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Title § 8.01 Civil Remedies and Procedure
§ 8.01-285. Definition of certain terms for purposes of this chapter; process, return, statutory agent.
For the purposes of this chapter:
1. The term “process” shall be deemed to include notice;
2. The term “return” shall be deemed to include the term “proof of service”;
3. The term “statutory agent” means the Commissioner of the Department of Motor Vehicles and the Secretary of the Commonwealth, and the successors of either, when appointed pursuant to law for the purpose of service of process on the nonresident defined in subdivision 2 of § 8.01-307.
(1977, c. 617; 1991, c. 672.)
§ 8.01-286. Forms of writs. Subject to the provisions of § 8.01-3, the Supreme Court may prescribe the forms of writs, and where no such prescription is made, the forms of writs shall be the same as heretofore used.
(Code 1950, § 8-43; 1977, c. 617.)
§ 8.01-287. How process to be served. Upon commencement of an action, process shall be served in the manner set forth in this chapter and by the Rules of the Supreme Court.
(Code 1950, § 8-56; 1952, c. 77; 1954, c. 543; 1977, c. 617.)
§ 8.01-288. Process received in time good though neither served nor accepted. Process received in time good though neither served nor accepted Except for process commencing actions for divorce or annulment of marriage or other actions wherein service of process is specifically prescribed by statute, process which has reached the person to whom it is directed within the time prescribed by law, if any, shall be sufficient although not served or accepted as provided in this chapter. (Code 1950, § 8-53; 1977, c. 617; 1987, c. 594; 1988, c. 583.)
§ 8.01-289. No service of process on Sunday; exceptions. No civil process shall be served on Sunday, except in cases of persons escaping out of custody, or where it is otherwise expressly provided by law.
§ 8.01-290. Plaintiffs required to furnish full name and last known address of defendants, etc. Upon the commencement of every action, the plaintiff shall furnish in writing to the clerk or other issuing officer the full name and last known address of each defendant and if unable to furnish such name and address, he shall furnish such salient facts as are calculated to identify with reasonable certainty such defendant. The clerk or other official whose function it is to issue any such process shall note in the record or in the papers the address or other identifying facts furnished. Failure to comply with the requirements of this section shall not affect the validity of any judgment.
(Code 1950, § 8-46.1; 1962, c. 10; 1977, c. 617.)
§ 8.01-291. Copies to be made. The clerk issuing any such process unless otherwise directed shall deliver or transmit therewith as many copies thereof as there are persons named therein on whom it is to be served.
(Code 1950, § 8-57; 1977, c. 617.)
§ 8.01-292. To whom process directed and where executed. – Process from any court, whether original, mesne, or final, may be directed to the sheriff of, and may be executed in, any county, city, or town in the Commonwealth.
(Code 1950, § 8-44; 1954, c. 333; 1977, c. 617.)
§ 8.01-293. Who to serve process.
A. The following persons are authorized to serve process:
1. The sheriff within such territorial bounds as described in § 8.01-295; or
2. Any person of age eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy. Whenever in this Code the term “officer” or “sheriff” is used to refer to persons authorized to make, return or do any other act relating to service of process, such term shall be deemed to refer to any person authorized by this section to serve process.
B. Notwithstanding any other provision of law (i) only a sheriff may execute an order or writ of possession for personal, real or mixed property, including an order or writ of possession arising out of an action in unlawful entry and detainer or ejectment; (ii) any sheriff or law-enforcement officer as defined in § 9-169 of the Code of Virginia may serve any capias or criminal show cause order; and (iii) only a sheriff, the high constable for the City of Norfolk or Virginia Beach or a treasurer may levy upon property.
(Code 1950, §§ 8-52, 8-54; 1954, c. 543; 1960 c. 16, 1968, c. 484, 1977, c. 617, 1981, c. 110, 1986, c. 275; 1996, cc. 501, 608: 1997, c. 820.)
Case Note: Where nothing in the record established that process server was qualified to serve process under Virginia’s procedural requirements, service of process was invalid, and the court did not acquire personal jurisdiction over defendant. Harrel v. Preston, 15 Va.App. 202, 421 S.E.2d 676 (1992).
§ 8.01-294. Sheriff to get from clerk’s office process and other papers; return of papers. Every sheriff who attends a court shall, every day when the clerk’s office is open for business, go to such office and receive all process, and other papers to be served by him, and give receipts therefor, unless he has received notice from a regular employee of the clerk’s office that there are no such papers requiring service and shall return all papers within seventy-two hours of service, except when such returns would be due on a Saturday, Sunday, or legal holiday. In such case, the return is due on the next day following such Saturday, Sunday, or legal holiday.
(Code 1950, § 8-49; 1954, c. 545; 1977, c. 617; 1978, c. 831.)
§ 8.01-295. Territorial limits within which sheriff may serve process in his official capacity; process appearing to be duly served. The sheriff may execute such process throughout the political subdivision in which he serves and in any contiguous county or city. If the process appears to be duly served, and is good in other respects, it shall be deemed valid although not directed to an officer, or if directed to any officer, though executed by some other person. This section shall not be construed to require the sheriff to serve such process in any jurisdiction other than in his own.
(Code 1950, § 8-50; 1977, c. 617; 1982, c. 674.)
§ 8.01-296. Manner of serving process upon natural persons.
In any action at law or in equity or any other civil proceeding in any court, process, for which no particular mode of service is prescribed, may be served upon natural persons as follows:
1. By delivering a copy thereof in writing to the party in person; or
2. By substituted service in the following manner:
a. If the party to be served is not found at his usual place of abode, by delivering a copy of such process and giving information of its purport to any person found there, who is a member of his family, other than a temporary sojourner or guest, and who is of the age of sixteen years or older; or
b. If such service cannot be effected under subdivision 2 a, then by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode, provided that not less than ten days before judgment by default may be entered, the party causing service or his attorney or agent mails to the party served a copy of such process and thereafter files in the office of the clerk of the court a certificate of such mailing. In any civil action brought in a general district court, the mailing of the application for a warrant in debt or affidavit for summons in unlawful detainer or other civil pleading or a copy of such pleading, whether yet issued by the court or not, which contains the date, time and place of the return, prior to or after filing such pleading in the general district court, shall satisfy the mailing requirements of this section. In any civil action brought in a circuit court, the mailing of a copy of the pleadings with a notice that the proceedings are pending in the court indicated and that upon the expiration of ten days after the giving of the notice and the expiration of the statutory period within which to respond, without further notice, the entry of a judgment by default as prayed for in the pleadings may be requested, shall satisfy the mailing requirements of this section and any notice requirement of the Rules of Court. Any judgment by default entered after July 1, 1989, upon posted service in which proceedings a copy of the pleadings was mailed as provided for in this section prior to July 1, 1989, is validated.
c. The person executing such service shall note the manner and the date of such service on the original and the copy of the process so delivered or posted under subdivision 2 and shall effect the return of process as provided in §§ 8.01-294 and 8.01-325.
3. If service cannot be effected under subdivisions 1 and 2 of this section, then by order of publication in appropriate cases under the provisions of §§ 8.01-316 through 8.01-320.
(Code 1950, § 8-51; 1954, c. 333; 1977, c. 617; 1989, cc. 518, 524; 1990, cc. 729, 767; 1996, c. 538.)
§ 8.01-297. Process on convict defendant. In all actions against one who has been convicted of a felony and is confined in a local or regional jail or State correctional institution, process shall be served on such convict and, subject to § 8.01-9, a guardian ad litem shall be appointed for him. Such service may be effected by delivery to the officer in charge of such jail or institution whose duty it shall be to deliver forthwith such process to the convict.
(Code 1950, § 8-55; 1954, c. 543; 1977, c. 617.)
§ 8.01-299. How process served on domestic corporations generally. Except as prescribed in § 8.01-300 as to municipal and quasi-governmental corporations, process may be served on a corporation created by the laws of this State as follows:
1. By personal service on any officer, director, or registered agent of such corporation; or
2. By substituted service on stock corporations in accordance with § 13.1-637 and on nonstock corporations in accordance with § 13.1-836.
(Code 1950, § 8-59; 1954, c. 23; 1956, c. 432; 1958, c. 13; 1976, c. 395; 1977, c. 617; 1991, c. 672.)
§ 8.01-300. How process served on municipal and county governments and on quasi-governmental entities. Notwithstanding the provisions of § 8.01-299 for service of process on other domestic corporations, process shall be served on municipal and county governments and quasi-governmental bodies or agencies in the following manner:
1. If the case be against a city or a town, on its city or town attorney in those cities or towns which have created such a position, otherwise on its mayor manager or trustee of such town or city; and
2. If the case be against a county, on its county attorney in those counties which have created such a position, otherwise on its attorney for the Commonwealth; and
3. If the case be against any political subdivision, or any other public governmental entity created by the laws of the Commonwealth and subject to suit as an entity separate from the Commonwealth, then on the director, commissioner, chief administrative officer, attorney, or any member of the governing body of such entity; and
4. If the case be against a supervisor, county officer, employee or agent of the county board, arising out of official actions of such supervisor, officer, employee or agent, then, in addition to the person named defendant in the case, on each supervisor and the county attorney, if the county has a county attorney, and if there be no county attorney, on the clerk of the county board.
Service under this section may be made by leaving a copy with the person in charge of the office of any officer designated in subdivisions 1 through 4.
(Code 1950, § 8-59; 1954, c. 23; 1956, c. 432; 1958, c. 13; 1976, c. 395; 1977, c. 617; 1980, c. 732; 1985, c. 416.)
§ 8.01-301. How process served on foreign corporations generally. Service of process on a foreign corporation may be effected in the following manner:
1. By personal service on any officer, director or on the registered agent of a foreign corporation which is authorized to do business in the Commonwealth, and by personal service on any agent of a foreign corporation transacting business in the Commonwealth without such authorization, wherever any such officer, director, or agents be found within the Commonwealth;
2. By substituted service on a foreign corporation in accordance with §§ 13.1-766 and 13.1-928, if such corporation is authorized to transact business or affairs within the Commonwealth;
3. By substituted service on a foreign corporation in accordance with § 8.01-329 where jurisdiction is authorized under § 8.01-328.1, regardless of whether such foreign corporation is authorized to transact business within the Commonwealth; or
4. By order of publication in accordance with §§ 8.01-316 and 8.01-317 where jurisdiction in rem or quasi in rem is authorized, regardless of whether the foreign corporation so served is authorized to transact business within the Commonwealth.
(Code 1950, § 8-60; 1977, c. 617; 1991, c. 672.)
§ 8.01-302. Service of certain process on foreign or domestic corporations. In addition to other provisions of this chapter for service on corporations, process in attachment or garnishment proceedings, and notice by a creditor of judgment obtained and execution thereon issued in his favor, may be served on any agent of a foreign or domestic corporation wherever such agent may be found within the Commonwealth. Service so made shall constitute sufficient service upon such corporation; provided that notice of judgment obtained and execution issued shall comply in all respects to the provisions of §§ 8.01-502, 8.01-503 and 8.01-504.
(Code 1950, § 8-63; 1977, c. 617.)
§ 8.01-303. On whom process served when corporation operated by trustee or receiver. When any corporation is operated by a trustee or by a receiver appointed by any court, in any action against such corporation, process may be served on its trustee or receiver; and if there be more than one such trustee or receiver, then service may be on any one of them. In the event that no service of process may be had on any such trustee or receiver, then process may be served by any other mode of service upon corporations authorized by this chapter.
(Code 1950, § 8-64; 1977, c. 617.)
§ 8.01-304. How process served on copartner or partnership. Process against a copartner or partnership may be served upon a general partner, and it shall be deemed service upon the partnership and upon each partner individually named in the action, provided the person served is not a plaintiff in the suit and provided the matter in suit is a partnership matter. Provided further that process may be served upon a limited partner in any proceeding to enforce a limited partner’s liability to the partnership. (Code 1950, § 8-59.1; 1950, p. 455; 1977, c. 617.)
§ 8.01-305. Process against unincorporated associations or orders, or unincorporated common carriers. Process against an unincorporated (i) association, (ii) order, or (iii) common carrier, may be served on any officer, trustee, director, staff member or other agent.
(Code 1950, §§ 8-66, 8-67; 1962, c. 250; 1977, c. 617.)
§ 8.01-306. Process against unincorporated associations or orders, or unincorporated common carriers; principal office outside Virginia and business transactions in Virginia. If an unincorporated (i) association, (ii) order, or (iii) common carrier has its principal office outside Virginia and transacts business or affairs in the Commonwealth, process may be served on any officer, trustee, director, staff member, or agent of such association, order, or carrier in the city or county in which he may be found or on the clerk of the State Corporation Commission, who shall be deemed by virtue of such transaction of business or affairs in the Commonwealth to have been appointed statutory agent of such association, order, or carrier upon whom may be made service of process in accordance with § 12.1-19.1. Service, when duly made, shall constitute sufficient foundation for a personal judgment against such association, order or carrier. If service may not be had as aforesaid, then on affidavit of that fact an order of publication may be awarded as provided by §§ 8.01-316 and 8.01-317.
(Code 1950, § 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672.)
§ 8.01-307. Definition of terms “motor vehicle” and “nonresident” in motor vehicle and aircraft accident cases. For the purpose of §§ 8.01-308 through 8.01-313: (Code 1950, § 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672.)
1. The term “motor vehicle” shall mean every vehicle which is self-propelled or designed for self-propulsion and every vehicle drawn by or designed to be drawn by a motor vehicle and includes every device in, upon, or by which any person or property is or can be transported or drawn upon a highway, except devices moved by human or animal power and devices used exclusively upon stationary rails or tracks.
2. The term “nonresident” includes any person who, though a resident of the Commonwealth when the accident or collision specified in § 8.01-308 or § 8.01-309 occurred, has been continuously outside the Commonwealth for at least sixty days next preceding the date when process is left with the Commissioner of the Department of Motor Vehicles or the Secretary of the Commonwealth and includes any person against whom an order of publication may be issued under the provisions of § 8.01-316.
(Code 1950, § 8-67.1; 1950, p. 620; 1952, c. 681; 1956, c. 64; 1966, c. 518; 1977, c. 617.)
§ 8.01-307. Definition of terms “motor vehicle” and “nonresident” in motor vehicle and aircraft accident cases. For the purpose of §§ 8.01-308 through 8.01-313: (Code 1950, § 8-66.1; 1962, c. 250; 1977, c. 617; 1991, c. 672.)
§ 8.01-308. Service on Commissioner of the Department of Motor Vehicles as agent for nonresident motor vehicle operator. Any operation in the Commonwealth of a motor vehicle by a nonresident, including those nonresidents defined in subdivision 2 of § 8.01-307, either in person or by an agent or employee, shall be deemed equivalent to an appointment by such nonresident of the Commissioner of the Department of Motor Vehicles, and his successors in office, to be the attorney or statutory agent of such nonresident for the purpose of service of process in any action against him growing out of any accident or collision in which such nonresident, his agent, or his employee may be involved while operating motor vehicles in this Commonwealth. Acceptance by a nonresident of the rights and privileges conferred by Article 5 (§ 46.2-655 et seq.) of Chapter 6 of Title 46.2 shall have the same effect under this section as the operation of such motor vehicle, by such nonresident, his agent, or his employee.
(Code 1950, § 8-67.1; 1950, p. 620; 1952, c. 681; 1956, c. 64; 1966, c. 518; 1977, c. 617.)
§ 8.01-309. Service on Secretary of Commonwealth as agent of nonresident operator or owner of aircraft. Any nonresident owner or operator of any aircraft that is operated over and above the land and waters of the Commonwealth or uses aviation facilities within the Commonwealth, shall by such operation and use appoint the Secretary of the Commonwealth as his statutory agent for the service of process in any action against him growing out of any accident or collision occurring within or above the Commonwealth in which such aircraft is involved.
(Code 1950, § 8-67.4; 1952, c. 384; 1954, c. 333; 1977, c. 617.)
§ 8.01-310. How service made on Commissioner and Secretary; appointment binding.
A. Service of process on either the Commissioner of the Department of Motor Vehicles as authorized under § 8.01-308 or on the Secretary of the Commonwealth as authorized under § 8.01-309, shall be made by leaving a copy of such process together with the fee for service of process on parties, in the amount prescribed in § 2.1-71.2, for each party to be thus served, in the hands, or in the office, of such Commissioner or such Secretary and such service shall be sufficient upon the nonresident. All fees collected by the Commissioner pursuant to the provisions of this section shall be paid into the state treasury and shall be set aside as a special fund to be used to meet the expenses of the Department of Motor Vehicles.
B. Appointment of the Commissioner or Secretary as attorney or agent for the service of process on a nonresident under § 8.01-308 or § 8.01-309 shall be irrevocable and binding upon the executor or other personal representative of such nonresident:
1. Where a nonresident has died before the commencement of an action against him regarding an accident or collision under § 8.01-308 or § 8.01-309 shall be irrevocable and binding upon the executor or other personal representative of such nonresident; or
2. Where a nonresident dies after the commencement of an action against him regarding an accident or collision under § 8.01-308 or § 8.01-309, the action shall continue and shall be irrevocable and binding upon his executor, administrator, or other personal representative with such additional notice of the pendency of the action as the court deems proper.
(Code 1950, §§ 8-67.2, 8-67.4; 1952, c. 384; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 1987, c. 696; 1992, c. 459; 2000, c. 579.)
§ 8.01-311. Continuance of action where service made on Commissioner or Secretary. The court, in which an action is pending against a nonresident growing out of an accident or collision as specified in §§ 8.01-308 and 8.01-309, may order such continuances as necessary to afford such nonresident reasonable opportunity to defend the action.
(Code 1950, § 8-67.3; 1954, c. 547; 1977, c. 617.)
§ 8.01-312. Effect of service on statutory agent; duties of such agent.
A. Service of process on the statutory agent shall have the same legal force and validity as if served within the Commonwealth personally upon the person for whom it is intended. Provided that such agent shall forthwith send by registered or certified mail, with return receipt requested, a copy of the process to the person named therein and for whom the statutory agent is receiving the process. Provided further that the statutory agent shall file an affidavit of compliance with this section with the papers in the action; this filing shall be made in the office of the clerk of the court in which the action is pending.
B. Unless otherwise provided by § 8.01-313 and subject to the provisions of § 8.01-316, the address for the mailing of the process required by this section shall be that as provided by the party seeking service.
(Code 1950, § 8-67.2; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617.)
§ 8.01-313. Specific addresses for mailing by statutory agent.
A. For the statutory agent appointed pursuant to §§ 8.01-308 and 8.01-309, the address for the mailing of the process as required by § 8.01-312 shall be the last known address of the nonresident or, where appropriate under subdivision 1 or 2 of § 8.01-310 B, of the executor, administrator, or other personal representative of the nonresident. However, upon the filing of an affidavit by the plaintiff that he does not know and is unable with due diligence to ascertain any post-office address of such nonresident, service of process on the statutory agent shall be sufficient without the mailing otherwise required by this section. Provided further that:
1. In the case of a nonresident defendant licensed by the Commonwealth to operate a motor vehicle, the last address reported by such defendant to the Department of Motor Vehicles as his address on an application for or renewal of a driver’s license shall be deemed to be the address of the defendant for the purpose of the mailing required by this section if no other address is known, and, in any case in which the affidavit provided for in § 8.01-316 of this chapter is filed, such a defendant, by so notifying the Department of such an address, and by failing to notify the Department of any change therein, shall be deemed to have appointed the Commissioner of the Department of Motor Vehicles his statutory agent for service of process in an action arising out of operation of a motor vehicle by him in the Commonwealth, and to have accepted as valid service such mailing to such address; or
2. In the case of a nonresident defendant not licensed by the Commonwealth to operate a motor vehicle, the address shown on the copy of the report of accident required by § 46.2-372 filed by or for him with the Department, and on file at the office of the Department, or the address reported by such a defendant to any state or local police officer, or sheriff investigating the accident sued on, if no other address is known, shall be conclusively presumed to be a valid address of such defendant for the purpose of the mailing provided for in this section, and his so reporting of an incorrect address, or his moving from the address so reported without making provision for forwarding to him of mail directed thereto, shall be deemed to be a waiver of notice and a consent to and acceptance of service of process served upon the Commissioner of the Department of Motor Vehicles as provided in this section.
B. For the statutory agent appointed pursuant to § 26-59, the address for the mailing of process as required by § 8.01-312 shall be the address of the fiduciary’s statutory agent as contained in the written consent most recently filed with the clerk of the circuit court wherein the qualification of such fiduciary was had or, in the event of the death, removal, resignation or absence from the Commonwealth of such statutory agent, or in the event that such statutory agent cannot with due diligence be found at such address, the address of the clerk of such circuit court.
(Code 1950, § 8-67.2; 1954, c. 333; 1970, c. 680; 1972, c. 408; 1976, c. 26; 1977, c. 617; 1983, c. 467; 1984, c. 780; 1991, c. 672.)
§ 8.01-314. Service on attorney after entry of general appearance by such attorney. When an attorney authorized to practice law in this Commonwealth has entered a general appearance for any party, any process, order or other legal papers to be used in the proceeding may be served on such attorney of record. Such service shall have the same effect as if service had been made upon such party personally; provided, however, that in any proceeding in which a final decree or order has been entered, service on an attorney as provided herein shall not be sufficient to constitute personal jurisdiction over a party in any proceeding citing that party for contempt, either civil or criminal, unless personal service is also made on the party. Provided, further, that if such attorney objects by motion within five days after such legal paper has been so served upon him, the court shall enter an order in the proceeding directing the manner of service of such legal paper.
(Code 1950, § 8-69; 1977, c. 617; 1981, c. 495.)
§ 8.01-315. Notice to be mailed defendant when service accepted by another. No judgment shall be rendered upon, or by virtue of, any instrument in writing authorizing the acceptance of service of process by another on behalf of any person who is obligated upon such instrument, when such service is accepted as therein authorized, unless the person accepting service shall have made and filed with the court an affidavit showing that he mailed or caused to be mailed to the defendant at his last known post-office address at least ten days before such judgment is to be rendered a notice stating the time when and place where the entry of such judgment would be requested.
(Code 1950, § 8-70; 1977, c. 617.)
§ 8.01-316. Service by publication; when available.
A. Except in condemnation actions, an order of publication may be entered against a defendant in the following manner:
1. An affidavit by a party seeking service stating one or more of the following grounds:
a. That the party to be served is (i) a foreign corporation, (ii) a foreign unincorporated association, order, or a foreign unincorporated common carrier, or (iii) a nonresident individual, other than a nonresident individual fiduciary who has appointed a statutory agent under § 26-59, or
b. That diligence has been used without effect to ascertain the location of the party to be served; or
c. That the last known residence of the party to be served was in the county or city in which service is sought and that a return has been filed by the sheriff that the process has been in his hands for twenty-one days and that he has been unable to make service; or
2. In any action, when (i) a pleading states that there are or may be persons, whose names are unknown, interested in the subject to be divided or disposed of; (ii) briefly describes the nature of such interest; and (iii) makes such persons defendants by the general description of “parties unknown”; or
3. In any action, when (i) the number of defendants upon whom process has been served exceeds ten and (ii) it appears by a pleading, or exhibit filed, that such defendants represent like interests with the parties not served with process.
Under subdivisions 1 and 2 of this section, the order of publication may be entered by the clerk of the court. Under this subdivision such order may be entered only by the court.
Every affidavit for an order of publication shall state the last known post office address of the party against whom publication is asked, or if such address is unknown, the affidavit shall state that fact.
B. The cost of such publication shall be paid initially by the party seeking service; however, such costs ultimately may be recoverable pursuant to § 17.1-601. (Code 1950, § 8-71; 1952, c. 522; 1977, c. 617; 1982, c. 384; 1983, c. 467; 1996, c. 352; 1999, c. 353.)
§ 8.01-317. What order of publication to state; how published; when publication in newspaper dispensed with. Except in condemnation actions, every order of publication shall give the abbreviated style of the suit, state briefly its object, and require the defendants, or unknown parties, against whom it is entered to appear and protect their interests on or before the date stated in the order which shall be no sooner than fifty days after entry of the order of publication. Such order of publication shall be published once each week for four successive weeks in such newspaper as the court may prescribe, or, if none be so prescribed, as the clerk may direct, and shall be posted at the front door of the courthouse wherein the court is held also a copy of such order of publication shall be mailed to each of the defendants at the post office address given in the affidavit required by § 8.01-316. The clerk shall cause copies of the order to be so posted, mailed, and transmitted to the designated newspaper within twenty days after the entry of the order of publication. Upon completion of such publication, the clerk shall file a certificate in the papers of the case that the requirements of this section have been complied with. Provided, the court may, in any case where deemed proper dispense with such publication in a newspaper. The cost of such publication shall be paid by the petitioner or applicant.
(Code 1950, § 8-72; 1977, c. 617; 1982, c. 384; 1996, cc. 352, 710.)
§ 8.01-318. Within what time after publication case tried or heard; no subsequent publication required. If after an order of publication has been executed, the defendants or unknown parties against whom it is entered shall not appear on or before the date specified in such order, the case may be tried or heard as to them. When the provisions of § 8.01-317, or, if applicable, the provisions of § 8.01-321, have been complied with, no other publication or notice shall thereafter be required in any proceeding in court, or before a commissioner, or for the purpose of taking depositions, unless specifically ordered by the court as to such defendants or unknown parties.
(Code 1950, § 8-73; 1968, c. 456; 1977, c. 617.)
§ 8.01-319. Publication of interim notice.
A. In any case in which a nonresident party or party originally served by publication has been served as provided by law, and notice of further proceedings in the case is required but no method of service thereof is prescribed either by statute or by order or rule of court, such notice may be served by publication thereof once each week for two successive weeks in a newspaper published or circulated in the city or county in which the original proceedings are pending. If the original proceedings were instituted by order of publication, then the publication of such notice of additional or further proceedings shall be made in the same newspaper. A party, who appears pro se in an action, shall file with the clerk of the court in which the action is pending a written statement of his place of residence and mailing address, and shall inform the clerk in writing of any changes of residence and mailing address during the pendency of the action. The clerk and all parties to the action may rely on the last written statement filed as aforesaid. The court in which the action is pending may dispense with such notice for failure of the party to file the statement herein provided for or may require notice to be given in such manner as the court may determine.
B. Notwithstanding any provision to the contrary in paragraph A hereof, depositions may be taken, testimony heard and orders and decrees entered without an order of publication, when the defendant has been legally served with or has accepted service of process to commence a suit for divorce or for annulling or affirming a marriage, and he or she or the plaintiff:
1. Shall thereafter become a nonresident; or
2. Shall remove from the county or city in which the suit is pending, if a resident thereof, or in which he or she resided at the time of the institution of the suit, or was served with process, without having filed with the clerk of the court where the suit is pending a written statement of his or her intended future place of residence, and a like statement of subsequent changes of residence; or
3. When after such written statement has been filed with the clerk, notice shall have been served upon him or her at the last place of residence given in the written statement as provided by law; or
4. Could not be found by the sheriff of the county or city for the service of the notice, and the party sending the service makes affidavit that he has used due diligence to find the adverse party without success. If such absent party has an attorney of record in such suit, notice shall be served on such attorney, as provided by § 8.01-314.
C. This section shall not apply to orders of publication in condemnation actions.
(Code 1950, § 8-76; 1950, p. 68; 1954, c. 333; 1960, c. 16; 1970, cc. 241, 279; 1977, c. 617; 1978, c. 676; 1979, c. 464; 1982, c. 384.)
§ 8.01-320. Personal service outside of Virginia.
A. Personal service of a process on a nonresident person outside the Commonwealth may be made by: (i) any person authorized to serve process in the jurisdiction where the party to be served is located; or (ii) any person eighteen years of age or older who is not a party or otherwise interested in the subject matter of the controversy and notwithstanding any other provision of law to the contrary, such person need not be authorized by the circuit court to serve process which commences divorce or annulment actions. When the court can exercise jurisdiction over the nonresident pursuant to § 8.01-328.1, such service shall have the same effect as personal service on the nonresident within Virginia. Such service when no jurisdiction can be exercised pursuant to § 8.01-328.1, or service in accordance with the provisions of subdivision 2 a of § 8.01-296 shall have the same effect, and no other, as an order of publication duly executed, or the publication of a copy of process under this chapter, as the case may be; however, depositions may be taken at any time after twenty-one days’ notice of the taking of the depositions has been personally served. The person so served shall be in default upon his failure to file a pleading in response to original process within twenty-one days after such service. If no responsive pleading is filed within the time allowed by law, the case may proceed without service of any additional pleadings, including the notice of the taking of depositions.
B. Any personal service of process outside of this Commonwealth executed in such manner as is provided for in this section prior or subsequent to October 1, 1977, in a divorce or annulment action is hereby validated. Personal service of process outside this Commonwealth in a divorce or annulment action may be executed as provided in this section.
(Code 1950, § 8-74; 1954, c. 333; 1970, c. 552; 1977, c. 617; 1978, c. 90; 1981, c. 6; 1983, c. 402; 1984, c. 18; 1985, c. 177; 1986, c. 263; 1987, c. 594; 1997, c. 754.)
§ 8.01-322. Within what time case reheard on petition of party served by publication, and any injustice corrected. If a party against whom service by publication is had under this chapter did not appear before the date of judgment against him, then such party or his representative may petition to have the case reheard, may plead or answer, and may have any injustice in the proceeding corrected within the following time and not after:
1. Within two years after the rendition of such judgment, decree or order; but
2. If the party has been served with a copy of such judgment, decree, or order more than a year before the end of such two-year period, then within one year of such service.
For the purpose of subdivision 2 of this section, service may be made in any manner provided in this chapter except by order of publication, but including personal or substituted service on the party to be served, and personal service out of the Commonwealth by any person of eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy.
(Code 1950, § 8-78; 1977, c. 617.)
§ 8.01-325. Return by person serving process. Unless otherwise directed by the court, the person serving process shall make return thereof to the clerk’s office within seventy-two hours of service, except when such return would be due on a Saturday, Sunday, or legal holiday. In such case, the return is due on the next day following such Saturday, Sunday, or legal holiday. The process shall state thereon the date and manner of service and the name of the party served. Proof of service shall be in the following manner:
1. If service by sheriff, the form of the return of such sheriff as provided by the Rules of the Supreme Court; or
2. If service by any other person qualified under § 8.01-293, whether service made in or out of the Commonwealth, his affidavit of such qualifications; the date and manner of service and the name of the party served; and stamped, typed, or printed on the return of process, an annotation that the service was by a private server, and the name, address, and telephone number of the server; or
3. In case of service by publication, the affidavit of the publisher or his agent giving the dates of publication and an accompanying copy of the published order.
(Code 1950, §§ 8-52, 8-329; 1977, c. 617; 1996, c. 538.)
Where nothing in the record established that process server was qualified to serve process under Virginia’s procedural requirements, service of process was invalid, and the court did not acquire personal jurisdiction over defendant. Harrel v. Preston, 15 Va.App. 202, 421 S.E.2d 676 (1992).
§ 8.01-326. Return as proof of service. No return shall be conclusive proof as to service of process. The return of a sheriff shall be prima facie evidence of the facts therein stated, and the return of a qualified individual under subdivision 2 of § 8.01-293 shall be evidence of the facts stated therein.
(1977, c. 627.)
§ 8.01-326.1. Service of process or notice on statutory agent; copy to be sent to defendant and certificate filed with court; effective date of service. Any statutory agent who has been served with process or notice shall forthwith mail a copy of such process or notice to the person or persons to be served at the last known post office address of such person and file a certificate of compliance with the papers in the action. Service of process or notice on a statutory agent shall be effective as of the date the certificate of compliance is filed with the clerk of the court in which the action or suit is pending.
(1990, c. 741.)
§ 8.01-327. Acceptance of service of process. Service of process may be accepted by the person for whom it is intended by signing the proof of service and indicating the jurisdiction and state in which it was accepted. However, service of process in divorce or annulment actions may be accepted only as provided in § 20-99.1:1.
(1977, c. 617; 1987, c. 594; 1988, cc. 583, 642.)
§ 8.01-329. Service of process or notice; service on Secretary of Commonwealth.
A. When the exercise of personal jurisdiction is authorized by this chapter, service of process or notice may be made in the same manner as is provided for in Chapter 8 (§ 8.01-285 et seq.) of this title in any other case in which personal jurisdiction is exercised over such a party, or process or notice may be served on any agent of such person in the county or city in this Commonwealth in which that agent resides or on the Secretary of the Commonwealth of Virginia, hereinafter referred to in this section as the “Secretary,” who, for this purpose, shall be deemed to be the statutory agent of such person.
B. When service is to be made on the Secretary, the party or his agent or attorney seeking service shall file an affidavit with the court, stating either (i) that the person to be served is a nonresident or (ii) that, after exercising due diligence, the party seeking service has been unable to locate the person to be served. In either case, such affidavit shall set forth the last known address of the person to be served. When the person to be served is a resident, the signature of an attorney, party or agent of the person seeking service on such affidavit shall constitute a certificate by him that process has been delivered to the sheriff or to a disinterested person as permitted by § 8.01-293 for execution and, if the sheriff or disinterested person was unable to execute such service, that the person seeking service has made a bona fide attempt to determine the actual place of abode or location of the person to be served.
C. Service of such process or notice on the Secretary shall be made by the plaintiff’s, his agent’s or the sheriff’s leaving a copy of the process or notice together with a copy of the affidavit called for in subsection B hereof and the fee prescribed in § 2.1-71.2 in the office of the Secretary in the City of Richmond, Virginia. Service of process or notice on the Secretary may be made by mail if such service otherwise meets the requirements of this section. Such service shall be sufficient upon the person to be served, provided that notice of such service, a copy of the process or notice, and a copy of the affidavit are forthwith mailed by certified mail, return receipt requested, by the Secretary to the person or persons to be served at the last known post-office address of such person, and a certificate of compliance herewith by the Secretary or someone designated by him for that purpose and having knowledge of such compliance, shall be forthwith filed with the papers in the action. Service of process or notice on the Secretary shall be effective on the date the certificate of compliance is filed with the court in which the action is pending.
D. Service of process in actions brought on a warrant or motion for judgment pursuant to § 16.1-79 or § 16.1-81 shall be void and of no effect when such service of process is received by the Secretary within ten days of any return day set by the warrant. In such cases, the Secretary shall return the process or notice, the copy of the affidavit, and the prescribed fee to the plaintiff or his agent. A copy of the notice of the rejection shall be sent to the clerk of the court in which the action was filed.
E. The Secretary shall maintain a record of each notice of service sent to a person for a period of two years. The record maintained by the Secretary shall include the name of the plaintiff or the person seeking service, the name of the person to be served, the date service was received by the Secretary, the date notice of service was forwarded to the person to be served, and the date the certificate of compliance was sent by the Secretary to the appropriate court. The Secretary shall not be required to maintain any other records pursuant to this section.
(Code 1950, § 8-813; 1977, c. 617; 1979, c. 31; 1986, c. 388; 1987, cc. 449, 450, 459; 1990, c. 741; 1998, c. 259.)
VA Rules: Rules of Supreme Court of Virginia
Rule 3A:12. Subpoena.
(a) For Attendance of Witnesses. – A subpoena for the attendance of a witness to testify’ before a court not of record shall be issued by the judge, clerk, magistrate, or Commonwealth’s Attorney. A subpoena for the attendance of a witness to testify before a circuit court or a grand jury shall be issued by the clerk or Commonwealth’s attorney. The subpoena shall (i) be directed to an appropriate officer or officers, (ii) name the witness to be summoned, (iii) state the name of the court and the title, if any, of the proceeding, (iv) command the officer to summon the witness to appear at the time and place specified in the subpoena for the purpose of giving testimony, and (v) state on whose application the subpoena was issued.
No subpoena or subpoena duces tecum shall be issued in any criminal case or proceeding, including any proceeding before any grand jury, which subpoena or subpoena duces tecum is (i) directed to a member of the bar of this Commonwealth or any other jurisdiction, and (ii) compels production or testimony concerning any present or former client of the member of the bar, unless the subpoena request has been approved in all specifics, in advance, by a judge of the circuit court wherein the subpoena is requested after reasonable notice to the attorney who is the subject of the proposed subpoena. The proceedings for approval may be conducted in camera, in the judge’s discretion, and the judge may seal such proceedings. Such subpoena request shall be made by the Commonwealth’s attorney for the jurisdiction involved, either on motion of the Commonwealth’s attorney or upon request to the Commonwealth’s attorney by the foreman of any grand jury.
(b) For Production of Documentary Evidence and of Objects Before a Circuit Court. – Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. Such subpoena shall command either (1) that the individual to whom it is addressed shall appear in person and with the items described either before the court or the clerk or (2) that such individual shall deliver the items described to the clerk. The subpoena may direct that the writing or object be produced at a time before the trial or before the time when it is to be offered in evidence.
Any subpoenaed writings and objects, regardless by whom requested, shall be available for examination and review by all parties and counsel. Subpoenaed writings or objects shall be received by the clerk and shall not be open for examination and review except by the parties and counsel unless otherwise directed by the court. The clerk shall adopt procedures to ensure compliance with this paragraph.
Where subpoenaed writings and objects are of such nature or content that disclosure to other parties would be unduly prejudicial, the court, upon written motion and notice to all patties, may grant such relief as it deems appropriate, including limiting disclosure, removal and copying.
(c) Service and Return. A subpoena may be executed anywhere in the State by an officer authorized by law to execute the subpoena in the place where it is executed. The officer executing a subpoena shall make return thereof to the court named in the subpoena.
(d) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court to which the subpoena is returnable.
(e) Recognizance of a Witness. – If it appears that the testimony of a person is material in any criminal proceeding, a judicial officer may require him to give a recognizance for his appearance.
(f) Photocopying of Subpoenaed Documents. – Subject to the provisions of subsection (b). removal and photocopying of subpoenaed documents by any party or counsel shall be permitted. The court shall direct a procedure for removal, photocopying and return of such documents.
[Amended effective July 1, 2000]