[suijuris]

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 judgement 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 judgements 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. ___, ___. 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.



"A court lacking diversity jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisidiction is lacking. 28 U.S.C.A. §1332."



"Party invoking jurisdiction of the court has duty to establish that federal jurisdiction does not exist. 28 U.S.C.A. §§1332, 1332(c)."



"There is a presumption against existence of federal jurisdiction; thus, party invoking federal court's jurisdiction bears the burden of proof. 28 U.S.C.A. §§1332, 1332(c); Fed.Rules Civ. Proc. rule 12(h)(3), 28 U.S.C.A."



"If parties do not raise question of lack of jurisdiction, it is the duty of the federal court to determine the manner sua sponte. 28 U.S.C.A. §1332."



"Lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction, or stipulation. 28 U.S.C.A. §1332."



"Although defendant did not present evidence to support dismissal for lack of jurisdiction, burden rested with plaintiffs to prove affirmatively that jurisdiction did exist. 28 U.S.C.A. §1332". Basso v. Utah Power and Light Company, 495 F.2d 906 (1974)