Process, in law, a term which, in a large sense, signifies the whole proceedings in any action, civil or criminal, real or personal, from the beginning to the end. In a narrower and more technical sense, the term is applied to different stages of the procedure; as is seen in the terms original process, which includes those precepts or writs by which one is called into court; final process, or the forms of procedure by which judgment is carried into execution; and mesne process, which covers the proceedings between the other two, and embraces all proceedings properly so called, all writs for compelling the attendance of jurors or witnesses, and for other collateral purposes. Mesne and final process are sometimes collectively described by the term judicial process, because proceedings in these stages of an action were authorized immediately by the courts, and issued under the hands and seals of their presiding judges. Original process, on the other hand, was so called because it was founded on the original writ, which, issuing out of chancery, and bearing the teste of the sovereign, conferred jurisdiction on the court to which it was addressed, and founded its authority over the matter in controversy.
In the strict technical sense, process is the means employed for bringing the defendant into court to answer to the action. The first step therefore in the ancient procedure was to give the defendant notice of the issue and pendency of the original writ. This notice was given ordinarily by summons, which was a warning to the party to appear at the return of the writ, and was served upon him by the sheriff or some of his messengers. If the defendant disregarded this monition, the next step was a writ of attachment, bidding the sheriff to take certain of his goods to be forfeited if he failed to appear, or to take the pledges of certain sureties of the defendant, who should be amerced in case of his non-appearance. If the sheriff made return that the defendant had no goods whereby he could be attached, or if after attachment he failed to appear, the court issued a writ of capias commanding the sheriff to take the defendant's body. This writ and all others subsequent to it were called judicial, because, as we have already seen, they proceeded immediately from the court, and not from chancery. The proceedings before capias became in time merely formal, and it was usual to sue this out in the first instance upon a supposed return of the sheriff.
The old and somewhat complicated and inconvenient process for the commencement of suits is now abolished in England, and a simple summons supplies the place. - The proceedings in civil suits vary in the different states of the Union, and frequently in different courts of the same state. In some states the old common law procedure, modified more or less by statute, is in use, while in others a code of civil procedure similar to that of New York has been adopted. (See Code, vol. v., p. 10.) The necessary proceedings in the regular course of a civil suit in the New York supreme court, to which a defence is interposed, are as follows: 1. The service, by delivering a copy to the defendant personally, of a summons, which may or may not be accompanied with the complaint, and which requires answer to be made to the complaint within 20 days, and contains a notice, according to the nature of the suit, that in default of answer judgment will be taken for a specified sum, or that application will be made to the court for the relief demanded in the complaint, a. The service within 20 days on plaintiff's attorney by defendant's attorney of a notice of appearance in the suit, with a demand for a copy of the complaint, b.
The service within 20 days by plaintiff's attorney on defendant's attorney of a copy of the complaint, setting forth the grounds of the suit and demanding the appropriate judgment. 2. The service within 20 days on plaintiff's attorney by defendant's attorney of a copy of the answer, containing a denial of the allegations of the complaint, or new matter, such as payment, constituting a defence to the plaintiff's claim, c. If the answer, as is sometimes the case, contains an affirmative claim against the plaintiff, the service within 20 days by plaintiff's attorney on defendant's attorney of a reply interposing a denial or defence to such claim. 3. The service by the attorney of either party desiring to bring on the case for trial, on the attorney for the other party, of a notice of trial at least 14 days before the beginning of the term of court for which the notice is given. 4. The filing with the clerk of the court, at least eight days before the beginning of the term, by the attorney giving notice of trial, of a note of issue containing certain particulars to enable the clerk to place the case on the calendar of the court. 5. The trial, with or without a jury according to the nature of the suit, when the case is reached in its order on the calendar. 6. The filing in the clerk's office by the attorney for the prevailing party of the judgment roll, consisting of a certified copy of the clerk's minutes taken on the trial and a statement of the judgment drawn up by the attorney, together with the summons, complaint, answer, etc. 7. The issuing by the attorney for the prevailing party of an execution to the sheriff, who returns the same within 60 days, satisfied or unsatisfied as the case may be.
When the complaint is served with the summons, a and b are not required. There are numerous collateral and subsidiary proceedings which may, and some of which commonly do occur in a suit. The time for the service of papers may be extended by the court. When the losing party desires to appeal from the judgment, he must upon notice to the other party have a "case" settled by the judge, which shall present the question to be considered by the higher court. A notice of appeal must be served on the prevailing party by the appellant within 30 days after he shall have received written notice of the judgment, and he must also serve on the prevailing party printed copies of the case. Either party may serve on the other a notice of argument and file a note of issue, when the case is placed on the calendar of the appellate court and argument had and judgment entered in due course. The appeal in the first instance is to the general term of three judges, and from their decision another appeal may be taken in similar manner to the court of appeals.
When the appellant desires all proceedings to enforce the judgment to be stayed pending the appeal, he must furnish an undertaking with sureties to the effect that he will pay the judgment with costs and damages if it be affirmed. - In the criminal law process applies in an extensive sense to all those instruments which are used by competent authority for the purpose of bringing a party into court, or of executing the judgment of the law upon him.