Author Topic: THE VOID COURT ORDER  (Read 8400 times)

M O'D

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THE VOID COURT ORDER
« on: March 27, 2012, 11:33:58 AM »
THE VOID COURT ORDER

Friday February 17, 2012
By Shirley Lewald, Solicitor Advocate Higher Rights (Civil and Criminal Courts), MSc (Psych), PGDip (SocSc), PGCPSE, LLB (Hons).


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The interesting and important nature of a ‘void’ order of a Court is not fully understood and appreciated in England and this article is written to assist the understanding of a ‘void’ order and to assist legal professionals in any concerns they may have in submitting to a Court that its order is void, if indeed it is void.

In Anlaby v. Praetorius (1888) 20 Q.B.D. 764 at 769 Fry L.J. stated on the issue of void proceedings that:

“A plaintiff has no right to obtain any judgement at all”.

A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921] it was stated that if an order is void ab initio (from the beginning) then there is no real order of the Court.

In Fry v. Moore (1889), 23 Q.B.D. 395 Lindley, L.J. said of void and irregular proceedings that it may be difficult to draw the exact line between nullity and irregularity. If a procedure is irregular it can be waived by the defendant but if it is null it cannot be waived and all that is done afterwards is void; in general, one can easily see on which side of the line the particular case falls.

A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1) or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736).

A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).

A ‘without jurisdiction’/ultra vires act is any act which a Court did not have power to do (Lord Denning in Firman v Ellis [1978]).

In Peacock v Bell and Kendal [1667] 85 E.R. 81, pp.87:88 it was held that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated.

It is important to note therefore that in the case of orders of Courts with unlimited jurisdiction, an order can never be void unless the ‘unlimited jurisdiction’ is ‘limited’ in situations where it is expressly shown to be so. In the case of orders of the Courts of unlimited jurisdiction where the jurisdiction is not expressly shown to be limited, the orders are either irregular or regular. If irregular, it can be set aside by the Court that made it upon application to that Court and a person affected by the irregular order has a right –ex debito justitiae – to have it set aside. If it is regular, it can only be set aside by an appellate Court upon appeal if there is one to which an appeal lies (Lord Diplock in Isaacs v Robertson (1984) 43 W.I.R. PC at 128-130). However, where the Court’s unlimited jurisdiction is shown to be limited (for example: a restriction on the Court’s power by an Act of Parliament or Civil or Criminal Procedure Rule) (Peacock v Bell and Kendal [1667]; Halsbury’s Laws of England) then the doctrine of nullity will apply.

Similarly, if the higher Court’s order is founded on a lower Court’s void act or invalid claim then the higher Court’s decision will also be void (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] 3 All ER).

The main differences between a ‘void’ and ‘voidable’ order or claim is that:

(i) a ‘void’ order or claim has no legal effect ab initio (from the beginning/outset) and therefore does not need to be appealed, although for convenience it may sometimes be necessary to have it set aside (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] and Firman v Ellis [1978]) whereas a ‘voidable’ order or claim has legal effect unless and until it is set aside. Therefore, while a void order or claim does not have to be obeyed and can be ignored and its nullity can be relied on as a defence when necessary (Wandsworth London Borough Council v. Winder [1985] A.C. 461), a voidable order or claim has to be obeyed and cannot be ignored unless and until it is set aside; and

(ii) a ‘void’ order can be set aside by the Court which made the order because the Court has inherent jurisdiction to set aside its own void order (Lord Greene in Craig v Kanssen [1943]) whereas a ‘voidable’ order can only be set aside by appeal to an appellate Court.

A person affected by both a void or voidable order has the right – ex debito justitiae – to have the order set aside (which means that the Court does not have discretion to refuse to set aside the order or to go into the merits of the case) (Lord Greene in Craig v Kanssen [1943]).

The procedure for setting aside a void order is by application to the Court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed.

Although an appeal is not necessary to set aside a void order, if permission to appeal is requested and if out of time the Court should grant permission because time does not run because the order is void and the person affected by it has the right to have it set aside (Lord Greene in Craig v Kanssen [1943].

A void order is incurably void and all proceedings based on the invalid claim or void act are also void. Even a decision of the higher Courts (High Court, Court of Appeal and Supreme Court) will be void if the decision is founded on an invalid claim or void act, because something cannot be founded on nothing (Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).

A void order is void even if it results in a failure of natural justice or injustice to an innocent third party (Lord Denning in Wiseman v Wiseman [1953] 1 All ER 601).

It is never too late to raise the issue of nullity and a person can ignore the void order or claim and raise it as a defence when necessary (Wandsworth London Borough Council v. Winder [1985] A.C. 461; Smurthwaite v Hannay [1894] A.C. 494; Upjohn LJ in Re Pritchard (deceased) [1963]; Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).

In R v. Clarke and McDaid [2008] UKHL8 the House of Lords confirmed that there is no valid trial if the bill/Indictment has not been signed by an appropriate officer of the Court because Parliament intended that the Indictment be signed by a proper officer of the Court.

In Bellinger v Bellinger [2003] UKHL 21 the House of Lords confirmed that a void act is void from the outset and no Court – not even the House of Lords (now the Supreme Court) – has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem, because doing so would mean reforming the law which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform or create it.

It is important to note that if a claim is invalid the plaintiff can start all over again unless he is prevented from doing so due to limitation as in the case of Re Pritchard (deceased) [1963] or estoppel – for example; where the Claimant applied to the Court for permission to correct/amend the claim and permission was refused; or the plaintiff or his solicitor had been negligent in ignoring a material fact when filing the invalid claim so that the plaintiff is estopped by the principle that he should not be allowed a ‘second bite at the cherry’; and in the case of a criminal trial if there has been a fundamental technical defect the Court can order a new trial (venire de novo – may you cause to come anew).

Chronology of some case laws relating to void orders:

1888:
In Anlaby v. Praetorius (1888) Fry L.J. stated on the issue of void proceedings that:

(i) a plaintiff has no right to obtain any judgement at all.

1889:
In Fry v. Moore (1889) Lindley, L.J. said that:

(i) it might be difficult to draw the exact line between nullity and irregularity. If an order is irregular it can be waived by the defendant but if it is null then it renders all that is done afterwards void. In general one can easily see on which side of the line the particular case falls.

1921:
Crane v Director of Public Prosecutions [1921]:

(i) if an order is void ab initio (from the beginning) then there is no real order of the Court.
1943:
In Craig v Kanssen [1943] Lord Greene confirmed that:

(i) an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside;

(ii) so far as procedure is concerned the Court in its ‘inherent jurisdiction’ can set aside its own order and an appeal from the order is not necessary; and

(iii) if permission to appeal is requested and if out of time the Court should grant permission because time does not run because the point is that the order is invalid and the person affected by it has the right to have it set aside.

1953:
In Wiseman v Wiseman [1953] 1 All ER 601 – Lord Denning confirmed that:

(i) The issue of natural justice does not arise in a void order because it is void whether it causes a failure of natural justice or not;

(ii) a claimant or defendant should not be allowed to abuse the process of Court by failing to comply with a statutory procedure and yet keep the benefit of it and for that reason also a void act is void even if it affects the rights of an innocent third party.

1961:
In MacFoy v United Africa Co Ltd. [1961] Lord Denning confirmed that:

(i) a void order is automatically void without more ado;

(ii) a void order does not have to be set aside by a Court to render it void although for convenience it may sometimes be necessary to have the Court set the void order aside;

(iii) a void order is incurably void and all proceedings based on the void order/invalid claim are also void.

1963:
In Re Pritchard (deceased) [1963] Upjohn LJ confirmed that:

(i) a fundamental defect in proceedings will make the whole proceedings a nullity;

(ii) a nullity cannot be waived;

(iii) it is never too late to raise the issue of nullity; and

(iv) a person affected by a void order has the right – ex debito justitiae – to have it set aside.

1978:
In Firman v Ellis [1978] Lord Denning confirmed that:

(i) a void act is void ab initio

1979:
Lord Denning, in his book ‘The Discipline of Law’ – Butterworths 1979 – page 77, states:

(i) although a void order has no legal effect from the outset it may sometimes be necessary to have it set aside because as Lord Radcliffe once said: “It bears no brand of invalidity on its forehead”.

1985:
Wandsworth London Borough Council v. Winder [1985] A.C. 461:

(i) a person may ignore a void claim and rely on it as a defence when necessary.
2003:

In Bellinger v Bellinger [2003] the House of Lords confirmed that:

(i) a void act is void from the outset; and

(ii) no Court – not even the House of Lords (now the Supreme Court) has jurisdiction to give legal effect to a void act no matter how unreasonable that may seem because doing so would mean reforming the laws which no Court has power to do because such power rests only with Parliament. The duty of the Court is to interpret and apply the law not reform it.

Conclusion based on the case laws referred to above:

(i) an application to have a void order set aside can be made to the Court which made the void order;

(ii) the setting aside must be done under the Court’s inherent power to set aside its own void order;

(iii) the Court does not have discretion to refuse the application because the person affected by the void order has a right to have it set aside;

(iv) an appeal is not necessary because the order is already void;

(v) if permission to appeal is sought and if sought out of time permission should be given because as the order is void time does not run; it is never too late to raise the issue of nullity; and the person affected by the void order has a right to have it set aside;

(vi) a void order can be quashed or declared unlawful by Judicial Review where available and where damages may also be claimed;

(vii) the whole proceedings is void if it was based on a void act;

(viii) a void order does not have to be obeyed because it has no legal effect from the beginning;

(ix) as it is never too late to raise the issue of nullity a person can ignore the void order and rely on nullity as a defence when necessary;

(x) a void order is void even if the nullity is unjust or injustice occurs to an innocent third party;

(xi) an order of a Court of unlimited jurisdiction is only void if it can be expressly be shown that the unlimited jurisdiction is limited in that situation, or the order is founded on an invalid claim or void act;

(xii) no Court (not even the Supreme Court) has jurisdiction to give effect to a void act and the duty of the Court is only to interpret and apply the law not to reform or create it as such power rests only with Parliament.

© Shirley Lewald, – 10 July 2010 Updated: 6 February 2011

« Last Edit: June 04, 2013, 08:57:36 PM by M O'E »
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M O'D

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'THE SECRET IS OUT' ABOUT THE VOID COURT ORDER
« Reply #1 on: June 04, 2013, 09:11:46 PM »
 

4 Secrets of the Legal Industry


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Most judgments are not merely voidable, but are in fact VOID JUDGMENTS. They can be vacated; made to go away (Although, it is an up hill battle, much like pushing a rope). Rarely has any authenticated evidence, competent fact witness, or even a claim been put before a court and on the record.

Defective affidavits, hearsay as evidence and no stated damages are but a few elements that rob the court of subject matter jurisdiction (at last count there are 22 elements that deprive the court of SMJ). Some of the elements are: denial of due process, denial of meaningful access to court, fraud upon the court, and fraud upon the court by the court.

(Although these pages are aimed primarily towards debt, credit card debt, the principals set forth herein apply to virtually all civil and criminal cases.)

Common pleas such as "open account" or "account stated" are often used in place of, and sometimes in conjunction with, breach of contract. To file under breach a contract would require that they bring in the signed contract, agreement, or note. They don't bring in a contract, they bring in the "terms of agreement" which has no signature or persons name on it, a template that could apply to anyone.

These are just some of the tools used by debt collectors (credit card debt collectors in particular) and their counsel to perpetrate a fraud upon the court, with or without the courts cooperation or complicity.

At the same time, courts, almost as a rule, openly display a bitter and venomous hatred of pro se / pro per litigants. So don't expect the courts to just roll over and give you what you demand without a battle. It doesn't matter to them that you are right, it matters only that you are pro se; an inferior, low life being, and the courts have a position and the income of their brotherhood to protect. This attitude by the courts and Bar authorized attorneys tends to support the position expressed by Bill Bauer from CreditWrench.com: "There's more value in being a pain in the arse than in being right."

These are the four secrets:

1. Courts of general, limited, or inferior jurisdiction have no inherent judicial power.*

Courts of general, limited, or inferior jurisdiction get their jurisdiction from one source and one source only: SUFFICIENT PLEADINGS.

Someone before the court must tell the court what its jurisdiction is.
Without pleadings sufficient to empower the court to act, that court cannot have judicial capacity.

No judge has the power to determine whether he has jurisdiction. He does have the duty to tell when he does not.

....What this means to you is that no court can declare that it has the legal power to hear or decide cases, i.e. jurisdiction. Jurisdiction must be proved and on the record. Without sufficient pleadings, without jurisdiction, no court can issue a judgment that isn’t void ab initio, void from the beginning, void on its face, a nullity, without force and effect.

2. We have a common law system.

No statute, no rule, or no law means what it says as it is written.

Only the holding tells you what it means.

The statute means what the highest court of competent jurisdiction has ruled and determined that the statute means in their most recent ruling.

....What this means to you is that courts are governed/ruled by case law, what has been determined before, what the highest court of competent jurisdiction has said the law is, means. It is called the Doctrine of Precedent. This doctrine is so powerful that it can kill and has. A family in Florida has become quite familiar with this doctrine when they tried for 15 years to prevent feeding tubes from being removed from their daughter who was in a vegetative state.

3. Attorneys CANNOT testify.

Statements of counsel in brief or in argument are never facts before the court.

....What this means to you is that no attorney can state a fact before the court. This was more than adequately pointed out in 2000 when thousands of Florida ballots were taken before the U.S. Supreme Court, without even so much as one competent fact witness. Without a witness the court could not see the ballots, the ballots were not before the court, and the ballots could not be introduced as evidence.

4. Before any determination, there must be a court of complete or competent jurisdiction.

There must be two parties with capacity to be there.

There must be subject matter jurisdiction.

Appearance or testimony of a competent fact witness.

....What this means to you is that without jurisdiction, complete jurisdiction, no court can issue a judgment that isn’t void, a nullity, without force or effect, on its face and in fact.

*"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1, cl. 1.







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-- "Any man who thinks he can be happy and prosperous by letting the government take care of him --- better take a closer look at the American Indian." - Henry Ford

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M O'D

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22 REASONS TO VACATE A VOID JUDGEMENT
« Reply #2 on: June 04, 2013, 09:23:08 PM »
Twenty-two reasons to vacate a Void Judgment

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The Really BIG Deal

The real issue in void judgments is, SUBJECT MATTER JURISDICTION!!!!
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 & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940).

I can go into void judgments at great length with enough court case cites to make anybody's eyes glaze over but I shall refrain. Let it be said that the really big deal with subject matter jurisdiction is that it 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 reasons why subject matter jurisdiction is lost:

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(1) No petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118,122 (1930).

(2) Defective petition filed, Same case as above.

(3) Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d 893(1985)

(4) Fraud upon the court, In re Village of Willowbrook, 37 Ill, App. 3d 393(1962)

(5) A judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill 140, 143 (1921)

(6) Unlawful activity of a judge, Code of Judicial Conduct.

(7) Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019; 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); (8) If the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278 F. Supp. 794 (S.D.N.Y. 1967)

(9) Any acts in violation of 11 U.S.C. 362(a),IN re Garcia, 109 B.R. 335 (N.D> Illinois, 1989).

(10) 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. 1994)

(11) 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. 1993)

(12) Where any litigant was represented before a court by a person/law firm that is prohibited by law to practice law in that jurisdiction.

(13) 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)

(14) Where a summons was not properly issued.

(15) Where service of process was not made pursuant to statute and Supreme Courth Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E. 2d 706, 708 (1953)

(16) When the rules of the Circuit court are not complied with.

(17) When the local rules of the special court are not complied with. (One Where the judge does not act impartially, Bracey v. Warden, U.S. Supreme Court No. 96-6133(June 9, 1997)

(18) Where the statute is vague, People v. Williams, 638 N.E. 2d 207 (1st Dist. (1994)

(19) 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)

(20) 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

(21) Where the public policy of the State of Illinois is violated, Martin-Tregona v Roderick, 29 Ill. App. 3d 553, 331 N.E. 2d 100 (1st Dist. 1975)

And another that can and should be checked on is does the judge have a copy of his oath of office on file in his chambers? If not, he is not a judge and yes, you can go into his office and demand to see a copy of his oath of office at any time. The laws covering judges and other public officials are to be found at 5 U.S.C. 3331, 28 U.S.C. 543 and 42 U.S.C. 1983 and if the judge has not complied with all of those provisions he is not a judge but a trespasser upon the court. If he is proven a trespasser upon the court(upon the law) not one of his judgments, pronouncements or orders are valid. All are null and void.

In all, there are 22 indices which tell us whether or not a court had subject matter jurisdiction and when examining a judgment one has to know each and every one of them by heart. If he knows them by heart he can go through a judgment like Sherman going though Georgia and point out all of the errors which might make the case a void judgment, null and void upon it's face.

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 a void 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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