Could a magistrate categorically bar a qualified private process server from serving a civil summons?

Plain-English summary

In 2005, the Attorney General said a magistrate could not simply maintain a blanket bar against an otherwise qualified civil process server. A denial could be supported by sufficient facts or good cause. Otherwise, the applicable service rule governed. The opinion quoted Rule 4(c), which allowed a summons to be served by the sheriff, a deputy, or another person at least eighteen years old who was neither an attorney nor a party to the case.

The AG distinguished service of other process, for which the quoted rule named law enforcement officers or a court-designated qualified person. He also recognized that a particular type of action, such as claim and delivery, might have a specific service rule.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a magistrate refuse every private process server as a general policy?
The AG said denial required sufficient facts or good cause; otherwise the applicable service rule controlled.

Who could serve a summons under the rule quoted in the opinion?
The sheriff, a deputy, or another person at least eighteen who was not an attorney or a party to the action.

Did the same rule treat all other civil process identically?
No. The quoted rule and the AG’s discussion distinguished other process and noted specific rules for some proceedings.

Background and statutory framework

The magistrate asked about private servers in civil and landlord-tenant matters. The AG applied the general civil service rule to magistrate courts insofar as practicable and where no contrary specific rule applied.

Citations and references

• Rule 4(c), Rules of Civil Procedure: service qualifications quoted in the opinion.
• Rule 81, Rules of Civil Procedure: application to magistrate courts discussed by the AG.

Official title

Questioning whether a magistrate may deny a civil process server the right to serve civil process, particularly a summons and complaint and matters relating to landlord and tenant, as long as the process server meets the requirements of law.

Requester

The Honorable Thomas Ed Taylor, Summons Court Judge

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-5-2005-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05jan5-taylor.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY M CMASTER
A110RNEY GENERAL

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January 5, 2005

The Honorable Thomas Ed Taylor
Summary Court Judge
8150 Augusta Road
Piedmont, South Carolina 29673

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Dear Magistrate Taylor:
In a letter to this office you questioned whether a magistrate may deny a civil process server the right to serve civil process, particularly a summons and complaint and matters relating to landlord and tenant, as long as the process server meets the requirements oflaw. Rule 4(c) of the Rules of Civil Procedure provide that Service of summons may be made by the sheriff, his deputy or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action. Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action, except that a subpoena may be served as provided in Rule 49.

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Rule 81 of these Rules states that
These rules, or any of them, shall apply to every trial court of civil jurisdiction within this state, within the limits of the jurisdiction and powers of the court provided by law, and the procedure therein shall conform to these rules insofar as practicable. They shall apply insofar as practicable in magistrate's courts, probate courts, and family courts to the extent they are not inconsistent with the statutes and rules governing these courts.... RuJe 4(c) is applicable to a magistrate's courts inasmuch as I am unaware of any rule or other provision particular to a magistrate' s court that provides a contrary rule of service generally. Consistent with Rule 4(c) service may be made by any individual not Iess than eighteen years of age who is not an attorney or a party to an action, unless, of course, specific authority provides for service by a particular individual for particular types of actions, such as a constable or deputy sheriff for claim and delivery actions. See: Op. Atty. Gen. dated April 11 , 2003. As to your

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8 UUDING

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POST 0 FFJCI: Box 11 549

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s.c. 292 11 -1549 • TELEPHONE: 803-734 -3970 • FACSIMJl.E: 803-253-6283

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The Honorable Thomas Ed Taylor
Page 2
January 5, 2005

particular question concerning whether a magistrate may have a blanket policy of denying a civil process server the right to serve civil process where that individual is otherwise qualified pursuant to Rule (4 )( c) or any other applicable provision, in my opinion, denial may be had for reasons of sufficient facts or good cause. Otherwise, Rule 4( c) or any other applicable provision providing for service would apply.

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With kind regards, I am,

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Very truly yours,

&µ,/-R/ y-(.d ({~JCCharles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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k{; ert D. Cook

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Assistant Deputy Attorney General