When someone is being served with a complaint, does it have to be given to them personally?

Asked over 1 year ago - Galena, IL

My finance is currently serving time in jail and he was served with papers for an order of protection . However , they just left it in his locker and did not serve him face to face . Since then , she has been trying to get him in trouble for violating the order of protection . He didn't know it was in his locker .

Attorney answers (4)

  1. Luke D. Kazmar

    Pro

    Contributor Level 14

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    Answered . In the absence of prescribed/directed/proper service upon defendant(s), “any order the court enters against him is void, whether or not he had actual knowledge of the proceedings.” Stankowicz v. Gonzalez, 103 Ill. App. 3d 828, 831 (1st Dist. 1981); State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308 (Ill. 1986)

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  2. Luke Allen Thomas

    Pro

    Contributor Level 11

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    Answered . Service can be accomplished one of three ways: handing it the person, leaving it with someone 13 years or older at the person's abode and then mailing a copy to that address or by publication. In order to serve by publication you have to file an affidavit stating you've made reasonable attempts to locate the person but are unable to do so.

    As to orders of protection, they must be personally served upon the person. Lack of proper service is a defense to the charge of violating the OP

    However if he knows about it his efforts are better spent hiring an attorney to defend against the order. Time is of the essence as there are mechanisms available to challenge the entry of the order.

    Good luck

    This response is being provided for information purposes only and does not constitute an attorney client... more
  3. Wes Cowell

    Contributor Level 19

    3

    Lawyers agree

    Answered . Is this his jail locker, we're talking about? Or are you saying your fiance was in jail and the process server left summons and a copy of the Order in his locker at work, or school, or church, or some locker where he could not possibly have known about it?

    If it was outside the jail, obviously, that would not be good service.

    If it was his jail locker, then there is a reasonable argument to be made that such service was sufficient. Was the locker in his cell? Was it regularly accessed by him? Daily? Did he see the server place the papers in his jail locker? Was he told the papers were placed in the jail locker?

    I see a scene were a guy is behind bars, sitting on his bunk, and there is a locker in the cell within arms reach of the jailer. The jailer says "Hey, accused . . . I got some papers here, for ya! Sumpin' about a Order 'o' Protection!" The accused on the bunk says "I ain't gettin' up to get 'em," and continues to sit on the bunk. So the jailer says "Fine, be that way . . . I'll just leave 'em here, in yer locker for ya;" and places the papers in the locker inside the cell.

    Is that what happened?

    Please add more facts and try to be a little more specific.

  4. Joseph Henry Sparacino

    Contributor Level 13

    2

    Lawyers agree

    Answered . This is a tough one. If your fiance is in Jail, how did he threaten or harm anyone outside of the Jail? The Summons for an Order of Protection is usually personally served by the sheriff on the respondent or a member of his household over 13 years of age. As he is in Jail, it would seem service by the Sheriff would be relatively easy; the Sheriff knows where he is. As to the issue of violation; is the victim a Jail employee? Or is the whole thing based on 3rd parties acting on his behalf. As I am often in Court have him call my assistant Dan London at 312-807-3990 to set up a private telephone consultation. At the consultation we can discuss the confidential details we need to craft a strategic plan. These details should not be broadcase over the Internet.

    This is a general answer and does not address the specifics of your individual case. To give the specific answer... more

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