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Void Judgments Constitution

VOID JUDGMENTS



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Authorities on Void Judgments
Black's Law Dictionary, Sixth Edition, page 1574
Void judgment. One which has has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. 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. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. See also Voidable judgment.
Other Authorities on Void Judgments:
Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties. See:
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) Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940)
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. See 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. See Lubben v. Selective 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. See 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 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. Amend. 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, 896 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 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 it has no jurisdiction, Mills v. Richardson, 81S.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 persons, subject matter generally, particular question to be decided or relief assumed to be given, State ex re. 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 judgment, Underwood v. Brown, 244 S.W.2d 168 (Tenn. 1951).
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.X.2d 141 (Twx.Civ.App.-Beaumone 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 bee procured by extrinsic or collateral fraud, or entered by court that did not 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 re. 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 collaterially, Irving v. Rodriquez, 169 N.E.2d 145, (Ill. app. 2 Dis. 1960).
Invalidity needs 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, Cockett Oil Co. v. Effie, 374 S.W.2d 154 (Mo.App. 1964).
Decision is void on the face of the judgment roll when form four corners of that roll, it may be determined that at least on 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. re. 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, Sachez 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 releif 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.
A "void" judgment, as we all know, grounds no rights, forms no defense to actions taken thereunder, 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 old wound and once more probe its depths. And it is then as though trial and adjudication had never been. Fritts v. Krugh, Supreme Court of Michigan, 92 N.W.2d 604, 354 Mich. 97 (10/13/58).
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, 5 Mich 443; Lunch 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.
Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is
"without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
Black's Law Dictionary, Sixth Edition, page 1574:
Void judgment. One which has has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. 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. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. See also Voidable judgment.
Authorities on Void Judgments:
Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties. See:
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)
Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940)
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. See 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. See Lubben v. Selective 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. See 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 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. Amend. 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, 896 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 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 it has no jurisdiction, Mills v. Richardson, 81S.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 persons, subject matter generally, particular question to be decided or relief assumed to be given, State ex re. 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 judgment, Underwood v. Brown, 244 S.W.2d 168 (Tenn. 1951).
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.X.2d 141 (Twx.Civ.App.-Beaumone 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 bee procured by extrinsic or collateral fraud, or entered by court that did not 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 re. 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 collaterially, Irving v. Rodriquez, 169 N.E.2d 145, (Ill. app. 2 Dis. 1960).
Invalidity needs 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, Cockett Oil Co. v. Effie, 374 S.W.2d 154 (Mo.App. 1964).
Decision is void on the face of the judgment roll when form four corners of that roll, it may be determined that at least on 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. re. 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, Sachez 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 releif 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.
A "void" judgment, as we all know, grounds no rights, forms no defense to actions taken thereunder, 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 old wound and once more probe its depths. And it is then as though trial and adjudication had never been. Fritts v. Krugh, Supreme Court of Michigan, 92 N.W.2d 604, 354 Mich. 97 (10/13/58).
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, 5 Mich 443; Lunch 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.

Prerequisites for Subject Matter Jurisdiction
The really bid deal, the real issue in void judgments is SUBJECT MATTER JURISDICTION!!! Remember, subject matter can never be presumed, never be waived, and cannot be construed 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. Subject matter jurisdictional failings:
  1. No Petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118, 122 (1930)
  2. Defective Petition filed, Brown v. VanKeuren, 340 Ill. 118, 122 (1930)
  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 (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);
  8. If the court exceeded its 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 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 Court Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E.2d 706, 708 (1955).
  16. When the Rules of Circuit Court are not complied with.

Sec. 13.16 Attacking a Void Judgment
A judgment that is "void" may be attacked by motion under rule 60(b), regardless of whether the motion is made within one year or is made later[1], by an independent suit in equity if for some reason the motion under 60(b) would not provide adequate relief[2]; or by denying the validity of the judgment when it is relied on in a subsequent action. Many decisions characterize a judgment that has been procured by fraud as "void," though more often such a judgment is characterized as "voidable." The distinction has never been very clear, and the purpose of making it not consistently articulated. One purpose of the distinction is to give effect to the concept that the person seeking to nullify the judgment should ordinarily do so by going into the court that rendered the judgment rather than attempting to do so in an independent suit. Hence, it has been said that a "void" judgment can be attacked in an independent suit but a "voidable" one must be attacked by a 60(b) type of motion. But if the proposition is accepted that the applicant for relief should always be required to use a 60(b) motion unless it would not provide adequate relief[3], then the distinction is unnecessary. At any rate, a judgment rendered by a court that lacks jurisdiction is universally characterized as "void."[4] Traditional doctrine had been that such a judgment is a legal nullity. In modern decisions, however, the problem is recognized as being more complicated[5]. That is, there may be situations in which a court lacking jurisdiction has rendered a judgment that should nevertheless be given effect. In this regard, it is important to distinguish between jurisdiction over the person and jurisdiction over the subject matter.
Jurisdiction over the person may be lacking because the process employed did not give adequate notice to the person against whom judgment was rendered[6], or because that court lacked the required contacts with the case[7], or because, although jurisdiction was secured over a party purporting to represent the person, the representation was fundamentally inadequate[8]. Unless the party somehow learned of the action and made an appearance to contest the exercise of jurisdiction over his person[9], the judgment is void on Due Process grounds in all these circumstances. Many decisions also hold a judgment void where the party obtained actual notice from a court that had sufficient contacts with the case but the process was not in technical compliance with the rules governing mechanics of service[10]. Inasmuch as the party in that situation had actual notice and could have raised his technical objection by special appearance, however, it is not at all clear why the judgment should be treated as void, particularly if the statute of limitations has run on the claim by the time the judgment is attacked. The problem of lack of subject matter jurisdiction is more complicated. The old vintage rule was that a judgment of a court lacking subject matter jurisdiction was a legal nullity[11]. This rule was subject to various saving qualifications, e.g., that jurisdiction was presumed if the rendering court was one of general jurisdiction, that evidence outside the record was inadmissible to prove lack of jurisdiction, etc. But it had the effect of making judgments potentially vulnerable if any substantial question of subject matter jurisdiction was presented.
The modern view, not yet fully accepted, takes a different approach, at least where the lack of jurisdiction was not entirely obvious. In this approach the critical questions are, first, whether the party against whom the judgment was rendered had opportunity to do so. The questions present themselves in three contexts: where the question of jurisdiction was actually raised in the original action; where the party charged with the judgment appeared in the action, thereby having an opportunity to challenge jurisdiction, but did not raise the jurisdictional question; and where the judgment was rendered by default.
If the question of jurisdiction was raised and adjudicated in the original action, the modern view is that the judgment is not subject to subsequent attack, on the premise that a court has an auxiliary jurisdiction to determine its jurisdiction[12]. Although some authorities suggest that this rule is inapplicable to courts of limited jurisdiction, there seems no reason why it should not be. An erroneous determination of the jurisdictional question can be remedied by review through appeal or extraordinary writ, and failure to pursue such a remedy should foreclose subsequent disputation of the issue.
If the party charged with the judgment appeared in the action, there is almost equally strong reason for holding that the question of subject matter jurisdiction may not be raised by subsequent attack on the judgment[13]. By hypothesis the party had opportunity to raise the jurisdictional defense. There is little reason for saying it should survive the judgment when defenses on the merits would not. Moreover, the party who obtained the judgment may be assumed to suppose it is valid and justifiably guide his subsequent conduct accordingly. Nevertheless, many authorities still adhere to the view that the jurisdictional question can be subsequently raised, by motion under Rule 60(b) or its analogues, by separate suit in equtiy, or by attacking the judgment when it is relied upon by an opponent. However, most of the cases in which such an attack has been allowed have involved no intervening reliance interests and either a judgment of a tribunal of limited jurisdiction or grounds of attack having Constitutional implications[14]. Even in these situations the tendency sems to be to sustain the judgment except when its enforcement would affect the government itself or the administration of a scheme of remedies having significance beyond the immediate parties.
When the judgment has been entered by default, the judgment is usually regarded as open to attack if rendered without subject matter jurisdiction. When the default was entered without Constitutionally adequate notice, the judgment is in any event infirm on Due Process grounds[14]. If notice was adequate, however, it can be said that the party had opportunity to raise the question of subject matter jurisdiction and should be foreclosed from subsequent opportunity to do so. On the other hand, default judgments are in any case disfavored[16], the more so if the rendering court apparently lacked the authority it purported to exercise. The better rule would seem to be to hold such a judgment void, except when it has given rise to substantial interests of reliance of which the person against whom it was rendered was aware[17]. Binding the person to the judgment in the latter situation can be justified not so much on a principle of res judicata as upon one of equitable estoppel[18], for a judgment is not the only basis upon which one's rights may be treated as finally concluded.

  1. See Fed. R. Civ. P 60(B)(4).
  2. See Sec. 13.15 supra.
  3. See Sec. 13.15 at note 2 supra.
  4. See 11 Wright & Miller, Federal Practice and Procedure sec. 2862.
  5. See Boskey and Brauncher, Jurisdiction and Collateral Attack, 40 Colum. L. Rev. 1006 (1940).
  6. E.g., Walker v. City of Hutchinson, 352 U.S. 112, 77 S. Ct. 200, 1 L.Ed. 2d 178 (1956). See also United States v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D.N.Y 1970) (injunction by the United States against procuring judgments on the basis of "sewer service"); see Tuerkheimer, Service of Process in New Youk City: A Proposed End to Unregulated Criminality, 72 Colum. L. Rev. 847 (1972).
  7. E.g., Hanson v. Dencla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958).
  8. See Restatement of Judgments Second sec. 86(2) (Tent. Draft No. 2, 1975).
  9. If he made an appearance and contested jurisdiction, the determination of that issue is res judicata. See Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 51 S. Ct. 517, 75 L. Ed. 1244 (1931); Durfee v. Duke, 375 U.S. 106, 84 S. Ct. 242, 11 L. Ed. 2d 186 (1963).
  10. See, e.g., Central Operating Co. v. Utility Workers of America, 491 F.2d 245 (4th Cir. 1974).
  11. See Dobbs, The Decline of Jurisdiction by Consent, 40 N.C.L. Rev. 49 (1961).
  12. Durfee v. Duke, 375 U.S. 106, 84 S. Ct. 242, 11 L. Ed. 2d 186 (1963).
  13. See generally Dobbs, Beyond Bootstrap: Foreclosing the Issue of Subject-Matter Jurisdiction Before Final Judgment, 51 Minn. L. Rev. 491 (1967). See Restatement of Judgments sec. 10.
  14. Ibid. See, e.g., United States v. Unites States Fidelity & Guaranty Co., 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894 (1940); Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974).
  15. See notes 6-8 supra.
  16. See sec. 13.14 text following note 5 supra.
  17. See Restatement of Judgments sec. 117.
  18. See sec. 11.31 supra.
Contact Us if you have a judgment against you.

RULE 60. RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have 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 more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit 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 or review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
FRCP 60
A motion to set aside a judgment as void for lack of jurisdiction is not subject to the time limitations of Rule 60(b). See Garcia v. Garcia, 712 P.2d 288 (Utah 1986).
There is only an immaterial procedural difference between the relief sought pursuant to Rule 60(b) and the relief sought in an independent action. Hadden v. Rumsey Prods., 196 F.2d 92 (2d Cir. 1952); 7 Moore's Federal Practice, § 60.38(3) (2d ed. 1971))
A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court's action amounts to a plain usurpation of power constituting a violation of due process. United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990)
Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'" Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)).
In order for a judgment to be void, there must be some jurisdictional defect in the court's authority to enter the judgment, either because the court lacks personal jurisdiction or because it lacks jurisdiction over the subject matter of the suit. Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983); Dragotoiu, 133 Idaho at 647, 991 P.2d at 379.
A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties. Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987) Law Review Articles
Allocating the Burden of Proof in Rule 60(b)(4) Motions to Vacate a Default Judgment for Lack of Jurisdiction

Misc. Cases on Void Judgments
Diamond v. Diamond
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United States v. One Rural Lot NO. 10,356, ETC.
OSHA decision on ADANLOCK OFFICE ENVIRONMENTS, DIV. OF SUPERIOR JAMESTOWN CORP
Latimer v. Latimer, a void divorce
PHYLLIS C. HUDSON v. SC DEPT. OF HIGHWAYS - judgment finding a void judgment itself found void - Rule 54(c) does not result in a void judgment unless the judgment by default was different in kind from or exceeded in amount than that prayed for in the demand for judgment.
Meyer v. Meyer
Hamill v. Bay Bridge
People of Illinois v. Harvey.I read section 2-1401, similar to Rule 60 of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 60), as replacing traditional collateral proceedings as the proper vehicle for attacking void judgments. See Malone v. Cosentino, 99 Ill. 2d 29, 33 (1983) (final judgments can only be attacked on direct appeal, or in one of the traditional collateral proceedings now defined by statute). ... In light of these concerns, I believe the better course of action is simply to recognize that a motion for relief from a void judgment may be brought under section 2-1401 of the Code of Civil Procedure. This clarifies the basis of jurisdiction and provides the procedural mechanism for exercising the principle of law with which every member of this court agrees, i.e., that a motion attacking a void judgment may be brought at any time.
KANSAS ex rel. KOONTZ v. CLUBBHowever, when a judgment is attacked under K.S.A. 60-260(b)(4) as being void, there is no question of discretion on the part of the trial court.
MEDINA v. AMERICAN FAMILY MUTUAL - A judgment against an alleged tortfeasor that is void due to lack of personal service cannot be successfully used to collect under the injured party's underinsured motorist coverage when the insurance company has not otherwise submitted to jurisdiction in the case.
"a void act cannot be ratified." In re Garcia, 105 B.R. 335 (N.D.Ill. 1989).
A party may attack a void judgment at any time in a motion separate and apart from a section 2-1401 petition. R.W. Sawant, 111 Ill. 2d at 310; City of Chicago v. Fair Employment Practices Comm'n, 65 Ill. 2d 108, 112 (1976); Barnard v. Michael, 392 Ill. 130, 135 (1945); see State Bank v. Thill, 113 Ill. 2d 294, 308-09 (1986); Cavanaugh v. Lansing Municipal Airport, 288 Ill. App. 3d 239, 246 (1997); In re Marriage of Parks, 122 Ill. App. 3d 905, 909 (1984); First Federal Savings & Loan Ass'n v. Brown, 74 Ill. App. 3d 901, 905 (1979).
A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. Thus, if a court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make particular order or a judgment is akin to lack of subject matter jurisdiction and is subject to collateral attack. 46 Am. Jur. 2d, Judgments § 25, pp. 388-89.
A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972)
A judgment rendered by a court without personal jurisdiction 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).
"Where there are no depositions, admissions, or affidavits the court has no facts to rely on for a summary determination." Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.
"A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court", OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907).
"The law is well-settled that a void order or judgment is void even before reversal", VALLEY v. NORTHERN FIRE & MARINE INS. CO., 254 u.s. 348, 41 S. Ct. 116 ( 1920 )
"Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities ; they are not voidable, but simply void, and this even prior to reversal." WILLIAMSON v. BERRY, 8 HOW. 945, 540 12 L. Ed. 1170, 1189 ( 1850 ).
"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. U.S. 505 F 2d 1026
"There is no discretion to ignore lack of jurisdiction." Joyce v. U.S. 474 2D 215.
"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F 2d 416
"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." 100 S. Ct. 2502 (1980)
"Jurisdiction can be challenged at any time." 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." Hill Top Developers v. Holiday Pines Service Corp. 478 So. 2d. 368 (Fla 2nd DCA 1985)
"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F. Supp. 150.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d 389.
"Jurisdiction, once challenged, cannot be assumed and must be decided." Maine v Thiboutot 100 S. Ct. 250.
"The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v Lavine 415 U. S. 533.
Though not specifically alleged, defendant's challenge to subject matter jurisdiction implicitly raised claim that default judgment against him was void and relief should be granted under Rule 60(b)(4). Honneus v. Donovan, 93 F.R.D. 433, 436-37 (1982), aff'd, 691 F.2d 1 (1st Cir. 1982).
Kocher v. Dow Chem. Co., 132 F.3d 1225, 1230-31 (8th Cir. 1997) (as long as there is an "arguable basis" for subject matter jurisdiction, a judgment is not void).
Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972) ("A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect.").
Stoll v. Gottlieb, 305 U.S. 165, 171- 72, 59 S.Ct. 134 (1938) ("Every court in rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter.");
GEICO v. Jackson, 1995 U.S. Dist. LEXIS 16814, *1 (1995) ("[A] default judgment constitutes an implicit ruling on subject matter jurisdiction and an erroneous determination does not make the judgment void under Rule 60(b)(4)").
"Either a judgment is valid or it is void, and the court must act accordingly once the issue is resolved." In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997).
"A judgment is void if the court acted in a manner inconsistent with due process. A void judgment is a nullity and may be vacated at any time." 261 Kan. at 862.
"A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties." Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987)
A judgment obtained without jurisdiction over the defendant is void. Overby v. Overby , 457 S.W.2d 851 (Tenn. 1970).
A void judgment is one of the grounds for relief under Rule 60, Tenn. R. Civ. Proc. See Rule 60.02(3).
Dictionary.Law.com: void adj. referring to a statute, contract, ruling or anything which is null and of no effect. A law or judgment found by an appeals court to be unconstitutional is void, a rescinded (mutually cancelled) contract is void, and a marriage which has been annulled by court judgment is void.
When the law prescribes a place of imprisonment to which a convicted defendant can be sentenced, the court cannot direct a different place of incarceration, and, if it does, the sentence is void and the defendant is entitled to resentencing. State v. Bouck, 2001 ND 153, 633 N.W.2d 163
There is no time limit for attacking a void judgment under N.D.R.Civ.P. 60(b)(iv). Eggl v. Fleetguard, Inc., 1998 ND 166, 583 N.W.2d 812
Habeas corpus is an appropriate remedy to attack a void judgment or sentence. See Ex parte Seidel, 39 S.W.3d 221, 224, 225 at n. 4 (Tex.Crim.App. 2001); Ex parte Beck, 922 S.W.2d 181 (Tex.Crim.App. 1996); Heath v. State, 817 S.W.2d at 336 (Tex.Crim.App. 1991) (opinion on original submission); Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979).
A void conviction may be challenged in a post-conviction habeas corpus proceeding. Beck, 922 S.W.2d 181; Heath, 817 S.W.2d at 336; Ex parte McIver, 586 S.W.2d 851; Burns, 441 S.W.2d 532; Jenkins, 433 S.W.2d 701; Higginbotham, 382 S.W.2d 927; Strother, 395 S.W.2d 629; Rawlins, 255 S.W.2d 877.
If such an action by the trial court in Seidel rendered the dismissal void, then an even stronger case can be made that the violation of Article 1.13(c) in the instant case rendered the resulting conviction void. By Article 1.13(c), the Legislature has specifically prohibited a trial court from accepting a defendant's waiver of a jury trial until the court has appointed an attorney to represent him. Here, not only was "[t]he trial judge's action ... not authorized by law ...," Seidel, 39 S.W.2d at 225, the action was specifically prohibited by statute. Requiring an objection at trial in these circumstances would lead to a Catch-22 situation: a defendant must object to not having an attorney appointed to advise him as to waiver of jury trial, without having been advised by an attorney that he was entitled to such representation and advice. Given the absurdity of such a situation, we chose in the past to characterize the resulting conviction as "void" and allow the defendant to raise the issue in a habeas corpus proceeding. Otherwise, defendants, such as appellant, are left without a remedy even though there has been a clear violation of a mandatory statute.
Thus, in a long line of cases, most notably Heath and Seidel, we have held that some defects, even though they are "just" statutory defects, are so egregious that they are cognizable on habeas corpus. See Heath, 817 S.W.2d at 336; Seidel, 39 S.W.3d 221 at 225; Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App. 1979). In Heath, we characterized these defects as rendering the conviction "void." 817 S.W.2d at 336. However, we could have properly characterized as "fundamental" errors those "unauthorized sentences" and "statutory defects" which render a sentence void. No matter what we choose to call these "errors," the underlying purpose is the same: to balance a convicted person's interest in the vindication of his legal rights and the State's interest in the finality of convictions.
In Texas, a defendant has a statutory right to have counsel appointed before he can waive his right to a jury trial. The Legislature has decided that the right to a jury trial is so important that before a defendant can waive that right, he should have the opportunity to consult with counsel. If a trial court denies a defendant that right by refusing to appoint counsel, equity demands that the balance be struck in favor of the defendant. Therefore, a defendant should be allowed to contest, in a habeas corpus proceeding, a violation of Article 1.13(c).
The court then concluded that, in the case before it, the trial court had jurisdiction of the subject matter because it was a circuit court which has jurisdiction of all felonies and that any objection King had to jurisdiction over his person was waived by his personal appearance. [State v. King, 426 So. 2d 12 (Fla. 1982)]
Conviction of a nonexistent crime results in a void judgment not subject to waiver. People v. McCarty 94 Ill. 2d 28, 37 (1983).
A recent discussion of the Rule 60(b)(4) grounds for attack on a void judgment may be found in Fisher v. Amaraneni, 565 So. 2d 84 (Ala. 1990). The judgment was set aside for lack of personal jurisdiction based on improper service by publication. The court defined a judgment as void "only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process." Id. at 86 (citing Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala. 1978)). It should be noted here that a Rule 60(b)(4) motion involves a different standard of review than the other Rule 60(b) subsections since the court held "[w]hen the grant or denial turns on the validity of the judgment, discretion has no place for operation. If the judgment is void it must be set aside ...." Fisher, 565 So. 2d at 87.
"The consequences of an act beyond the court's jurisdiction in the fundamental sense differ from the consequences of an act in excess of jurisdiction. An act beyond a court's jurisdiction in the fundamental sense is void; it may be set aside at any time and no valid rights can accrue thereunder. In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time." People v. Ruiz (1990) 217 Cal. App. 3d 574, 265 Cal. Rptr. 886
Held: Petitioner was not accorded a fair and impartial trial, to which he was entitled under the Due Process Clause of the Fourteenth Amendment; his conviction is void; the judgment denying habeas corpus is vacated; and the case is remanded to the District Court for further proceedings affording the State a reasonable time to retry petitioner. 366 U.S. 717
See American Surety Co. v. Baldwin, 287 U.S. 156, 166-67 (1932) (applying res judicata to action seeking to set aside judgment for lack of jurisdiction); Browning v. Navarro, 887 F.2d 553, 558-59 (5th Cir. 1989) (res judicata applies to actions to void judgment for fraud).
Although Rule 60(b)(4) is ostensibly subject to the "reasonable" time limit of Rule 60(b), at least one court has held that no time limit applies to a motion under the Rule 60(b)(4) because a void judgment can never acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the court vacated a judgment as void 30 years after entry. See also Marquette Corp. v. Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that clause Rule 60(b)(4) carries no real time limit.
In a long and venerable line of cases, the Supreme Court has held that, without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit. See, e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans for Official English v. Arizona, 520 U.S. 43. Bell v. Hood, supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531; Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per curiam); United States v. Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421 U.S. 707, 721; and Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 86—88, distinguished. For a court to pronounce upon a law’s meaning or constitutionality when it has no jurisdiction to do so is, by very definition, an ultra vires act. Pp. 8—17.
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