EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT
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).
VOID JUDGMENTS BUT WERE AFRAID TO ASK!
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 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 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. U.S., 620 F.Supp. 892 (D.S.C. 1985).
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, 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 (Colo. 1958).
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 (Ill. 1987).
Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked personal jurisdiction or acted in manner inconsistent with due process of law Eckel v. MacNeal, 628 N.E. 2d 741 (Ill. App. Dist. 1993).
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 from 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 ( Kan. 1997).
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 502, (Minn. 1981).
A void judgment is one rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973).
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 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 (Tenn. 2000).
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 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 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 court that did to have jurisdiction over subject matter or the parties, Rook v. Rook, 353 S.E. 2d 756, (Va. 1987).
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 1307, (Colo. 1994).
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.
“It is a fundamental precept that federal courts are courts of limited jurisdiction, constrained to exercise only authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, 147 F.3d 347, 352 (4th Cir.1998) (citations omitted). A federal court cannot assume jurisdiction exists. Rather, the plaintiff is required to specifically plead adequate facts in its complaint to sufficiently establish the court has jurisdiction. Norton v. Larney, 266 U.S. 511, 515-16 (1925). A defendant may move for dismissal when a complaint contains a jurisdictional defect. Fed.R.Civ.P. 12(b)(1).
A "void judgment" as we all know, grounds no rights, forms no defense to actions taken there under, 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 MICHIGAN, 92 N.W.2d 604, 354 Mich. 97. On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain. Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469.
What about default judgments?
Anybody you know been subjected to a default judgment? If you ask an attorney or a judge if there is relief from a default judgment, they will ask if you got notice. They will claim if you got notice, there's nothing you can do 'cause you had the opportunity and didn't answer so you lost - tough luck! This just goes to show how little attorneys and judges know about real law.EVEN A DEFAULT JUDGMENT MUST BE PROVED!
Oklahoma's law on default judgments =
Trial court could not award damages to plaintiff, following default judgment, without requiring evidence of damages. Razorsoft, Inc. v. Maktal, Inc., Okla.App. Div. 1, 907 P.2d 1102 (1995), rehearing denied.
A party is not in default so long as he has a pleading on file which makes an issue in the case that requires proof on the part of the opposite party in order to entitle him to recover. Millikan v. Booth, Okla., 4 Okla. 713, 46 P. 489 (1896).
Proof of or assessment of damages upon petition claiming damages, it is error to pronounce judgment without hearing proof or assessing damages. Atchison, T. & S.F. Ry. Co. v. Lambert, 31 Okla. 300, 121 P. 654, Ann.Cas.1913E, 329 (1912); City of Guthrie v. T. W. Harvey Lumber Co., 5 Okla. 774, 50 P. 84 (1897).
In the assessment of damages following entry of default judgment, a defaulting party has a statutory right to a hearing on the extent of unliquidated damage, and encompassed within this right is the opportunity to a fair post-default inquest at which both the plaintiff and the defendant can participate in the proceedings by cross-examining witnesses and introducing evidence on their own behalf. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999).
A default declaration, imposed as a discovery sanction against a defendant, cannot extend beyond saddling defendant with liability for the harm occasioned and for imposition of punitive damages, and the trial court must leave to a meaningful inquiry the quantum of actual and punitive damages, without stripping defendant of basic forensic devices to test the truth of plaintiff's evidence. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999).
Fracture of two toes required expert medical testimony as to whether such injury was permanent so as to allow damages for permanent injury, future pain, and future medical treatment on default judgment, and such testimony was not within competency of plaintiff who had no medical expertise. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991).
Rendition of default judgment requires production of proof as to amount of unliquidated damages. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991).
When face of judgment roll shows judgment on pleadings without evidence as to amount of unliquidated damages then judgment is void. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991).
In a tort action founded on an unliquidated claim for damages, a defaulting party is deemed to have admitted only plaintiff's right to recover, so that the court is without authority or power to enter a judgment fixing the amount of recovery in the absence of the introduction of evidence. Graves v. Walters, Okla.App., 534 P.2d 702 (1975).
Presumptions which ordinarily shield judgments from collateral attacks were not applicable on motion to vacate a small claim default judgment on ground that court assessed damages on an unliquidated tort claim without first hearing any supporting evidence. Graves v. Walters, Okla.App., 534 P.2d 702 (1975).
Rule that default judgment fixing the amount of recovery in absence of introduction of supporting evidence is void and not merely erroneous or voidable obtains with regard to exemplary as well as compensatory damages. Graves v. Walters, Okla.App., 534 P.2d 702 (1975).
Where liability of father for support of minor daughter and extent of such liability and amount of attorney's fees to be allowed was dependent on facts, rendering of final judgment by trial court requiring father to pay $25 monthly for support of minor until minor should reach age 18 and $100 attorney's fees without having heard proof thereof in support of allegations in petition was error. Ross v. Ross, Okla., 201 Okla. 174, 203 P.2d 702 (1949).
Refusal to render default judgment against codefendant for want of answer was not error, since defendants and court treated answer of defendant on file as having been filed on behalf of both defendants, and since plaintiff could not recover without offering proof of damages and offered no such proof. Thomas v. Williams, Okla., 173 Okla. 601, 49 P.2d 557 (1935).
Under R.L.1910, §§ 4779, 5130 (see, now, this section and § 2007 of this title), allegation of value, or amount of damages stated in petition, were not considered true by failure to controvert. Cudd v. Farmers' Exch. Bank of Lindsay, Okla., 76 Okla. 317, 185 P. 521 (1919).
Hearing Trial court's discovery sanction barring defendant from using cross-examination and other truth-testing devices at post-default non-jury hearing on plaintiff's damages violated due process. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999).
If you or anybody you know has a default judgment, go to the courthouse and check the record. If they failed to prove up their claim-that default judgment is void ab initio subject to vacation without time limitation!
The really big deal, the real issue in void judgments is, tah, dum, de dum, SUBJECT MATTER JURISDICTION!!!! Remember, subject matter can never be presumed, never be waived, and cannot be constructed even by mutual consent of the parties. Subject matter jurisdiction is two part: the statutory or common law authority for the court to hear the case and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings.
Even if a court (judge) has or appears to have subject matter jurisdiction, subject matter jurisdiction can be lost. Major reason why subject matter jurisdiction is lost:
(1) fraud upon the court, In re Village of Willowbrook, 37 Ill.App.3d 393
(2) a judge does not follow statutory procedure, Armstrong v Obucino, 300
Ill 140, 143 (1921),
(3) unlawful activity of a judge or undisclosed conflict of interest. Code
of Judicial Conduct,
(4) violation of due process, Johnson v Zerbst, 304 U.S. 458, 58 S.Ct. 1019
(1938); Pure Oil Co. v City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289
(1956); Hallberg v Goldblatt Bros., 363 Ill 25 (1936),
(5) if the court exceeded its statutory authority, Rosenstiel v Rosenstiel,
278 F.Supp. 794 (S.D.N.Y. 1967),
(6) any acts in violation of 11 U.S.C. 362(a), (the bankruptcy stay) In re
Garcia, 109 B.R. 335 (N.D. Illinois, 1989),
(7) where no justiciable issue is presented to the court through proper
pleadings, Ligon v Williams, 264 Ill.App.3d 701, 637 N.E.2d 633 (1st Dist.
(8) where a complaint states no cognizable cause of action against that
party, Charles v Gore, 248 Ill.App.3d 441, 618 N.E. 2d 554 (1st Dist
(9) where any litigant was represented before a court by a person/law firm
that is prohibited by law to practice law in that jurisdiction,
(10) when the judge is involved in a scheme of bribery (the Alemann cases,
Bracey v Warden, U.S. Supreme Court No. 96-6133 (June 9, 1997),
(11) where a summons was not properly issued,
(12) where service of process was not made pursuant to statute and Supreme
Court Rules, Janove v Bacon, 6 Ill.2d 245, 249, 218 N.E.2d 706, 708
(13) where the statute is vague, People v Williams, 638 N.E.2d 207 (1st
(14) when proper notice is not given to all parties by the movant, Wilson v.
Moore, 13 Ill.App.3d 632, 301 N.E.2d 39 (1st Dist. 1973),
(15) where an order/judgment is based on a void order/judgment, Austin v.
Smith, 312 F.2d 337, 343 (1962);English v English, 72 Ill.App.3d 736,
393 N.E.2d 18 (1st Dist. 1979), or
(16) where public policy is violated, Martin-Tregona v Roderick, 29
Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).
SUMMARY OF THE LAW OF VOIDS
Before a court (judge) can proceed judicially, jurisdiction must be complete consisting of two opposing parties (not their attorneys - although attorneys can enter an appearance on behalf of a party, only the parties can testify and until the plaintiff testifies the court has no basis upon which to rule judicially), and the two halves of subject matter jurisdiction = the statutory or common law authority the action is brought under (the theory of indemnity) and the testimony of a competent fact witness regarding the injury (the cause of action). If there is a jurisdictional failing appearing on the face of the record, the matter is void, subject to vacation with damages, and can never be time barred. A question which naturally occurs: "If I vacate avoid judgment, can they just come back and try the case again?" Answer: A new suit must be filed and that can only be done if within the statute of limitations.
"Lack of jurisdiction cannot be corrected by an order nunc pro tunc. The only proper office of a nunc pro tunc order is to correct a mistake in the records; it cannot be used to rewrite history." E.g., Transamerica Ins. Co. v. South, 975 F.2d 321, 325-26 (7th Cir. 1992); United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir. 1990); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987). And Central Laborer's Pension and Annuity Funds v. Griffee, 198 F.3d 642, 644(7th cir. 1999).
The number of void judgments on the books in America's courthouses is so great, there is no practical way to estimate how many there are.
IF EVERY VOID JUDGMENT WAS VACATED WITH DAMAGES, IT WOULD REPRESENT
THE GREATEST SHIFT IN MATERIAL WEALTH IN THE HISTORY OF THE WORLD!
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