By Whom Issued

The Clerk's Issuing Function

Summons is the court process that notifies the defendant that a civil action has been commenced and commands the defendant to answer within the period fixed by the Rules. Its issuance is the first official step toward acquiring jurisdiction over the person of a defendant who has not voluntarily appeared.

Under Rule 14, the summons is issued by the clerk of court. The rule assigns issuance to the clerk, not to the judge, the sheriff, the process server, the plaintiff, or counsel. The clerk acts as the authorized officer of the court whose signature and seal authenticate the process as an official command of the tribunal where the action is pending.

The clerk's duty to issue summons arises upon receipt of the initiating pleading and proof of payment of the requisite legal fees, unless the defendant's voluntary appearance makes summons unnecessary. Once these conditions exist, issuance is ministerial: the clerk does not pass upon the truth of the allegations, the sufficiency of the cause of action, the availability of defenses, or the likelihood that the complaint will prosper.

The five-calendar-day period for issuance emphasizes that summons should follow filing promptly. Delay in issuing summons may delay acquisition of jurisdiction over the defendant and may postpone the defendant's obligation to answer, but the delay does not transform the clerk's ministerial function into a discretionary judicial act.

Why the Clerk Issues the Summons

The allocation of the issuing function to the clerk reflects the administrative nature of issuance. Filing a proper initiating pleading and paying the legal fees call for the issuance of court process as a matter of course. The judge decides contested issues; the clerk authenticates and releases the court's process when the Rules require it.

Because summons is an official process of the court, it must be signed by the clerk of court under the seal of the court. The signature identifies the authorized issuing officer, while the seal identifies the court from which the process emanates. A document that merely resembles a summons, but is not signed by the clerk or does not bear the court's seal, lacks the usual authentication required of summons.

The clerk issues the summons in the case where the action is filed. A summons cannot be validly generated by a private party as an independent notice, nor can the act of serving a pleading by counsel replace the court-issued process required to bring an unwilling defendant under the court's authority.

Issuance Distinguished from Service

Issuance and service are separate procedural acts. Issuance is the preparation, signing, sealing, and release of summons by the clerk. Service is the delivery or transmission of that issued summons, together with the required attachments, to the defendant by the officer or person authorized by the Rules or by the court.

Even when the court authorizes the plaintiff to serve summons, the summons remains a process issued by the clerk. The authorization affects the person who may serve; it does not transfer the power to issue summons from the clerk to the plaintiff.

Likewise, a sheriff, deputy sheriff, process server, or other authorized server does not issue summons by delivering it. The server executes the process after it has already been issued by the clerk, and the return of service reports what was done to accomplish service.

When Issuance Becomes Unnecessary

Issuance of summons is unnecessary when the defendant voluntarily appears in court, because voluntary appearance is equivalent to service of summons. The purpose of summons is to bring the defendant before the court; if the defendant submits to the court's authority, the procedural need for compulsory notice is satisfied.

Voluntary appearance must be understood in relation to jurisdiction over the person. A defendant who appears only to question the court's jurisdiction over the person does not thereby submit to that jurisdiction merely because the defendant invokes that objection. The modern rule also prevents waiver from being inferred solely because the defendant joins other objections with the jurisdictional challenge.

No summons is needed for the plaintiff, because the plaintiff submits to the court's jurisdiction by filing the action. For a counterclaim against the plaintiff, the plaintiff is already before the court. However, when a new party is impleaded as a defendant, third-party defendant, or similar newly added party who has not voluntarily appeared, summons must be issued for that person by the clerk.

Initiating Pleading and Legal Fees

The clerk's duty to issue summons is tied to the receipt of the initiating pleading and proof of payment of the requisite legal fees. This requirement prevents the issuance of compulsory court process before the action is properly brought before the court's docket.

The initiating pleading is the pleading that commences the claim against the defendant to be summoned. In an ordinary civil action, it is the complaint. When an additional party is brought in through a permissible pleading, the same logic applies: the newly impleaded party must receive court-issued summons if personal jurisdiction has not otherwise been acquired.

Proof of payment of legal fees matters because the clerk does not issue process in a vacuum. The court's machinery is set in motion by filing and payment, subject to recognized rules on indigent litigants and other lawful exemptions. Once the court accepts the initiating pleading and the required fees or exemption basis is in place, the clerk's issuance of summons follows as a ministerial consequence.

Contents Connected to the Issuing Officer

The identity of the issuing officer is reflected in the required form of summons. It must be directed to the defendant, signed by the clerk, and impressed with the seal of the court. These formal elements show that the document is not a private demand letter, a mere notice from counsel, or an unofficial copy of a pleading.

The summons must identify the court and the parties, direct the defendant to answer within the period fixed by the Rules, and warn that failure to answer may result in default and the grant of relief prayed for. When the court authorizes the plaintiff to serve summons, that authorization must appear in the summons because it informs the defendant that service by the plaintiff is court-approved.

A copy of the complaint must accompany the summons, and an order appointing a guardian ad litem must also be attached when applicable. These attachments do not change who issues the summons; they complete the notice given to the defendant by providing the pleading that states the claim and, when needed, the order protecting a party under disability.

Effect of Defective Issuance

Because summons is the mode by which the court acquires jurisdiction over the person of a non-appearing defendant, a defect in issuance can affect the validity of subsequent proceedings against that defendant. A summons not issued by the clerk, not signed by the clerk, or not under the court's seal is vulnerable because it fails to show that the court itself has issued the process.

A defect in issuance should be distinguished from a defect in service. A properly issued summons may still be improperly served; conversely, a document personally handed to the defendant is not valid summons if it was never properly issued. Both kinds of defects may prevent acquisition of jurisdiction over the person, but they arise at different procedural stages.

Defective issuance or service may be cured by proper issuance and valid service, or by voluntary appearance. The cure operates prospectively as to jurisdiction over the person; it does not treat an unauthorized private notice as though it had always been a valid court-issued summons.

Once a defendant has been validly summoned or has voluntarily appeared, the court may proceed to require an answer and act on the consequences of non-answer. Until then, the defendant's obligation to respond does not arise from mere knowledge of the lawsuit, because actual knowledge does not replace the formal requirement of valid summons in ordinary cases.

Practical Consequences of the Rule

• The judge's signature is not required for ordinary issuance of summons; the clerk's signature and the court seal are the operative marks of issuance.
• The clerk may not refuse issuance on the ground that the complaint appears weak, dismissible, or unsupported by evidence.
• The clerk may require the procedural predicates for issuance, especially the initiating pleading and proof of payment of legal fees or a recognized basis for exemption.
• Each defendant who has not appeared must be the subject of corresponding summons, because jurisdiction over one defendant does not confer jurisdiction over another.
• Authorization for the plaintiff to serve summons must come from the court, but the summons itself is still issued by the clerk.
• Actual receipt of a complaint without clerk-issued summons generally does not impose the duty to answer or confer jurisdiction over the person.
• A newly impleaded party generally requires summons, while a party already before the court is bound by the court's jurisdiction without new summons for claims properly asserted within the action.

The central rule is therefore simple but consequential: summons is a court process issued by the clerk of court, authenticated by the clerk's signature and the court seal, and directed to the defendant so that the court may acquire jurisdiction over the defendant's person through valid service or recognize jurisdiction through voluntary appearance.