Challenge to Jurisdiction
Federal Rules of Civil Procedure, Rule 60. Relief from Judgment or Order below
"Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action." Melo v. US, 505 F2d 1026.
A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void
for lack of personal service on the defendant is a nullity.] Sramek v. Sramek,
"Court must prove
on the record, all jurisdiction facts related to the jurisdiction
asserted." Latana v. Hopper, 102 F. 2d 188;
"The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." Main v.
"Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumed and must be decided." Basso v. Utah Power & Light Co., 495 F 2d 906, 910.
"Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal." Hill Top Developers v. Holiday Pines Service Corp., 478 So. 2d. 368 (Fla 2nd DCA 1985)
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist." Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
"There is no discretion to ignore that lack of jurisdiction." Joyce v. US, 474 F2d 215.
"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F2d 416.
"A universal principle as old as the law is that
a proceedings of a court without
jurisdiction are a nullity and
its judgment therein without effect either on person or property."
"Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio." In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846.
"Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term." Dillon v. Dillon, 187 P 27.
"A court has no jurisdiction to determine its
own jurisdiction, for a basic issue in any case before a tribunal is its
power to act, and a court must have the authority to decide that question in
the first instance." Rescue Army v. Municipal Court of Los Angeles, 171
P2d 8; 331
"A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 937.
"Where a court failed
to observe safeguards, it amounts to denial
of due process of law, court is deprived of juris." Merritt v. Hunter,
"The fact that the
petitioner was released on a promise to appear before a magistrate for an
arraignment, that fact is circumstance to be considered in determining whether
in first instance there was a probable cause for the arrest."
Read US v. Lopez and Hagans v. Levine both void because of lack of jurisdiction. In Lopez the circuit court called it right, and in Hagans it had to go to the Supreme court before it was called right, in both cases, void.
Challenge jurisdiction and
motion to dismiss, right off the bat. If you read the Supreme Court cases you
will find that jurisdiction can be
challenged at any time and in the case of Lopez it was a jury trial which
was declared void for want of jurisdiction. If it [jurisdiction] doesn't exist,
it can not justify conviction or judgment. ...without which power
(jurisdiction) the state CANNOT be said to be "sovereign." At best,
to proceed would be in "excess" of jurisdiction which is as well
fatal to the State's/
- - - -
Federal Rules of Civil Procedure, Rule 60. Relief from Judgment or Order
>(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., Sec. 1655, or to set aside a judgment for fraud upon the court.
Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill or review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
- - - - -
This rule does not limit the power of a court to entertain
an independent action to relieve a party from a judgment, order, or proceeding, or to grant
relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud
upon the court. Writs of coram
nobis, coram vobis, audita querela, and bills of review and bills in the
nature of a bill of review, are abolished, and the procedure for obtaining any
relief from a judgment shall be by motion as prescribed in these rules or by an
independent action. Where necessary parties in government have actual notice of
suit, suffer no prejudice from technical defect in service, and there is justifiable
excuse for failure to serve properly, courts should not construe rule 4 of
these rules governing service so rigidly, or construe this rule governing
relief from orders so narrowly, as to prevent relief from dismissal, especially
where dismissal signals demise of all or some of plaintiff's claims.
A claim for relief from judgment on basis of "any other reason justifying relief from operation of the judgment" is cognizable where there is evidence of extraordinary circumstances or where there is evidence of extreme hardship or injustice, and, once extraordinary circumstances or hardship is found, this rule is to be liberally applied to accomplish justice. U. S. v. McDonald, N.D.Ill.1980, 86 F.R.D. 204.
Attorney's motion for reconsideration on ground that court lacked jurisdiction to order him to pay court reporter could be entertained under rule governing relief from judgment and was not subject to time constraints of rule governing motion to amend judgment. U.S. v. 789 Cases of Latex Surgeon Gloves, C.A.1 (Puerto Rico) 1993, 13 F.3d 12
Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).
A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).
A void judgment is one which from the beginning was complete nullity and without any legal effect, Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D. Fla. 1980). Void judgment is one that, from its inception, is complete nullity and without legal effect, Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill 1992).
Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986).
Judgment is a void judgment if court that rendered judgment
lacked jurisdiction of the subject matter, or of the parties, or acted in a
manner inconsistent with due process, Fed. Rules
Civ. Proc., Rule 60(b)(4), 28
U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v.
A void judgment is one which, from its inception, was, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985).
A void judgment is one which, from its inception, was a complete nullity and without legal effect, Lubben v. Selevtive Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972).
A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree – Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985).
A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan, 234 P.2d 319 (Cal.App. 2 Dist. 1951). Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects, Ward v. Terriere, 386 P.2d 352 (Colo. 1963).
A void judgment is a
simulated judgment devoid of any potency because of jurisdictional defects
only, in the court rendering it and defect of jurisdiction may relate to a
party or parties, the subject matter, the cause of action, the question to be
determined, or relief to be granted, Davidson
Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari
denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (
Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved and such a judgment may be attacked at any time, either directly or collaterally,
People v. Wade, 506 N.W.2d 954
Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved; such judgment may be attacked at any time, either directly or collaterally
People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990). Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).
Void judgment is one which, from its inception is complete nullity and without legal effect In re Marriage of Parks, 630 N.E. 2d 509 (Ill.App. 5 Dist. 1994). Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity People v. Rolland 581 N.E.2d 907, (Ill.App. 4 Dist. 1991).
Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983).
A void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of Stavos, 609 N. E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993).
Void judgment is one that from its inception is a complete nullity and without legal effect Stidham V. Whelchel, 698 N.E.2d 1152 (Ind. 1998).
Relief form void judgment is available when trial court lacked either personal or subject matter jurisdiction, Dusenberry v. Dusenberry, 625 N.E. 2d 458 (Ind.App. 1 Dist. 1993).
Void judgment is one
rendered by court which lacked personal or subject matter jurisdiction or acted
in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of Marriage of Hampshire, 869 P.2d 58 (
Judgment is void if court that rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time, Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994).
A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process In re Estate of Wells, 983 P.2d 279, (Kan. App. 1999).
Void judgment is one
rendered in absence of jurisdiction over subject matter or parties 310 N.W. 2d
A void judgment is one which has merely semblance, without some essential element, as when court purporting to render is has no jurisdiction, Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954).
A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment, Henderson v. Henderson, 59 S.E. 2d 227, (N.C. 1950).
Void judgment is one entered by court without jurisdiction to enter such judgment, State v. Blankenship 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996).
Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990).
Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendant’s bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment Com. V. Miller, 150 A.2d 585 (Pa. Super. 1959).
A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment, Underwood v. Brown, 244 S.W. 2d 168 (Tenn. 1951).
A Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render judgment, and want of jurisdiction may be either of person, subject matter generally, particular question to be decided or relief assumed to be given, State ex rel. Dawson v. Bomar, 354 S.W. 2d 763, certiorari denied, (Tenn. 1962).
A void judgment is one in
which the judgment is facially invalid because the court lacked jurisdiction or
authority to render the judgment, State
v. Richie, 20 S.W.3d 624 (
A void judgment is one which shows on face of record the want of jurisdiction in court assuming to render judgment, which want of jurisdiction may be either of the person, or of the subject matter generally, or of the particular question attempted to decided or relief assumed to be given, Richardson v. Mitchell, 237 S.W. 2d 577, (Tenn.Ct. App. 1950).
Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed, City of Lufkin v. McVicker, 510 S.W. 2d 141 (Tex. Civ. App. – Beaumont 1973).
A void judgment, insofar as it purports to be pronouncement of court, is an absolute nullity, Thompson v. Thompson, 238 S.W.2d 218 (Tex.Civ.App. – Waco 1951).
A void judgment is
one that has been procured by extrinsic or collateral fraud or entered by a
court that did not have jurisdiction over the subject matter or the
parties." Rook v. Rook, 233
A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, State ex rel. Turner v. Briggs, 971 P.2d 581 (Wash. App. Div. 1999).
A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L., 733 N.E.2d 846, (Ill.App. 1 Dist. 2000). Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties, Cockerham v. Zikratch, 619 P.2d 739 (Ariz. 1980).
Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterally, Irving v. Rodriquez, 169 N.E.2d 145, (Ill.app. 2 Dist. 1960). Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record, Crockett Oil Co. v. Effie, 374 S.W.2d 154 ( Mo.App. 1964).
Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment hat was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995). Void order may be attacked, either directly or collaterally, at any time, In re Estate of Steinfield, 630 N.E.2d 801, certiorari denied, See also Steinfeld v. Hoddick, 513 U.S. 809, (Ill. 1994).
Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court, People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994).
While voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus, Sanchez v. Hester, 911 S.W.2d 173, (Tex.App. – Corpus Christi 1995). Arizona courts give great weight to federal courts’ interpretations of Federal Rule of Civil Procedure governing motion for relief from judgment in interpreting identical text of Arizona Rule of Civil Procedure, Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998).
When rule providing for relief from void judgments is
applicable, relief is not discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d
Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278.
A “void” judgment as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by ).
No statute of limitations or repose runs on its holdings,
the matters thought to be settled thereby are not res judicata, and years
later, when the memories may have grown dim and rights long been regarded as
vested, any disgruntled litigant may reopen the old wound and once more probe
its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF
On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39
In Stoesel v. American Home, 362 Sel. 350, and 199 N.E. 798 (1935), the
court ruled and determined that, “Under
There is no time limit when a judgment is void:
Precision Eng. V. LPG,
C.A. 1st (1992) 953 F.2d 21 at page 22, Meadows v. Dominican Republic CA 9th (1987) 817 F.2d at
page 521, In re: Center Wholesale, Inc. C.A.
10th (1985) 759 F.2d 1440 at page 1448, Misco Leasing v. Vaughn CA 10th (1971) 450 F.2d 257, Taft v. Donellen C.A. 7th (1969) 407 F.2d 807, and Bookout v. Beck CA 9th (1965)
354 F.2d 823. See also, Hawkeye Security
Ins. V. Porter, D.C. Ind. 1982, 95 F.R.D. 417, at page 419, Saggers v. Yellow Freight D.C. Ga.
(1975) 68 F.R.D. 686 at page 690, J.S. v.
Melichar D.C. Wis. (1972) 56 F.R.D. 49, Ruddies
v. Auburn Spark Plug. 261 F. Supp. 648, Garcia
- - - - -
>A motion to set aside a
judgment as void for lack of jurisdiction is not subject to the time limitations of Rule 60(b). See Garcia v.
Garcia, 712 P.2d 288 (
>A judgment is void,
and therefore subject to relief under Rule 60(b)(4), only if the court that
rendered judgment lacked jurisdiction or in circumstances in which the court's
action amounts to a plain usurpation of power constituting a violation of due
>Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'" Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)).
>In order for a judgment
to be void, there must be some jurisdictional defect in the court's
authority to enter the judgment, either because the court lacks personal
jurisdiction or because it lacks jurisdiction over the subject matter of the
suit. Puphal v. Puphal, 105
>A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. Thus, if a court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make particular order or a judgment is akin to lack of subject matter jurisdiction and is subject to collateral attack. 46 Am. Jur. 2d, Judgments § 25, pp. 388-89.
>"A court cannot confer jurisdiction where
none existed and cannot make a void proceeding valid. It is clear and
well established law that a void order can be challenged in any
court", OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204
>"Jurisdiction, once challenged, cannot
be assumed and must be decided."
>"The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v Lavine 415 U. S. 533.
Though not specifically alleged, defendant's challenge to subject matter jurisdiction implicitly raised claim that default judgment against him was void and relief should be granted under Rule 60(b)(4). Honneus v. Donovan, 93 F.R.D. 433, 436-37 (1982), aff'd, 691 F.2d 1 (1st Cir. 1982).
>"A judgment is void
if the court acted in a manner inconsistent with due process. A void
judgment is a nullity and may be vacated at any time." 261
>A judgment obtained
without jurisdiction over the defendant is void. Overby v. Overby , 457
S.W.2d 851 (
>Although Rule 60(b)(4)
is ostensibly subject to the "reasonable" time limit of Rule 60(b),
at least one court has held that no time
limit applies to a motion under the Rule 60(b)(4) because a void
judgment can never acquire validity through laches. See
Challenge to Jurisdiction
Challenging jurisdiction is one of the best defenses you can make, because if you use the right argument it is almost impossible for you to loose!
If they attempt to tell you that you can't question their jurisdiction you can easily shut them up with these court rulings!
Are we on the record? I don't say anything further until we are.
Where is the competent fact witness? Where is the damaged party?
Who brings the claim? Who is underwriting this action?
As a man, as an accused by law, I come with the presumption of innocent and I can go with that.
Hey, as keeper of the records for the thing, I'm willing to plead the defendant guilty upon validated proof of claim.
Where is the Form 1099OID?
Who are you people and why do you deem yourselves better than me?
Equality under the Law is paramount and mandatory by law.
I am unrepresented, I don't "do Attorneys" as I have found them to be injurious to my freedom, life, liberty and pursuit of happiness.
Am I under arrest or am I free to go?
I am a man, not a corporation or a legal "person" nor am I a surety for one.
I am a man. I am competent. I am here under duress. I do not consent to this matter.
I reserve all rights at all times in all places and I waive no rights at any time or in any place. I do waive benefit privilege.
If I am here at all, I am here in special appearance to challenge jurisdiction and to have this matter dismissed.
I see a yellow fringe around your flag which clearly advertises "admiralty matters settled here" - so again I say, where is the contract?
Where is the contract wherein I knowingly and willingly, with full disclosure, consented or otherwise agreed to be treated this way?
I believe this court lacks a jurisdiction. I want to see the supposed jurisdiction that was duly placed into evidence.
Can this court move on facts not in evidence ?
I do not understand the nature and cause of the accusation with regard to the elements of personal jurisdiction, venue, underwriting and the nature of the action until the prosecution properly alleges them.
I cannot rebut an unstated presumption.
I am therefore unable to plea to the charges until I have had an opportunity to raise a meaningful defense against the elements.