Poarch Band of Creek Indians Tribal Code
[Includes amendments and additions dated through 2004]
§13 TRIBAL RULES OF CIVIL PROCEDURE
§13-1-1 SCOPE OF RULES
(a) These rules govern procedure in the Tribal Court for all civil cases over which the Tribal Court has jurisdiction. These rules are to be known and cited as the Tribal Rules of Civil Procedure (TRCP). They shall be construed to secure the just, speedy and inexpensive determination of every case. All cases before the Tribal Court shall be conducted in such manner as to do substantial justice between the parties and in accordance with Tribal Law.
(a) AMENDMENT - A Change in a complaint, petition, answer, counter-claim or other court pleading.
(b) ANSWER - The document filed by the party defending against a claim or petition.
(c) CLERK - Court official in charge of the court records.
(d) COMPLAINT AND/OR PETITION - The document filed by the party making a claim or seeking relief from the court.
(e) COUNTERCLAIM - A claim or petition by a defendant against a plaintiff.
(f) COURT - The Tribal Court of the Poarch Band of Creek Indians.
(g) DEFAULT -Failure to defend a case within the time allowed under the rules or failure to appear in Court.
(h) DEFENDANT - The party defending against plaintiff's claim or petition.
(i) EXECUTION - Enforcement of a Judgment.
(j) JUDGMENT - The decision of the Court on a case.
(k) PARTY - a person or firm that is being sued or is suing.
(l) PLAINTIFF - The party initiating a case.
(m) SUBPOENA - An order of the Court requiring a witness to attend and to testify at a trial.
(n) SUMMONS - A document issued by the clerk under the seal of the Court which orders the defendant to admit or deny plaintiff's claim.
(o) WORKING WEEKDAY - A day which is not a Saturday, Sunday or legal holiday under federal law.
§13-1-3 COMPLAINT AND/OR PETITION
(a) A case shall be initiated by filing with the Clerk of the Court a short and plain written statement setting forth the claims of the plaintiff, the relief sought and the reasons thereof.
(b) A case may combine as many claims as exist against a defendant in one case and a case may be made against multiple defendants if such claims exist.
(c) The complaint shall state in the style thereof the names and classification of each party to the case, the court in which the case has been filed and the clerk shall enter a case number on each complaint so filed giving the year in which the case was filed and the number in sequence.
(a) The defendant shall serve an answer to any complaint, cross-claim or a reply to a counterclaim served upon him within twenty (20) days after service of the Summons and Complaint (or other pertinent pleading) on that defendant, except that the Poarch Band of Creek Indians or an officer or agent thereof shall serve an answer to a complaint or to a cross-claim or a reply to a counterclaim within sixty (60) days after the service upon the Chairman or Vice-Chairman of the pleading in which the claim is asserted.
(b) The answer shall be a response to the complaint and shall set forth admissions or denials of each and every claim alleged by the plaintiff.
(c) Any claim which is not specifically denied by a defendant shall be deemed admitted.
[Initials on original document.]
(a) When a claim has been brought against a defendant and that defendant has a claim against the plaintiff which arises out of the transaction or events which are the subject of the case the defendant shall file the counterclaim with his answer and serve a copy of the counterclaim on the plaintiff.
(b) All counter-claims must comply with the rules relating to claims and petitions.
(c) Failure of defendant to make a counterclaim which is based upon transactions or events which give rise to the plaintiff's claim will prevent the defendant from raising the claim.
(a) Amendments to complaints, petition, and counterclaims shall be liberally allowed by the court however no amendments shall be permitted within fourteen (14) days from the date any case is set for trial.
§13-1-7 PLEADINGS AND SERVICE
(a) All complaints, petitions, answers, counterclaims, and amendments shall be known as pleadings.
(b) All pleadings shall be signed by the party initiating the same and shall be filed with the court and served upon all other parties to the case.
(c) Any pleading not served upon a party shall be void as to the party who is not served.
(d) Service upon a party shall be deemed sufficient if mailed to that party or its attorney at their last known mailing address in the United States Mail, first class postage prepaid and each party shall certify that such service has been completed upon each pleading filed with the court.
(e) For the purpose of initiating suit, service upon the Poarch Band of Creek Indians (or its officers or agents) shall be made upon the Tribal Chairman or Vice Chairman.
(a) Upon the filing of a complaint and a copy with any attachments for each defendant the clerk shall issue a summons to each defendant. The summons and a copy of the complaint shall be served upon all parties personally by a member of the Tribal Police Force. When the summons and a copy of the complaint have been served upon a defendant the officer serving process shall endorse that fact on a copy of the summons and return it to the clerk who shall make the appropriate entry on a docket sheet indicating that service has been perfected upon that defendant. The return of the officer serving process in the manner described herein shall be prima facie evidence of the fact of service.
(b) When the officer serving process is unable to personally serve the summons and a copy of the complaint within fourteen (14) days he shall endorse that fact and the reason therefor on the process and return the summons and copy of the complaint to the clerk who shall make the appropriate entry on the docket sheet of this fact. In the event of failure of personal service the clerk shall forthwith notify by mail the attorney of record or if there is no attorney of record the party at whose instance process was issued. He shall enter the fact of notification to the party on the docket sheet.
(c) When the Clerk has entered failure of service on the docket and notification to the party seeking service, the Clerk shall then cause service to be make by posting a copy of the summons and complaint or other pleading on the bulletin board designated for public notices with the Tribal Center. The Clerk shall also cause to be published for three (3) weeks in a newspaper with general circulation in the western end of Escambia County, Alabama, notice of the action which has been filed in the Tribal Court. After the expiration of thirty (30) days from the date of posting and publication whichever occurs first and no answer or appearance has been entered the clerk shall enter a default against the party failing to respond or appear.
§13-1-9 TIME PERIODS
(a) All time periods shall be measured by starting to count on the first day after the complaint or petition was served on the defendant on the first day after the judgment was entered or on the first day after any other event happens which by these rules starts the running of a time period. If the last day is anything other than a working weekday, then the last day is not considered to have arrived until the next working weekday thereafter has arrived. All time periods contained in these rules shall be fourteen (14) days unless otherwise stated.
(a) The parties to each case which is filed in the Tribal Court are encouraged to make voluntary exchanges of information and to settle all cases prior to trial. At the discretion of the Tribal Court each party shall be entitled to propound written questions to all other parties. These written questions shall be known and referred to as interrogatories. Responses in writing must be filed within the time period set forth in these rules. The Court shall have the discretion to limit the number of interrogatories which each party may propound to the other.
§13-1-11 PRETRIAL CONFERENCE
(a) The Tribal Court shall confer with all parties before any trial whenever it appears that such a conference might simplify the issues, reduce trial time, or promote settlement of the case. Pretrial conferences are to be held within the sole discretion of the Tribal Court Judge.
(a) Subpoenas requiring witnesses to attend and testify at the trial of cases shall be issued by the clerk and upon request of any party. All requests for subpoenas must be filed with the Clerk of the Court within ten (10) days of the date the case is set for trial.
(a) At least fourteen (14) days before the case is set for trial the Clerk shall notify the parties of the place and time for trial. At trial all parties whether represented by an attorney or not shall be permitted to put questions to the other party and all witnesses. The Court, in its discretion, may examine any parties or witnesses.
(a) The rules of evidence which shall apply in all cases before the Tribal Court shall be the Alabama Rules of Evidence. McElroy's Alabama Evidence Third Edition shall be considered as authoritative on all questions of evidence which come before the Tribal Court. The Court, may in its discretion, relax the rules of evidence, when in the opinion of the court the ends of justice will be better served thereby.
(a) When a defendant does not answer within the required time or fails to appear when the case is set for trial the Clerk of the Court shall enter a default against the defendant.
(b) When the amount claimed is a sum certain such as a note the clerk may enter a judgment for the amount claimed.
(c) When the amount claimed is not a sum certain such as damage to a car or other relief, the Court, not the Clerk, shall enter the default judgment and the plaintiff must furnish to the court testimony and proof of the amount sought or testimony justifying the relief sought in order to receive a judgment.
(d) The Court, in its discretion, may set aside a default judgment for good and sufficient reason within fourteen (14) days after its entry.
§13-1-16 ENFORCEMENT OF JUDGMENTS
(a) Enforcement of any final judgment, which shall be called "execution", may proceed by any means available under Alabama Law or under the Alabama Rules of Civil Procedure for the enforcement of judgments.
(a) A judgment may be appealed to the Tribal Supreme Court by the filing of a Notice of Appeal in the office of the Clerk of the Tribal Court within fourteen (14) days from the judgment date and by furnishing security for costs incurred in the Tribal Court or by affidavit of substantial hardship approved by the court in place of said security.
(b) Notice of Right to Appeal shall be given by the court to each losing party.
(c) All appeals from the Tribal Court shall be to the Tribal Supreme Court. Any judgment, decree or other final order of the Tribal Court may be appealed to the Tribal Supreme Court.