I was issued a void judgment from a circuit court judge over a year ago. I now reside in a different county. Can I file a motion to vacate the judge's order in this new county's circuit court?
Country relating to Question: United States
State (if USA): Missouri
I have put in a motion with the original judge raising the issue of his lack of jurisdiction to enter the order in the first place. He refused to look at the information. Judgment was made in Cass County, Missouri, and I now live in Jackson County, Missouri. According to Rule 74.06 (d) of the Mo Supreme Court Rules I believe I may be able to file an independent action in my new county regarding this order. I need help figuring out if this is right and how to proceed.
Hello and thank you for the question. I am sorry to read of this dilemma. The motion would be filed in the court and county where the judgment was issued. Filing in another county can be attempted, but the other side may move to dismiss for improper venue or the court may do it on its own.
A void judgment can be challenged in any court at any time, per my understanding. If this is true, and I am a resident of jackson county, shouldn't I be able to bring an independent action in jackson county? I need to understand how to proceed, as the original judge in the case is unwilling to accept the fact that he is wrong, and the appeals court is telling me I can't bring a motion to vacate there. It's been over a year, so the only way I can get this done is through a motion to vacate through my new county or an extraordinary writ. Am I reading the rules correctly, that the power of the court to entertain an independent action is not limited by Rule 74.06? Could I bring an independent action, possibly through a petition in the Circuit Court? Would it be in the same division (probate) as the original, or would it be brought in civil?
You can either commence a new petition in the new county or go to the old county where judgment issued and make a motion to vacate using the assigned case number.
Can you tell me what type of petition it should be? The order originated in Cass County Probate division, so would I need to bring the petition in the probate division of the new county? There is no existing case in Jackson, so I'm assuming a motion wouldn't work and it would need to be in petition form. Any suggestions on the title? "Petition to Vacate Void Judgment" or something along those lines? And can you clarify what "appears property before the court" means?
It would be a petition seeking a Declaratory Judgment that the judgment issued on __________, is void and null. Petition to for declaratory relief would be a proper name. Give me the contest for "appears property before the court"
Okay, but a declaratory judgment sounds like something that would go above the circuit court. Are you sure that another circuit court could issue a declaratory judgment against a judgment made by a different judge of a circuit court? Context is as follows: 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). I'm getting hung up on "properly before the court". I'm reading this as long as I somehow get before a judge for a hearing, I can attack the judgment as void, and per Rule 74.06 I'm understanding that the circuit courts are empowered to hear an independent action regarding a void judgment. Is that correct?
The other county may elect not to rule on it. It would be more efficient and pragmatic to pursue a motion in the court where judgment issued.
So then would the motion have to go before the original judge? Or is there a way to get it before another judge? Cass County is a good ol' boy system, and all the judges are buddies. I've already tried raising the issue of void to the judge and he won't hear it, so if I put in a motion to vacate he won't even think about it. Appeals court won't help, saying all they hear are appeals and writs, and I don't know how else to do this. These are the options I may have, and if you could please let me know which of these sounds the most viable I would appreciate it:1. File petition to vacate (as I believe declaratory judgment is not for circuit courts, please confirm) in my new county, where it may or may not be the proper venue2. File petition to vacate in Cass county, where the original judge won't listen.3. Try to file in the Appellate Court, but I don't believe they can do declaratory judgments either (please elaborate)4. Deal with it, and violate federal law.Can you please elaborate on "appears properly before the court"?
I would pursue option 1. Appears properly before the court generally refers to standing, and if you are a party to the judgment, you would be appearing property in seeking this relief.
Almost done: When rule providing relief from void judgments is applicable, relief is mandatory and is not discretionary. (See In re Marriage of Markowski, 50 Wash.App. 633, 635, 749 P2d 745 (1988); Brickum Inv. Co. v. Vernham Corp., 46 Wash.App. 517, 520, 731 P2d 533 (1987); Orner v. Shalala, 30 F.3d 1307 (Colo.1994).)Can you please elaborate what the "relief is mandatory and is not discretionary" part? Does that mean that if I appear before the court, and I have all of the evidence showing that the judgment is void, the court can't say "send this to someone else"? Or is it just meaning that if the evidence proves it the court has no choice? If the court agrees that the judgment is void, but doesn't believe it has jurisdiction, doe the court still have to grant relief? Also, the caselaw cite in bold: does the 30F.d mean it's federal?
It means the court would need to vacate the judgment. It almost always does so. Have your evidence ready and appear for argument when scheduled. Good luck and happy 4th. Kindly favorably rate the answer.
Thank you. If I have followup questions will I need to pay again, or can I add additional replies with no charge?Sorry, forgot to clarify: I know you gave a suggestion involving a declaratory judgment, but what should I title the petition? I'm thinking "Petition for Relief from Void Judgment" or "Petition to Vacate Void Judgment". And one thing that wasn't clear: what division would I file in? The order originated in Probate, so is that where it would go in the new county? Or is there another division that would handle it?
You can follow up for free if on same question. Petition for declaratory relief. Better to pursue motion to vacate as discussed.
Okay. I will accept your answers, but I do have another question. If there isn't an existing case, can I even use a motion? There is no case number XXXXX my new county, so I thought I would need a petition just to get the case established in the first place. In your experience, can you bring a motion if there isn't already a case established? It would be like filing a motion out of the blue. And how about this for a title?Motion [or Petition] and Declaration to Vacate Void JudgmentORMotion [or Petition] for Declaration to Vacate Void Judgment
Motion in existing case where judgment issued. Otherwise new case and new petition seeking essentially same relief!
Okay, and you didn't answer what division for a new case. Should it be brought in the new county's probate division because it originated as a probate case in the old county? Or would there be another division?Thank you!
Probate division would be best!!
Licensed attorney helping individuals and businesses
Thank you, XXXXX XXXXX a great 4th of July!
My pleasure. Enjoy the holiday. Please favorably rate my answer.
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