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Originally Posted by Weis
The Motion for a Bill of Particulars (MFBP) may screw up the TS(ticket slayer) approach.
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Yes, the court will consider it a statuatory doc, and that you've joined.
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Originally Posted by Weis
I am not sure of this, but the TS approach is that there is a misjoinder(right?)
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Yes, check out the 2nd definition...
MISJOINDER, pleading.
Misjoinder of causes of action, or counts, consists in joining, in different counts in one declaration, several demands, which the law does not permit to be joined, to enforce several distinct, substantive rights of recovery; as, where a declaration joins a count in trespass with another in case, for distinct wrongs or a count in tort, with another in contract. Gould. 6n PI. c. 4, 98; Archb. Civ. PI. 61, 78 176; Serg. and Rawle, 358; Dane's Ab. Index, h. t.
2.
Misjoinder of parties, consists in joining as plaintiffs or defendants, persons, who have not a joint interest. When the misjoinder relates to the plaintiffs, the defendants may, at common law, plead the matter in abatement, whether the action be real; 12 H. IV., 15; personal;
Johns. Ch. R. 350, 438; 12 John. R. 1; 2 Mass. R. 293; or mixed; or it will be good cause of nonsuit at the trial. 3 Bos. & Pull. 235. Where the objection appears upon the face of the declaration, the defendant may demur generally;
2 Saund. 145; or move in arrest of judgment; or bring a writ of error.
The TS docs take the position that the tribunals have no business with a sovereign, unless an injury has occured. So, to use a statuatory document
may aquiese oneself to the jurisdiction of the court, which would nullify the standing established by the docs.
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Originally Posted by Weis
submitting a MFBP may waive the fact you haven't been joined
I may be off, though.
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No, you're not off, you're quite correct... Just calling it a 'Motion' may waive that fact.
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Originally Posted by Weis
Please elaborate, especially on the failure to join
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The BoP is only complicated by the fact that, the BoP, normally a common law doc, has been incorporated into the rules of Criminal procedure, and in doing so, it's jurisdiction is blurred. The same is the case with Habeas Corpus.
With the administrative tribunals bent on their presumptions of jurisdiction, anyone attempting to use the BoP, has their work cut out for them. The last thing we need is to give the courts another opportunity to presume jurisdiction.
FAILURE TO JOIN
When in court, accused of a victumless crime, what the soveriegn seeks, is to maintain his "failure to join" status. His goal is to circumvent the controversy, without engaging in the controversy, and to do this, there are a series of steps that must be established, and maintained.
The problem is like a series of domino's. The action (or inaction) of the next domino, is dependent on the action (or inaction) of the previous. Consistancy is the key.
Bear with me here....
The sovereign needs to challenge jurisdiction and venue, without crossing the line and unwittingly submitting themselves to the courts authority (waiving jurisdiction). Once challenged, jurisdiction and venue must be proven on the record, to exist. In order to do this, He must first appear "specially"
Appearance: In practice. A coming into court as party to a suit, whether as plaintiff or defendant. The formal proceeding by which a defendant submits himself to the jurisdiction of the court.
Flint v. Comly, 97 Me. 251
Classification. An appearance may be either general or
special; the former is a simple unqualified or unrestricted submission to the jurisdiction of the court, the latter a
submission to the jurisdiction for some specific purpose only,
not for all the purposes of the suit.
National Furnace Co. v. Moline Mallebale Iron Work (cc.) 18 Fed 864." Black's Law Dictionary, 2nd Ed. (1910) (Emphasis mine)
Did you notice that both represent a "submission to the jurisdiction"? That's why this is such a delicate matter.
"A
special appearance is an appearance
solely for the purpose of testing the jurisdiction:
Bailey v. Schrada, 34 Ind 261; Huff v. Shepard, 58 Mo 246. (Emphasis mine)
Making a special appearance and challenging jurisdiction must be done immediately or the stance will be deemed waived. I know jurisdiction can be challenged at any time, but it will only be considered, if it is done in the very beginning. To do so, puts the burden of proof on them. To challenge jurisdiction later, leaves the burden of proof on you, as, the court has already determined that you have waived it.
So, when you make a special appearance, you must stay within the 'special purpose' of the appearance (to challenge jurisdiction) or the courts will presume it is a general appearance. If you challenge jurisdiction later, it is very likely that you will have already waived jurisdiction.
Any waiver can cause an estoppel and your position is lost...
having been made void by your own waiver. In other words, draw a line in the sand, and stay behind it.
Next, to further keep from aquiesing, while maintaining our 'failure to join', care must be taken, not to cooperate (ask questions or seek permission)
on any level, with the court. We need to steer clear of what is called 'Leave of the Court'.
LEAVE OF COURT.
Permission obtained from a court to take some action which, without such permission, would not be allowable; as, to receive an extension of time to answer complaint.
Fed.R.Civil P. 6." Blacks Law Dictionary, 5th Ed. (1979) (Emphasis mine)
If the court grants leave, it has given something that it
must have jurisdiction to give. To even ask a question, allows them to presume you have requested leave of the court.
In order to keep from crossing this line, we must 'specially appear' in "propria persona"
PROPRIA PERSONA. In his own person. It is a rule in pleading that pleas to the jurisdiction of the court must be pleaded in propria persona, because,
if pleaded by attorney, they admit the jurisdiction, as an attorney is an officer of the court, and he is presumed to plead
after obtaining leave, which admits the jurisdiction.
Lawes on Pl. 91. An appearance may be in propria persona, and need not be by attorney."
2 Bouvier's Law Dictionary, 8th Ed. (1859) (Emphasis mine)
So, the reason we appear in propria persona is because
no leave of the court is necessary, to appear.
It's also important for us to appear Sui Juris...
SUI JURIS. Lat. Of his own right; possessing full social and civil rights;
not under any legal disability, or the power of another, or guardianship. Having capacity to manage one's own affairs; not under legal disability to act for one's self.
Story, Ag. S 2." Black's Law Dictionary, 2nd Ed. (1910)
By doing so, we imply that we appear specially
as a matter of our own right,
without leave from the court, and that
we are not under any legal disability of any legislative act, state or federal ! Even a drivers license could void sui juris status.
The court works very hard to insure that venue and jurisdiction in personam cannot be questioned, by acquiring some form of waiver or acquiescence from the accused party.
You (Weis) gave a great example of another potential waiver in
this thread, when you said:
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people are just filing boilerplate stuff and would impeach themselves by showing that they are incompetent to defend their paperwork (Emphasis mine)
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One last time... (I can't say this enough)
Any waiver can cause an estoppel and our position is lost, being made void by our own waiver.
So, why bother with the BoP at all, when there are other docs, that will provide the same purpose, without the risk of estoppel?
Having read all this, take another look at my
opening dialog.....
Hope this helps...
For HIS Glory,
Akira
