Personal Injury Law
Personal Injury Law Questions? Ask Personal Injury Lawyers.
to bonifie according to rules of evidence you would need them from public record the subpoena is something the court is motioned to do
if its a company like att i would serve it to them then motion the court for time to obtain the record
ok if your answering a complaint were your entering a counter claim at that time would you file the subpoena?
when citing authorities is it bad to cite those who have dissenting opinions
but can the judge claim that its distinguished because of the dissent
what if the proposition of law that the court brings out is on point for your case but the court found that being applied to the case at it was not applicable if you cite that will that effect you in your case
im sorry i meant to say the court brought the law or proposition of law but found it didn't apply to the facts of the case of that party, if the proposition of law that the court brought forward is on point in your case, would it be bad to cite that case law if the court felt that the law was not applicable to the other party, or it doesn't matter due to it being a case by case review
You want a case that supports your position based on the facts and how the law is applied to those facts.
But if the majority opinion states a point of law based on facts that are similar to yours, then you should be on solid grounds to cite it.
like example the court states to protect the due process rights of the party's the guardian ad litem must be cross-examined or made available to be cross-examined however the court found that according to the record the gal was cross-examined so there was no abuse of discretion or violation of due process, could i still cite the proposition of the gal being cross-examined is substantive right of due process and not to make him available would be a violation of due process
if a point in my contention is that a duty of a court is to protect the constitutional rights of the people could i used a citation like this. "when it appears that one is deprived of his liberty without due process of law in violation of the Constitution of the United States. Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by that Constitution". Mooney v. Holohan, 294 US 103 - Supreme Court 1935
ok i want to get specific this case was speaking about habeous corpus, however; mentioned it as a constitutional right and spoke in the plural, stating that every constitutional right must be guarded,
"rests the obligation to guard and enforce every right secured by that Constitution".Mooney v. Holohan, 294 US 103 - Supreme Court 1935
can it be inferred that this means all constitutional rights , and that this can be used to show that it is a courts duty to uphold every constitutional right?
like if im talking about the right to cross-examine the guardian ad litem this would be a 6th amendment substantive right of due process, and it is enforced upon the states by the 14 amendment, and by this being a derivative of a constitution right it is the duty of the courts to uphold it? would that be correct to state it like that
but is it far off in a manner that a judiciary would think that this has nothing to do with the subject matter and you don't understand the law.
like beginning with tech then to main issues, now how would you define that, would it be starting with issue that may be errors in rules then move to procedural errors and then fundamental errors. also every procedural error is not from the branch of due process
but; is that correct, all procedural errors are not errors of due process but some are?
can you explain this pertaining to rule 60 b cornell law says section (e) states:(e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela. then it says further down,If these various amendments, including principally those to Rule 60(b), accomplish the purpose for which they are intended, the federal rules will deal with the practice in every sort of case in which relief from final judgments is asked, and prescribe the practice. With reference to the question whether, as the rules now exist, relief by coram nobis, bills of review, and so forth, is permissible, the generally accepted view is that the remedies are still available, although the precise relief obtained in a particular case by use of these ancillary remedies is shrouded in ancient lore and mystery. See Wallace v. United States(C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712; Fraser v. Doing (App.D.C. 1942) 130 F.(2d) 617; Jones v. Watts (C.C.A.5th, 1944) 142 F.(2d) 575; Preveden v. Hahn(S.D.N.Y. 1941) 36 F.Supp. 952; Cavallo v. Agwilines, Inc. (S.D.N.Y. 1942) 6 Fed.Rules Serv.
does this mean that coram nobis is still available as a writ.
so instead of writ of coram nobis it would be rule 60?
when you say federal rules of civil procedures state codes of civil procedures, which one takes precedence federal rules and state codes are subject to them.
but does federal rules have supremacy like the Federal constitution or is federal rules created by congress and state rules by general assembly
is that due to jurisdiction of law which court can hear certain controversies and then there respective laws(rules) apply
also i want to ask you about complexity of res judicata doctrine representing subject matter, if a court has jurisdiction in personam but lacks subject matter jurisdiction do they still have jurisdiction to pass a judgement
ive heard that courts obtain subject matter statutorily in some cases is that correct
but is that a grant to subject matter regardless, or doesn't there have to be a controversy, and the party's agree to allow the court to hear it or there was a previous case and the latter court received the subject matter by way of res judicata from the forma court to hear the case. is that correct
ok i think i understand res judicata would be for the loosing party that he cannot reopen the case again because the doctrine deals with finality of a cause, but; what if the winning party used frud to procure the judgment and further litigates against the defendant would the subsequent court have subject matter jurisdiction?
the court would have jurisdiction over the subject matter even if they ere not aware that the prior judgement was procured by fraud im trying to understand that i thought void judgement have no power or authority and can be put aside at any time directly or indirectly
i read Ohio supreme court has ruled that judgment by fraud are void not voidable
oh ok i see what you mean, but if it is brought to a court subsequently making a judgment on the facts of the prior court, would it be wron when you file a using 60 b to state motion to dismiss for lack of jurisdiction pursuant to rule 60 b due to fraud. im worried when i appeal and i use that word they will become technical on use of jurisdiction.
what i mean is in my pleading i state motion to dismiss for lack of jurisdiction,which was due to fraud meaning that the second court should dismiss due to the court cannot make a judgment off of a void judgment but should rather dismiss and reschedule for a evedentiary hearing to sort out the facts then proceed from there.
but when a person is a victim of fraud the judgment never comes final in the kenner court held that: "We think, however, that it can be reasoned that a decision produced by fraud on the court is not in essence a decision at all, and never becomes final" kenner v. commisioner 387 f2d 689,
if a court is allowed to make itself have jurisdiction to make a judgement on a void judgment wouldnt this be a violation of due process? also the people who would know of the fraud are the ones that were involved or affected by it right, so wouldnt it be illegal a violation of due process for a court to proceed after there has been notice given of such an act couple with facts.
i thought, well according to what i have read that a court does not have jurisdiction to violate the right of due process and if it did it looses jurisdiction ?
so how can some one attack it collaterally if it has to be proven first as in 60 b 5 the second court wouldn't know if in the previous trial there was fraud unless they held a hearing to investigate
this were my understanding comes from, court of appeals stated in kansas held in the sremek court that
[*575] Void Judgment
"Paul argues that he was not served notice of the proceeding in contempt pursuant to K.S.A. 20-1204a, and, therefore, the court lacked jurisdiction and the order is void. He argues that, if that judgment was void, the court's revivor order filed in 1991 could not revive a void judgment and, therefore, is also void. We agree." Sramek v. Sramek, 840 P. 2d 553, this court also said
[HN8] "a void judgment is an absolute nullity and may be ignored or disregarded, vacated on motion, or attacked on habeas corpus". See In Re Steele, 220 N.C. 685, 689, 18 S.E.2d 132 (1942).
so if a judgment is void a court has no jurisdiction to make a judgment on a void judgment it is nullity, correct?
but in this case his argument was that it was void the court agreed with him due to law and his argument was that they didnt have jurisdiction because of that which they also agreed isn't that what was said, i don't want to read into it
no i understand what your saying i agree you cant just be running around in mind saying void no one agrees with you, but im speaking about the lack of jurisdiction due to it being void, is that correct understanding according to this case law
i understand you can claim it under rule 60 b up until a higher court adjudicates on it, if your correct that it was void then they would lack jurisdiction
but in that case a court didn't rule on it he brought the fact that he was not serviced which would be a violation of due process and due to that the second court passed a judgment on a void judgment and they lack jurisdiction to do so, and the higher court agreed!
last question can you ask for a stay of execution to appeal on a jury trial for a misdaminer
you cannot argue that the defendent was informed that the trial was a pretrial and when he arrived the court turned it into a a trial even though he objected to the jury formulation and that he has been prejudiced by the delay of him returning 7 times 2 days past the 90 day statute of limitations when he informed the judge of it they went on any way after he said he was ill prepared
it to late to argue facts you have to argue if the courts actions were bias and doing so the court abused discretion because a jury at that point was responsible for the facts
so could he prove it from the transcripts, i want thank for replying quick like you did today by brother was in court
when they gave him the yellow slip it didnt say trial it just said next court the judge said pretrial, the date when he returned on the seven time he requested for dismissal due to speedy trial rights they overruled he objected thats when they gave him the yellow slip when he came back to court he said there trying to form a jury he objected and said i thought this was a pretrial im ill prepared the court said were going forward!lol
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