Opinion No. 1988-202

Owen T. Miller

Attorney General of Arkansas — Opinion
September 28, 1988

STEVE CLARK, Attorney General

The Honorable Owen T. Miller State Representative 602 Liberty Marked Tree, AR 72365

Dear Representative Miller:

This is in response to your request for an opinion regarding Arkansas Code of 1987 Annotated 21-6-307(a)(1) and (4). You have asked the following question in this regard:

If a summons is received by the Sheriff’s Office and an overt attempt to locate the party being summoned and to serve the summons is made for several days and the paper is called back by the attorney who issued it or the paper is returned because the party was unable to be located by the Sheriff, then is the Sheriff allowed to charge the “Return” fee of $10.00?

Section 21-6-307(a) authorizes certain fees to be charged by the sheriff, including the following under subsections (1) and (4):

1) For serving every summons, capias, scire facias, attachments, writ of garnishment, writ of injunction, or subpoena ……. $15.00.
4) For every return of a writ, summons, or subpoena, original or judicial ……. $10.00.

The term “return” is not defined under A.C.A. 21-6-307. However, Black’s Law Dictionary (5th Ed. 1979) offers the following definition:

The act of a sheriff . . . in delivering back to the court a writ, notice, process of other paper, which he was required to serve or execute, with a brief account of his doings under the mandate, the time and mode of service or execution, or his failure to accomplish it, as the case may be. Also, endorsement made by the officer upon the writ or other paper, stating what he has done under it, the time and mode of service, etc.

It is reasonable to conclude that the word “return” as it appears in 21-6-304(4) is used in the context reflected in the foregoing definition. See also Rule 4 of the Arkansas Rules of Civil Procedure.

It is apparent that the failure to serve the party being summoned is not determinative, so long as the sheriff delivers the summons back to the court or to the requesting party (since 21-6-307(4) refers to an “original or judicial” writ, summons, or subpoena), indicating what transpired. The sheriff is entitled to the $10.00 fee if this “return” is accomplished. If, as indicated in your question, the attorney cancels the summons before the paper is returned, it is my opinion that the fee cannot be charged.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.