foregoing provisions of this section, the filing
of
a petition or other pleadings against an employee of the state or a
municipality
which alleges a negligent or wrongful act or omission of the
employee
while acting within the scope of the employee's employment
shall
create no lien rights as against the property of the employee prior
to
judgment, regardless of whether or not it is alleged in the alternative
that
the employee was acting outside the scope of the employee's em-
ployment.
A judgment against an employee shall become a lien upon the
employee's
property when the judgment is rendered only if it is found
that
(1) the employee's negligent or wrongful act or omission occurred
when
the employee was acting outside the scope of the employee's em-
ployment
or (2) the employee's conduct which gave rise to the judgment
was
because of actual fraud or actual malice of the employee; in those
cases
the lien shall not be effective prior to the date judgment is rendered.
As
used in this subsection, "employee" has the meaning provided by
K.S.A.
75-6102 and amendments thereto.
(d) If unpaid arrearages accrued under a support order rendered in
another
state give rise to a lien on real property in the state where ren-
dered,
such arrearages shall become a lien on the real property of the
obligor
as of the date the clerk of the court in this state enters the order
in
the appearance docket. The clerk of the court shall enter the order in
the
appearance docket upon receiving payment of the fee prescribed by
K.S.A.
28-170 and amendments thereto; a sworn statement that the ob-
ligor
was provided at least 30 days' prior written notice that the lien would
be
filed in this state, that the obligor was provided an opportunity for
hearing
concerning the proposed filing and that no hearing was timely
requested
or the decision therein allows the lien to be filed; a sworn
statement
of the amount of the lien; and a legible copy of the support
order
or, in a title IV-D case, a notice of lien that describes the support
order.
The lien shall become a lien only upon the obligor's real property
that
is located in the county in which the filing is made, but a filing may
be
made in any county in which real property of the obligor is located.
The
lien shall cease to be a lien on the real property of the obligor at the
time
provided in article 24 of this chapter. As used in this section, "title
IV-D
case" means a case being administered pursuant to part D of title
IV
of the federal social security act (42 U.S.C. § 651 et seq.) and amend-
ments
thereto. Any person filing the documents required by this subsec-
tion
shall be deemed to have submitted to the jurisdiction of the courts
of
this state with respect to any action in this state to determine the
validity
of the lien or the lien's attachment to any real property.
(e) A person named as the debtor in a notice of lien filed pursuant
to
subsection (d) based upon a support order issued in another state, or
a
person whose interest in real estate is affected by the filing of such
a
notice
of lien may file a petition pursuant to chapter 60 of the Kansas
Statutes
Annotated, and amendments thereto, with the district court
where
the notice of lien was filed. The petitioner shall notify the person
who
filed the notice of lien that a hearing to contest the validity of the
lien
or the lien's attachment to the petitioner's property will be held no
less
than 30 days after the date of mailing or personal service of the notice.
Sec. 115. K.S.A. 60-2418 is hereby amended to read as follows: 60-
2418.
(a) In all cases in which a judgment is rendered pursuant to chapter
61
of the Kansas Statutes Annotated the code of civil procedure
for limited
actions,
the party in whose favor judgment is rendered may pay the fee
prescribed
by K.S.A. 28-170 and amendments thereto. Upon payment of
the
fee the clerk of the district court in the county in which the judgment
was
rendered shall renumber the case as a case filed under this chapter
and
enter payment of the fee and the renumbering of the case on the
appearance
docket of the case. The judgment shall become a lien on the
real
estate of the judgment debtor in the county from the date of the
entry.
Execution to satisfy the judgment shall proceed in the same manner
as
original judgments in the district court pursuant to this chapter.
(b) If any judgment filed pursuant to this section becomes dormant,
it
may be revived in the same manner as other judgments in the district
court.
Sec. 116. K.S.A. 75-6103 is hereby amended to read as follows: 75-
6103.
(a) Subject to the limitations of this act, each governmental entity
shall
be liable for damages caused by the negligent or wrongful act or
omission
of any of its employees while acting within the scope of their
employment
under circumstances where the governmental entity, if a
private
person, would be liable under the laws of this state.
(b) (1) Except as otherwise provided in this act, either the code
of
civil
procedure or, subject to provision (2) of this subsection, the code of
civil
procedure for limited actions shall be applicable to actions within
the
scope of this act. Actions for claims within the scope of the Kansas
tort
claims act brought under the code of civil procedure for limited
actions
are subject to the limitations provided in K.S.A. 61-1603
section
2,
and amendments thereto.
(2) Actions within the scope of the Kansas tort claims act may not be
brought
under the small claims procedure act.
Sec. 117. K.S.A. 58-227, 58-2542, 58-25,102, 60-201, 60-213, 60-
265,
60-304, 60-725, 60-2418, 61-1601, 61-1603 through 61-1605, 61-
1608,
61-1701 through 61-1703, 61-1703a, 61-1704 through 61-1709, 61-
1711
through 61-1719, 61-1721 through 61-1723, 61-1725a, 61-1726,
61-1728,
61-1801 through 61-1803, 61-1805 through 61-1807, 61-1901
through
61-1909, 61-2001 through 61-2012, 61-2101, 61-2102, 61-2104
through
61-2109, 61-2201 through 61-2204, 61-2301 through 61-2304,
61-2306
through 61-2311, 61-2402 through 61-2405, 61-2502, 61-2503,
61-2601
through 61-2605 and 75-6103 and K.S.A. 1999 Supp. 19-4737,
20-302b,
20-362, 58-2565, 60-2202, 61-1710, 61-1720, 61-1724, 61-1725,
61-1729,
61-2013, 61-2014, 61-2103, 61-2305, 61-2401, and 61-2501 are
hereby
repealed.
Sec. 118. This act shall take effect and be in force from and after
January
1, 2001, and its publication in the statute book.