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Challenge to Jurisdiction

Challenge to Jurisdiction

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Published by autumngrace
how to assert want of jurisdiction
how to assert want of jurisdiction

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Categories:Types, Business/Law
Published by: autumngrace on Sep 19, 2013
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11/10/2013

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Challenge to JurisdictionFederal 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 jurisdictio
n 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, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993)."Court must
prove on the record
, all jurisdiction facts related to the jurisdiction asserted." Latana v.Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150."The law provides that once State and Federal
Jurisdiction
has been challenged, it
must be proven
."Main v. Thiboutot, 100 S. Ct. 2502 (1980)."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." HillTop 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. MedicalExaminers, 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." Norwood v. Renfield, 34 C 329; Exparte Giambonini, 49 P. 732."Jurisdiction is fundamental and a judgment rendered
by a court that does not have
 
 jurisdiction
to hearis
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 atribunal is its power to act, and a court must have the authority to decide that question in the firstinstance." Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct.1409."A departure by a court from those recognized and established requirements of law, however closeapparent adherence to mere form in method of procedure, which has the effect of 
depriving one of aconstitutional 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 isdeprived of juris." Merritt v. Hunter, C.A. Kansas 170 F2d 739."The fact that the petitioner was released on a promise to appear before a magistrate for anarraignment, that fact is circumstance to be considered in determining whether in first instance therewas a probable cause for the arrest." Monroe v. Papa, DC, Ill. 1963, 221 F Supp 685.Read US v. Lopez and Hagans v. Levine both void because of lack of jurisdiction. In Lopez the circuit courtcalled 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 youwill find that
 jurisdiction can be challenged at any time
and in the case of Lopez it was a jury trial whichwas 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, toproceed would be in "excess" of jurisdiction which is as well fatal to the State's/ USA 's cause. Broom v.
 
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 Douglas, 75 Ala 268, 57 So 860 the same being jurisdictional facts FATAL to the government's cause ( e.g.see In re FNB, 152 F 64).
 
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 - - - -
Federal Rules of Civil Procedure, Rule 60. Relief from Judgment or Orde
r
>(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.
On motionand upon such terms as are just, the court may relieve a party or a party's legal representative from afinal judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, orexcusable neglect; (2) newly discovered evidence which by due diligence could not have beendiscovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominatedintrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment isvoid;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it isbased has been reversed or otherwise vacated, or it is no longer equitable that the judgment shouldhave 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 morethan one year after the judgment, order, or proceeding was entered or taken. A motion under thissubdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does notlimit 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 orreview, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion asprescribed 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 partyfrom a judgment, order, or proceeding
, or to grant relief to a defendant not actually personally notifiedas 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 asprescribed in these rules or by an independent action. Where necessary parties in government haveactual notice of suit, suffer no prejudice from technical defect in service, and there is justifiable excusefor 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.
 Jordan v. U.S.,
C.A.D.C. 1982,694 F.2d 833, 224 U.S.App.D.C. 267. A liberal construction of this rule is particularly appropriate whereequitable considerations are involved. J
ohnson Waste Materials v. Marshall 
, C.A.5 (Tex) 1980, 611 F.2d593. This rule authorizing a court on motion to relieve a party or a legal representative from a final judgment or order for any reason justifying relief is to be liberally applied in a proper case, that is, in acase involving extraordinary circumstances or extreme hardship.
U.S.S. v. Cirami,
C.A.2 (N.Y) 1977, 563F.2d 26, on remand 92 F.R.D. 483. See, also, Marquette Corp. v. Priester, D.C.S.C.1964, 234 F.Supp. 799;  U.S. v. $3,216.59 in U.S. Currency, D.C.S.C.1967, 41 F.R.D. 433.Subd. (b)(4) to (6) of this rule that courtmay relieve party from final judgment if it is void, if it is no longer equitable that judgment should haveprospective application or for any other reason justifying relief from operation of judgment, is to beliberally construed to carry out purpose of avoiding enforcement of erroneous judgment. Blanchard v. St.Paul Fire & Marine Ins. Co., C.A.5 (Fla.) 1965, 341 F.2d 351, certiorari denied 86 S.Ct. 66, 382 U.S. 829, 15 L.Ed.2d 73.This rule should be liberally construed for purpose of doing substantial justice. In re Hankins, N.D.Miss.1973, 367 F.Supp. 1370.See, also, Fackelman v. Bell, C.A.Ga.1977, 564 F.2d 734; Radack v. Norwegian America Line Agency, Inc., C.A.N.Y.1963, 318 F.2d 538; Triplett v. Azordegan, D.C.Iowa 1977,478 F.Supp. 872; Tann v. Service Distributors, Inc., D.C.Pa.1972, 56 F.R.D. 593, affirmed 481 F.2d 1399.  This rule establishing requirement for granting relief from a final judgment or order is to be given aliberal construction. U. S. v. One 1966 Chevrolet Pickup Truck, E.D.Tex.1972, 56 F.R.D. 459. 7.---- Void  judgment clause: Although this rule providing for relief from judgment is not substitute for appeal andfinality of judgments ought not be disturbed except on very narrow grounds, liberal construction should

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