In Personam Jurisdiction

[weishaupt1776]

Excellent Study on In Personam Jurisdiction

THis thread is to constitute a discussion of In Personam Jurisdiction and preferably how it ties in with the Special appearance.

Not Subject matter Jurisdiciton

If this starts to go off point, your post will be moved or deleted

The reason i have chosen this topic is for the special appearance

When one challenges SMJ, they have appeared generally

Special appearance is for In Personam Jurisdictional challenges ONLY.

read the cites below:

[weishaupt1776]

"The mere use of the term "special" does not necessarily cause an
appearance to be such. To constitute a special appearance only, it
must be special in name and in fact, and must not do other than to
ask the court to hold that it has no jurisdiction."

State Ex Rel. Livington v. Superior Court, 175 Wash. 405, 408, 27
P.2d 729 (1933).

========

"[1] The question is not whether the original motion to quash the
writ of garnishment was well taken (it now seems to be conceded that
it was not), but whether that motion was a general appearance in the
action. If so, the later motion for a change of venue, though
otherwise in due form and showing the necessary facts, was properly
denied because not made at the time of the first appearance in the
cause and therefore waived. On the other hand, if the motion to
quash the writ of garnishment was a special appearance only, then
the motion for the change of venue was made at the time of the first
appearance in the action, and should have been granted.

[2] The only question now presented is as to the character of the
appearance by motion to quash the writ. Was it a special or a
general appearance? Our statute on appearances, Rem. Rev. Stat., SS
241, reads:

{175 Wash. 405, 408}

"A defendant appears in an action when he answers, demurs, makes any
application for an order therein, or gives the plaintiff written
notice of his appearance. After appearance a defendant is entitled
to notice of all subsequent proceedings; but when a defendant has
not appeared, service of notice or papers in the ordinary
proceedings in an action need not be made upon him. Every such
appearance made in an action shall be deemed a general appearance,
unless the defendant in making the same states that the same is a
special appearance."

The mere use of the term "special" does not necessarily cause an
appearance to be such. To constitute a special appearance only, it
must be special in name and in fact, and must not do other than to
ask the court to hold that it has no jurisdiction.

The language of the motion here goes no further than the language of
the motion considered in Matson v. Kennecott Mines Co., 103 Wash.
499, 175 Pac. 181. Here the court was asked to "vacate, set aside
and quash." There the language was in the same identical words, and
we there said:

"Clearly there was here no invoking of the jurisdiction of the court
by asking for the rendition of a judgment or order in the case such
as the court can only render when it has jurisdiction of the persons
of the parties to the action. Under our statute, Rem. Code, SS 241,
and under all the authorities, this constitutes a special appearance
only."

See, also, Rauch v. Zander, 134 Wash. 40, 234 Pac. 1039.

[3] But it seems to be urged that, because the motion was directed
to a writ of garnishment rather than to a summons, therefore the
object and purpose was to secure the release of the fund garnisheed,
and for that reason the motion went beyond a mere challenge to the
jurisdiction.

{175 Wash. 405, 409}

The release of the fund which would inevitably follow the quashing
of the writ would be a mere incident. No writ could be quashed
without releasing the property which was thereby impounded. To
follow respondent's reasoning in this respect, would be to hold that
one could never challenge the jurisdiction to issue a writ of
attachment or garnishment without thereby appearing generally in the
cause.

There seem to be cases so holding, but the majority rule, and we
think the better and general rule, is to the contrary. The majority
rule is well stated by the United States supreme court in Davis v.
Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 217 U. S. 157,
as follows:

"In other words, it is contended that the person over whom personal
jurisdiction has not been obtained cannot appear specially to set
aside the attachment of his property, which we must assume in order
to completely exhibit the contention, is valid. We cannot concur in
the contention. It is supported, it is true, by some cases, but it
is opposed by more. Drake on Attachments, SS 112, and cases cited.
The stronger reasoning we think too is against the contention. A
court without personal service can acquire no jurisdiction over the
person, and when it attempts to assert jurisdiction over property it
should be open to the defendant to specially appear to contest its
control over such property; in other words to contest the ground of
its jurisdiction. The jurisdiction of the court, therefore, depended
upon the attachment, and the appearance to set that aside was an
appearance to object to the jurisdiction. In other words, the
defendant was only in court through its property, and it appeared
specially to show that it was improperly in court."

A multitude of authorities support this rule. We cite but a few of
the many, and have selected those mainly because of their full and
enlightening discussion of the question. 2 R. C. L. 332, SS 12;
Adams v. {175 Wash. 405, 410} Trepanier Lumber Co., 117 Ohio 298,
158 N. E. 541, 55 A. L. R. 1118, and an exhaustive note following;
Coffman v. Brandhoeffer, 33 Neb. 279, 50 N. W. 6; Belknap v.
Charlton, 25 Ore. 41, 34 Pac. 758; Price v. Hanson, 60 Utah 29, 206
Pac. 272; Tabor v. Baer, 107 W. Va. 594, 149 S. E. 675.


State Ex Rel. Livington v. Superior Court, 175 Wash. 405, 407-410,
27 P.2d 729 (1933).

---

Source: Municipal Research & Services Center of Washington;
< http://www.mrsc.org/ >

[weishaupt1776]

Special Appearance--Preserving Affidavits on Appeal

"[1] APPEAL AND ERROR - AFFIDAVITS - INCLUSION IN STATEMENT OF
FACTS - NECESSITY. Affidavits supporting or opposing motions must be
brought up in the statement of facts; and they cannot be considered
upon appeal where they appear only in the transcript.

[2] APPEARANCE - PROCEEDINGS CONSTITUTING - GENERAL APPEARANCE AFTER
SPECIAL APPEARANCE. An answer on the merits by a defendant foreign
corporation in an action on contract was a general appearance, where
a prior special appearance to quash the service of the summons and
complaint was not preserved; in view of RCW 4.28.210, which provides
that "A defendant appears . . . when he answers . . ." and
that "Every appearance shall be deemed a general appearance, unless
the defendant . . . states that the same is a special appearance."

[3] APPEAL AND ERROR - BRIEFS - SETTING OUT FINDINGS. Where findings
of fact are not set out in the appellant's brief as required by Rule
on Appeal 43, they are verities.

Appeal from a judgment of the superior court for Pierce county, No.
128049, Hale, J., entered November 19, 1956, upon findings in favor
of the plaintiffs, in an action on contract, tried to the court.
Affirmed.

Dean W. Mullin (Thomas K. Hudson and Alice Loveland, of counsel),
for appellant.

Paul Hoffman, Jr., and Robert R. Briggs, for respondents.

PER CURIAM. -

Respondents, who were plaintiffs below, sued the appellant Colorado
corporation, defendant below, upon matters arising out of a written
contract for the purchase of machines. By special appearance,
appellant moved to quash the service of the summons and complaint
upon it because appellant, a Colorado corporation, had not qualified
to do business in Washington and had never done business here. The
motion was denied, and thereafter, without preserving its special
appearance, appellant answered on the merits. After trial the court
found for the respondents
---------------------
«1» Reported in 316 P. (2d) 465.

[2] See 93 A. L. R. 1302; 3 Am. Jur. 807.
---------------------

{51 Wn.2d 154, 155}

and entered judgment against appellant in excess of eight thousand
dollars.

The first error assigned is the overruling of the appellant's motion
to quash the service of the summons and complaint. This cannot be
considered for two reasons:

(1) The factual showing upon which the motion was heard and decided
is neither identified in the motion or order denying it, nor brought
up in the statement of facts, although there is one affidavit in the
transcript.

[1] By a long line of cases over a period of more than sixty years,
it is settled law that affidavits supporting or opposing motions
appearing only in the transcript cannot be considered upon appeal.
The affidavits or other factual showing upon which such motions are
determined must be brought up in the statement of facts and cannot
be otherwise considered. Whitehead v. Satran, 37 Wn. (2d) 724, 225
P. (2d) 888; Sellers v. Pacific Wrecking & Salvage Co., 34 Wash.
111, 74 Pac. 1056; Griggs v. MacLean, 33 Wash. 244, 74 Pac. 360;
Norfor v. Busby, 19 Wash. 450, 53 Pac. 715; Jacobson v. Lunn, 16
Wash. 487, 48 Pac. 237; Heffner v. Board of County Com'rs of
Snohomish County, 16 Wash. 273, 47 Pac. 430. The rule is otherwise
if the affidavits or other evidentiary materials are identified in
the judgment or order. State v. Fackrell, 44 Wn. (2d) 874, 271 P.
(2d) 679, in which many of the other cases are referred to; State ex
rel. Potter v. Maybury, 161 Wash. 142, 296 Pac. 566.

[2] (2) After the motion to quash was overruled, the appellant
answered on the merits without preserving its special appearance,
thereby making its appearance general under RCW 4.28.210.

"A defendant appears in an action when he answers, demurs, makes any
application for an order therein, or gives the plaintiff written
notice of his appearance. After appearance a defendant is entitled
to notice of all subsequent proceedings; but when a defendant has
not appeared, service of notice or papers in the ordinary
proceedings in an action need not be made upon him. Every such
appearance made in an action shall be deemed a general appearance,
unless the defendant in making the same states that the same is a
special appearance."

{51 Wn.2d 154, 156}

Kubey v. Travelers' Protective Association, 109 Wash. 453, 187 Pac.
335; Steenstrup v. Toledo Foundry & Machine Co., 66 Wash. 101, 119
Pac. 16, Annotated Cases, 1913C 427; Bellingham v. Linck, 53 Wash.
208, 101 Pac. 843; Bain v. Thoms, 44 Wash. 382, 87 Pac. 504; Gaffner
v. Johnson, 39 Wash. 437, 81 Pac. 859; Hodges v. Price, 38 Wash. 1,
80 Pac. 202; Morris v. Healy Lbr. Co., 33 Wash. 451, 74 Pac. 662;
Walters v. Field, 29 Wash. 558, 70 Pac. 66.

[3] The remaining assignments of error involve factual disputes. One
assignment is that the court erred in its finding on damage but none
of the findings of fact are set out in the appellant's brief as
required by Rule on Appeal 43, 34A Wn. (2d) 47, as amended,
effective January 2, 1953.

"In appeals from all actions at law or in equity tried to the court
without a jury, the findings of fact made by the court will be
accepted as the established facts in the case unless error is
assigned thereto. No error assigned to any finding or findings of
fact made or refused will be considered unless so much of the
finding or findings as is claimed to be erroneous shall be set out
verbatim in the brief."

The findings are verities. Howard v. Barrington, 50 Wn. (2d) 225,
310 P. (2d) 537; Judd v. Bernard, 49 Wn. (2d) 619, 304 P. (2d) 1046;
Pettaway v. Commercial Automotive Service, 49 Wn. (2d) 650, 306 P.
(2d) 219; McKennon v. Anderson, 49 Wn. (2d) 55, 298 P. (2d) 492;
Kaul v. Chehalis, 45 Wn. (2d) 616, 277 P. (2d) 352.

The facts found are amply sufficient to support the judgment, and no
useful purpose would be served by restating them.

The judgment is affirmed.


Zarelli v. Superior Distributing Corp., 51 Wn.2d 154, 316 P.2d 465
(1957).


=======
Source: Municipal Research & Services Center of Washington;
< http://www.mrsc.org >
=======


Those of us interested in challenging jurisdiction by way of an
initial special appearance definitely need to research AND post more
black-letter law on the subject matter in order to improve our
success/survival rate in the courts and on the street. I agree, if
the initial discussion with LEO does not result in an instant
dismissal (no citation, no custodial arrest) then one must avoid the
pitfalls "Just-Ice" by surrendering to the jurisdiction imposed by
Mr. Agent W. Gun and prior to a personalized invitation to meet the
prosecutor, Mr. E.Z. Sleazy, and his bed-fellow, Judge U. R. Screwed.

Recently i have key-worded "special appearance" in Washington case-
law and am busy sorting through the results (188 hits, most seem
prior to 1960) . Unfortuantely, as we all realize, with case
opinion law there is not much record of a pure procedure (i.e., if
the issue is properly presented then 'the record is basically lost'
due to a dismissal of the case prior to ANY appeal). But then,
history plainly DEMONstrates that the duty of retaining individual
Liberty isn't a simple task.

It's anological to Hansel & Gretel getting lost because the birds
ate up the crumbs of bread used to find the right path back home--
Or, it is anological to Dorothy and her unconventional friends
getting disoriented while frolicking through the poppy fields.
Major difference is that the real world is a sophisticated "War-
Zone, where one is outnumbered by the opposing team that is known to
be sadistic, the rules of engagement are often distorted, the
opposition has unlimited resources, and 'they' "play for keeps". It
certainly makes for a cause for celebration when one can walk away
basically unscathed.

[weishaupt1776]

I clipped this from a motion where there was a dismissal:

Don't know where the authorites are for it, so this warrants more research:
There are six elements that must be met for in personnam jurisdiction to be proven, thereby giving this court the jurisdiction necessary over the physical body of Michael Robert; Berg needed to move forward and hear the charges brought against him in equity.*3 of these elements are matters of law, and three are matters of fact.


Element one (in law) is a court created in Law, organized and sitting.


Element two (in law) is the authority given to it to hear and determine causes of the kind in question.


Element three (in law) is the power given to it by law to render judgments such as it assumes to render.


Element four (in fact) is the authority over the parties to the case if the judgment is to bind them personally as a judgment in personnam (against the natural person).


Element five (in fact) is authority over the thing being adjudicated upon by it’s being within the courts territory, and seized if libel to be carried away.


Element six (in fact) is the authority to decide the question involved, witch is acquired by the question being submitted to it by the parties for a decision.

[mrg]

In personamJurisdiction

The first task to consider in any study is limiting the terms to be used, and concisely defining terms.

Bouvier's Law Dictionary 4th Edition Revised, and Black's Law Dictionary, 6th Edition, have been chosen for definition of terms because they are both generally accepted, respected, comprehensive, and widely used.

The former is of both historical importance, as well as an authoritative source for American law definitions.

Black's 6th Edition is one of the most, if not the most, referenced contemporary dictionary of American law.

Both Bouvier's and Black's Dictionaries are noted and acclaimed by scholars and law practitioners for the wealth of case law citations, and other source citations that are the direct sources for the definitions themselved, or exemplify, or further elucidate the definitions.

In defining the terms relevant to a study of in personam jurisdiction, there is suggested a fairly comprehensive list of terms necessary to the discussion and presentation of verbatim definitions, first from Bouvier's Dictionary (following a brief description of the work), and then, following, the same basic exercise, performed using Black's Dictionary (also preceded by a brief description of the work).

Emphasis added by use of boldface to terms within definitions, that need, of themselves, to be defined in order to realize a fuller understanding and comprehension of the terms of study relevant to the topic.

The layout has been altered in order to isolate and highlight, for ease of reading, and studying, each individual portion of the definitions.

The terms defined arose from terms appearing in the definition of the topic term, and the order in which they are presented is close to the order in which they appeared.

Terms that are in contrast to the topic term, arose in relation to the topic term, and need defining, because the definitions of each depends on the definition of the other for greater comprehension and understanding.

It is notable that these technical definitions are succint and lend themselves surprisingly well to ready comprehension by the layman.

Where a term's definition might seem obscure or technical, it usually becomes clearer in light of defining the terms within the definition, that perhaps make comprehension a bit difficult.

A Law Dictionary, 1839
Bouvier, John, 1787-1851.

John Bouvier was born in France, but came to the United States as a young man and began practicing law in Philadelphia.

Like many of his generation, Bouvier used his preface to justify his endeavor, stating the irrelevance of English legal dictionaries to the legal system of the United States.

He wanted to create a totally new law dictionary that would address the American legal system, so he derived his definitions almost wholly from customs, court decisions, and statutes of the United States.

In addition, Bouvier included entries for all the states that had formed the union as of 1839.

A large 2-volume work, Bouvier's dictionary has been especially useful for understanding obsolete terms given in older authorities, amplifying their meanings in the American context.

Jurists all over the country praised the work immediately, giving it unqualified commendation.

The work is cogently written and well researched; Bouvier added copiously to each new edition and rewrote several articles, and many of the best-known legal scholars have contributed to its revisions.

Bouvier published three editions in twelve years and was preparing a fourth at the time of his death in 1851.

By the year 1886, when it was first revised, there had been fifteen editions.

The work is still widely used.

(It has been suggested that Bouvier's is the source of choice for lawyers and judges.)



IN PERSONAM, remedies.
A remedy in personam, is one where the proceedings are against the person, in contradistinction to those which are against specific things, or in rem. (q. v.) 3 Bouv. Inst. n. 2646.

PERSON. This word is applied to men, women and children, who are called natural persons.

In law, man and person are not exactly synonymous terms.

Any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c.

A person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. n. 137.

2. It is also used to denote a corporation which is an artificial person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Wooddes. Lect. 116; Bac. Us. 57; 1 Mod. 164.

ARTIFICIAL. What is the result of, or relates to, the arts; opposed to natural; thus we say a corporation is an artificial person, in opposition to a natural person.

Artificial accession is the uniting one property to another by art, opposed to a simple natural union. 1 Bouv. Inst. n. 503.

ARTIFICIAL PERSON. In a figurative sense, a body of men or company are sometimes called an artificial person, because the law associates them as one, and gives them various powers possessed by natural persons.

Corporations are such artificial persons. 1 Bouv. Inst. n. 177.

3. But when the word "Persons" is spoken of in legislative acts, natural persons will be intended, unless something appear in the context to show that it applies to artificial persons. 1 Scam. R. 178.

[4.,5., obsolete]

6. Persons are also divided into citizens, (q. v.) and aliens, (q. v.) when viewed with regard to their political rights.

When they are considered in relation to their civil rights, they are living or civilly dead; vide Civil Death; outlaws; and infamous persons.

IN REM, remedies.
This technical term is used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions which are said to be in personam.

Proceedings in rem include not only judgments of property as forfeited, or as prize in the admiralty, or the English exchequer, but also the decisions of other courts upon the personal status, or relations of the party, such as marriage, divorce, bastardy, settlement, or the like. 1 Greenl. Ev. 525, 541.
[indent]PERSONAL.
1. Belonging to the person.

2. This adjective is frequently employed in connection with substantives, things, goods, chattels, actions, right, duties, and the like as personal estate, put in opposition to real estate; personal actions, in contradistinction to real actions; personal rights are those which belong to the person; personal duties are those which are to be performed in person.

PERSONAL ACTIONS. Personal actions are those brought for the specific goods and chattels; or for damages or other redress for breach of contract or for injuries of every other description; the specific recovery of lands, tenements and hereditaments only excepted. Vide Actions, and 1 Com. Dig. 206, 450; 1 Vin. Ab. 197; 3 Bouv. Inst. n. 2641, et. seq.

PERSONAL PROPERTY. The right or interest which a man has in things personal; it consists of things temporary and movable, and includes all subjects of property not of a freehold nature, nor descendable to the heirs at law.

Things of a movable nature, when a right can be had in them, are personal property, but some things movable are not the subject of property; as light and air.

Under the term personal property, is also included some property which is in its nature immovable, distinguished by the name of chattels real, as an estate for years; and fixtures (q . v.) are sometimes classed among personal property.

1. A crop growing in the ground is considered personal property. so far as not to be considered an interest in land, under the statute of frauds. 11 East, 362; 1 Shopl. 337; 5 B & C. 829; 10 Ad. & E. 753; 9 B. & C. 561; sed vide 9 B. & C. 561.

2. It is a general principle of American law, that stock held in corporations, is to be considered as personal property; Walk. Introd. 211; 4 Dane's Ab. 670; Sull. on Land Tit. 71; 1 Hill. Ab. 18; though it was held that such stock was real estate; 2 Conn. R. 567; but, this being found inconvenient, the law was changed by the legislature.

3. Property in personal chattels is either absolute or qualified; absolute, when the owner has a complete title and full dominion over it; qualified, when -he has a temporary or special interest, liable to be totally divested on the happening of some particular event. 2 Kent, Com. 281.

4. Considered in relation to its use, personal property is either in possession, that is, in the actual enjoyment of the owner, or, in action, that is, not in his possession, but in the possession of another, and recoverable by action.

5. Title to personal property is acquired.

1st. By original acquisition by occupancy; as, by capture in war; by finding a lost thing.

2d. By original acquisition; by accession.

3d. By original acquisition, by intellectual labor; as, copyrights and patents for inventions.

4th. IV transfer, which is by act of law.

1. By forfeiture.
2. By judgment.
3. By insolvency.
4. By intestacy.
5th. By transfer, by act of the party.

1 . Gifts.
2. Sale. Vide, generally, 16 Vin. Ab. 335; 8 Com. Dig. 474; Id. 562; 1 Supp. to Ves. Jr. 49, 121, 160, 198, 255, 368, 9, 399, 412, 478; 2 Ibid. 10, 40, 129, 290, 291, 341; 1 Vern. 3, 170, 412; 2 Salk. 449; 2 Ves. Jr. 59, 336, 176, 261, 271, 683; 7 Ves. 453. See Pew; Property; Real property.

[mrg]

PARTY, practice, contracts.
When applied to practice, by party is understood either the plaintiff or defendant.

In contracts, a party is one or more persons who engage to perform or receive the performance of some agreement. Vide Parties to contrads; Parties to 'actions; Parties to a suit in equity.
[/indent]2. Courts of admiralty enforce the performance of a contract by seizing into their custody the very subject of hypothecation; for in these case's the parties are not personally bound, and the proceedings are confined to the thing in specie. Bro. Civ. and Adm. Law, 98; and see 2 Gall. R. 200; 3 T. R. 269, 270.

HYPOTHECATION, civil law. This term is used principally in the civil law; it is defined to be a right which a creditor has over a thing belonging to another, and which consists in the power to cause it to be sold, in order to be paid his claim out of the proceeds.

2. There are two species of hypothecation, one called pledge, pignus, and, the other properly denominated hypothecation.

Pledge is that species , of hypothecation which is contracted by the delivery of the debtor to the creditor, of the thing hypothecated.

Hypothecation, properly so called, is that which is contracted without delivery of the thing hypothecated. 2 Bell's Com. 25, 5th ed.

3. Hypothecation is further divided into general and special when the debtor hypothecates to his creditor all his estate and property, which he has, or may have, the hypothecation is general; when the hypothecation is confined to a particular estate, it is special.

4. Hypothecations are also distinguished into conventional, legal, and tacit.

1. Conventional hypothecations are those which arise by the agreement of the parties. Dig. 20, 1, 5.

5. - 2. Legal hypothecation is that which has not been agreed upon by any contract, express or implied; such as arises from the effect of judgments and executions.

6. - 3. A tacit, which is also a legal hypothecation, is that which the law gives in certain cases, without the consent of the parties, to secure the creditor; such as,

1st. The lien which the public treasury has over the property of public debtors. Code, 8, 15, 1.

2d. The landlord has a lien on the goods in the house leased, for the payment of his rent. Dig. 20, 2, 2; Code, 8, 15, 7, 3d.

The builder has a lien, for his bill, on the house he has built. Dig. 20, 1. 4th, The pupil has a lien on the property of the guardian for the balance of his account. Dig. 46, 6, 22; Code, 6, 37, 20. 5th.

There is hypothecation of the goods of a testator for the security of a legacy he has given. Code, 6, 43, 1.

7. In the common law, cases of hypothecation, in the strict sense of the civil law, that is, of a pledge of a chattel, without possession by the pledgee, are scarcely to be found; cases of bottomry bonds and claims for seamen's wages, against ships are the nearest approach to it; but these are liens and privileges rather than hypothecations. Story, Bailm. §288.

It seems that chattels not in existence, though they cannot be pledged, can be hypothecated, so that the lien will attach, as soon as the chattel has been prodced. 14 Pick. R. 497. Vide, generally, Poth. de l'Hypoth´que; Poth. Mar. Contr. translated by Cushing, note. 26, p. 145; Commercial Code of France, translated by Rodman, note 52, p. 351; Merl. R´pertoire, mot Hypoth´que, where the subject is fully considered; 2 Bro. Civ. Law, 195; Ayl. Pand. 524; 1 Law Tracts, 224; Dane's Ab. h. t.; Abbott on Ship. Index, h. t.; 13 Ves. 599; Bac. Ab. Merchant, &c. G; Civil Code of Louis. tit. 22, where this sort of security bears the name of mortgage. (q. v.)


3. There are cases, however, where the remedy is either in personam or in rem.

Seamen, for example, may proceed against the ship or cargo for their wages, and this is the most expeditious mode; or they may proceed against the master or owners. 4 Burr. 1944; 2 Bro. C. & A. Law, 396. Vide, generally, 1 Phil. Ev. 254; 1 Stark. Ev. 228; Dane's Ab. h. t.; Serg. Const. Law, 202, 203, 212.

JURISDICTION,
Practice.
A power constitutionally conferred upon a judge or magistrate, to take cognizance of, and decide causes according to law, and to carry his sentence into execution. 6 Pet. 591; 9 John. 239.

COGNISANCE, practice.
Sometimes signifies jurisdiction and juudicial power, an sometimes the hearing of a matter judicially. It is a term used in the acknowledgment of a fine. See Vaughan's Rep. 207.

The tract of land or district within which a judge or magistrate has jurisdiction, is called his territory, and his power in relation to his territory is called his territorial jurisdiction.

2. Every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence or carrying it into execution, is null.

An inferior court has no jurisdiction beyond what is expressly delegated. 1 Salk. 404, n.; Gilb. C. P. 188; 1 Saund. 73; 2 Lord Raym. 1311; and see Bac. Ab. Courts, &c., C, et seq; Bac. Ab. Pleas, E 2.

3. Jurisdiction is original, when it is conferred on the court in the first instance, which is called original jurisdiction; (q. v.) or it is appellate, which is when an appeal is given from the judgment of another court.

Jurisdiction is also civil, where the subject-matter to be tried is not of a criminal nature; or criminal, where the court is to punish crimes.

Some courts and magistrates have both civil and criminal jurisdiction. Jurisdiction is also concurrent, exclusive, or assistant.

Concurrent jurisdiction is that which may be entertained by several courts.

It is a rule that in cases of concurrent jurisdictions, that which is first seized of the case shall try it to the exclusion of the other.

Exclusive jurisdiction is that which has alone the power to try or determine the Suit, action, or matter in dispute.

assistant jurisdiction is that which is afforded by a court of chancery, in aid of a court of law; as, for example, by a bill of discovery, by the examination of witnesses de bene esse, or out of the jurisdiction of the court; by the perpetuation of the testimony of witnesses, and the like.

4. It is the law which gives jurisdiction; the consent of, parties, cannot, therefore, confer it, in a matter which the law excludes. 1 N. & M. 192; 3 M'Cord, 280; 1 Call. 55; 1 J. S. Marsh. 476; 1 Bibb, 263; Cooke, 27; Minor, 65; 3 Litt. 332; 6 Litt. 303; Kirby, 111; 1 Breese, 32; 2 Yerg. 441; 1 Const. R. 478.

But where the court has jurisdiction of the matter, and the defendant has some privilege which exempts him from the jurisdiction, he may waive the privilege. 5 Cranch, 288; 1 Pet. 449; 8 Wheat. 699; 4 W. C. C. R. 84; 4 M'Cord, 79; 4 Mass. 593; Wright, 484. See Hardin, 448; 2 Wash. 213.

5. Courts of inferior jurisdiction must act within their jurisdiction, and so it must appear upon the record. 5 Cranch, 172 Pet. C. C. R. 36; 4 Dall. 11; 2 Mass. 213; 4 Mass. 122; 8 Mass. 86; 11 Mass. 513; Pr. Dec. 380; 2 Verm. 329; 3 Verm. 114; 10 Conn. 514; 4 John. 292; 3 Yerg. 355; Walker, 75; 9 Cowen, 227; 5 Har. & John. 36; 1 Bailey, 459; 2 Bailey, 267.

But the legislature may, by a general or special law, provide otherwise. Pet. C. C. R. 36. Vide 1 Salk. 414; Bac. Ab. Courts, &c., C. D; Id. Prerogative, E 6; Merlin, Rep. h. t.; Ayl. Pat. 317, and the art.

Competency.
As to the force of municipal law beyond the territorial jurisdiction of the state, see Wheat. Intern. Law, part a, c. 2, §7, et seq.; Story, Confl. of Laws, c. 2; Huberus, lib. 1, t. 3; 13 Mass. R. 4 Pard. Dr. Com. part. 6, t. 7, c. 2, §1; and the articles Conflict of Laws; Courts of the United States. See generally, Bouv. Inst. Index, h. t.
A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION
John Bouvier Revised Sixth Edition, 1856
http://www.constitution.org/bouv/bouvier.htm

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Black's Law Dictionary

Black's Law Dictionary has traditionally been regarded as the definitive legal dictionary for the law of the United States. It was founded by Henry Campbell Black. It has been cited as legal authority in many Supreme Court cases. It is the reference of choice for definitions in legal briefs and court opinions.

The first edition was published in 1891, and the second edition in 1910 long before the first edition of the Oxford English Dictionary was completed in 1928. Earlier editions of the book also provided case citations for the term cited, which some lawyers saw as its most useful function, providing a useful starting point with leading cases.


In personam Against the person.

(

Person In general usage, a human being (i.e. natural person), though by statute term may include labor organizations, partnerships, associations, corporations, legal representatives, trustees in bankruptcy, or receivers. See e.g. National Labor Relations Act, section 2(1), 29 U.S.C.A., section 152; Uniform Partnership Act, section 2.)

[In personam:] Action seeking judgment against a person involving his personal rights and based on jurisdiction of his person, as distinguished from a judgment against property (i.e. in rem).

Type of jurisdiction or power which a court may acquire over the defendant himself in contrast to jurisdiction over his property.

In personam jurisdiction Power which a court has over the defendant himself in contrast to the court’s power over the defendant’s interest in property (quasi in rem) or power over the property itself (in rem).

A court which lacks personal jurisdiction is without power to issue an in personam judgment. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&nabby=case&vol=95&page=714&lin kurl=http%3A%2Fwww.law.umich.edu%2F&graphurl=http% 3A%2F%2Fwww.findlaw.com%2Fimage%2Fmichigan.gif
See also in rem, Jurisdiction in personam

Jurisdiction in personam Power which a court has over the defendant’s person and which is required before a court can enter a personal or in personam judgment. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565

It may be acquired by an act of the defendant within a jurisdiction under a law by which the defendant impliedly consents to the jurisdiction of the court e.g. operation of a motor vehicle on the highways of the state confers jurisdiction of operator and owner on courts of state. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091

A judgment in personam brings about a merger of the original cause of action into the judgment and thereafter the action is upon the the judgment and not on the original cause of action. See also In rem; Jurisdiction quasi in rem.

Jurisdiction over person The legal power of the court to render a personal judgment against a party to an action or a proceeding. Imperial v. Hardy, La., 302 So.2d. 5, 7. See, Jurisdiction in personam.

Personal jurisdiction The power of a court over the person of a defendant in contrast to the jurisdiction of a court over a person’s property or his interest therein; in personam, as opposed to in rem jurisdiction. See in personam jurisdiction.

In personam actio est, qua cum eo agimus qui obligatus est nobis ad faciendum aliquid vel dandum
The action in personam is that by which we sue him who is under obligation to us to do something or give something.


In rem A technical term used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions, which are said to be in personam.

“In rem” proceedings encompass any action brought against person in which essential purpose of suit is to determine title to or to affectuate interests in specific property located within territory over which court has jurisdiction. ReMine ex rel. Liley v. District Court for City and County of Denver, Colo., 709 P.2d. 1379. 1382.

It is true that in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of property, without reference to the title of individual claimants; but in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein.

Such are cases commenced by attachment against the property of debtors, or instituted to to partition real estate, foreclose a mortgage, or enforce a lien. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

In the strict sense of the term, a proceeding “in rem” is one which is taken directly against property or one which is brought to enforce a right in the thing itself.

Actions in which the court is required to have control of the thing or object and in which an adjudication is made as to the object which binds the whole world and not simply the interests of the parties to the proceeding. Flesch v. Circle CityExcavation & Rental Corp,., 137 IndApp. 695, 210 N.E. 2d 865

Quasi in rem A term applied to proceedings which are not strictly and purely in rem, but are brought against the defendant personally, though the real object is to deal with particular property or subject property to the discharge of claims asserted; for example, foreign attachment, or proceedings to foreclose a mortgage, remove a cloud from title, or effect a partition. Freeman v. Alderson, 119 U.S. 185, 7 S.Ct. 165, 30 L.Ed. 372.

Discharge To release; liberate; annul; unburden; disencumber; dismiss.

To extinguish an obligation (e.g. a person's liability on an instrument); terminate employment of a person; release, as from prison, confinement, or military service.

Discharge is a generic term; its principal species are rescission, release, accord and satisfaction, performance, judgment, composition, bankruptcy, merger.

In contract law, discharge occurs either when the parties have performed their obligations in the contract, or the operation of law releases the parties from performing.

As applied to demands, claims, rights of action, incumbencies, etc., to discharge the debt or claim is to extinguish it, to annul its obligatory force, to satisfy it.

And here also the term is generic; thus a debt, a mortgage, a legacy, may be discharged by payment or performance, or by any act short of that, lawful in itself, which the creditor accepts as sufficient.

UCC section 3-601 et seq. governs discharge of commercial instruments.

To discharge a person is to liberate him from binding force of an obligation, debt, or claim. See also Performance. Release.

In rem jurisdiction Refers to an action that is taken directly against the defendant’s property.

The term may be contrasted with in personam jurisdiction.

Power over a thing possessed by a court which allows it to seize and hold the object for some legal purpose; e.g. boat on which narcotics are found. Calero Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 See also Jurisdiction in rem; Jurisdiction quasi in rem.

Jurisdiction in rem Power of a court over a thing so that its judgment is valid as against the rights of every person in the thing, e.g. a judgment or decree of registration or title to land. See also In rem; Jurisdiction quasi in rem.

Jurisdiction quasi in rem The power of a court over a the defendant’s interest in property, real or personal, within the geographical limits of the court.

The court’s judgment or decree binds only the the defendant’s interest and not the whole world as in the case of jurisdiction in rem.

The original cause of action is not merged in the judgment as in the case of a judgment predicated on personal jurisdiction.

In rem actio est per quam rem nostram quae ab alio possidetur petimus, et semper adversus cum est qui rem possidet.
The action in rem is that by which we seek our property which is possessed by another, and is always against him who possesses the property.

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In propria personam In one’s own proper person.

It was formerly a rule in pleading that pleas to the jurisdiction of the court must be plead in propria personam because if pleaded by an attorney they admit the jurisdiction, as an attorney is an officer of the court, and he is presumed to plead after having been granted leave, which admits the jurisdiction. See Pro se.

Pro se For one’s own behalf; in person.

Appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in court.

Retain To continue to hold, have , use, recognize, etc.

To engage the services of an attorney or counselor to manage a specific matter or action, or all legal matters in general. See Retainer.

Retainer The act of withholding what one has in one’s own hands by virtue of some right.

In the practice of law, when a client hires an attorney to represent him, the client is said to have retained the attorney.

This act of employment is called the retainer.

The retainer agreement between the client and attorney sets forth the nature of services to be performed, costs, expenses, and related matters.

If the client employs the attorney for a specific case that is called a specific retainer.

In contrast, if a client hires a lawyer for a specific length of time (e.g. a year) rather than for a specific project, that is called a general reatainer.

The lawyer, during the period of the general retainer, may not accept any conflicting employment.

Appear To be properly before a court; as a fact or matter of which it can take notice.

To be in evidence; to be proved.

Coming into court by a party to a suit, whether plaintiff, or defendant. See Appearance.

Appearance A coming into court as party to a suit, either in person or by an attorney, whether as plaintiff or defendant.

The formal proceeding by which a defendant submits himself to the jurisdiction of the court.

The voluntary submission to a court’s jurisdiction.

In civil actions the parties do not normally actually appear in person but rather through their attorneys (who enter their appearance by filing written pleadings, or a formal written entry of appearance).

Also, at many stages of criminal proceedings, particularly involving minor offenses, the defendant’s attorney appears on his behalf. See e.g. Fed.R.Crim.P. 43.

An appearance may be either general or special; the former is a simple and 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.

A special appearance is for the purpose of testing or objecting to the sufficiency of service or the jurisdiction of the court over defendant without submitting to such jurisdiction;

a general appearance is made where the defendant waives defects of service and submits to the jurisdiction of the court. Insurance Co. of North America v. Kunin. 175 Neb. 260, 121 N.W.2d 372, 375, 376.

See also General appearance; Notice to appear.

Appearance by attorney An act of an attorney in prosecuting an action on behalf of his client .

Document filed in court in which attorney sets forth fact that he is representing a party to the action.

Appearance docket A docket kept by the clerk of the court in which appearances are entered, containing also a brief abstract of all proceedings in the cause.

Common law classifications At common law an appearance could either be compulsory or voluntary, the former where it was compelled by process served on the party, the latter where it was entered by his own will or consent, without the service of process, though process may be outstanding.

Also,

optional, when entered by a person who intervened in the action to protect his own interests, though not joined as a party;

conditional, when coupled by conditions as to its becoming or being taken as a general appearance;

gratis, when made by a party to the action, but before the service of any process or legal notice to appear;

de benne esse, when made provisionally or to remain good only upon a future

contingency; or when designed to permit a party to a proceeding to to refuse to submit his person to the jurisdiction of the court unless it was finally determined that he had forever waived that right;

subsequent, when made by a defendant after an appearance had already been entered for him by the plaintiff;

coporal, when the p[erson was physically present in court.

Initial appearance A court proceeding for a defendant charged with a felony, during which the judge advises the defendant of the charges against him and of his rights, decides upon bail and/or other conditions of release, and sets the date for a preliminary hearing. See e.g. Fed.R.Crim.P. 5.
Notice of appearance A notice given by defendant to a plaintiff that he appears in the action in person or by attorney.

Notice to appear Shorthand expression for the form of summons or order of notice in which the defendant is ordered to appear and show cause why judgment should not be entered against him FedR.CivilP. 4(b) See also Show cause order; Summons.

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Summons Instrument used to commence a civil action or special proceeding and is a means of acquiring jurisdiction over a party. In re Dell, 56 Misc.2d 1017, 290 N.Y.S.2d 287, 289.

Writ or process directed to the sheriff or other proper officer, requiring him to notify the person named that an action has been commenced against him in the court from where the process issues, and that he is required to appear, on a day named, and answer the complaint in such action.

Upon the filing of the complaint the clerk is required to issue a summons and deliver it for service to the marshall or to a person specially appointed to serve it. Fed.R.CivilP. 4(a) See also Alias summons; Process; Service.

In criminal law, an alternative to arrest generally used for petty or traffic offenses; a written order notifying an individual that he or she has been charged with an offense.

A summons directs the person to appear in court to answer the charge.

It is used primarily in instances of low risk, where the person will not be required to appear at a later date. See e.g. Fed.R.Crim.P. 4, 9.

Form and content of summons The summons shall be signed by the clerk,

be under the seal of the court, contain the name of the court, the names of the parties,

be directed to the defendant,

state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address,

and the time within which these rules require the defendant to appear and defend,

and shall notify him that in case of failure to do so judgment by default will be rendered against him for the relief demanded in the complaint.

When service is made pursuant to a statute or rule of court of a state, the summons or notice, or order in lieu of summons shall correspond as nearly as may be to that required by the statute or rule. FedR.CivilP. 4(b)

For form of summons in criminal cases see Fed.R.Crim.P. 4, 9.

John Doe summons

An order of the court to appear in a proceeding to one whose name is unknown.

A description of the person so ordered is required to appear on the summons to satisfy due process requirements.

Process

Civil and Criminal Proceedings

Process is defined as any means used by court to acquire or exercise its jurisdiction over a person or over specific property. Austin Liquor Mart, Inc. v. Department of Revenue, 18 Ill. App.3d 894, 310 N.E.2d 719, 728.

Means whereby court compells appearance of defendant before it or a compliance with its demands. Danbsby v. Dansby, 222 Ga. 118, 149 S.E.2d 252, 254.

See also Abuse (Process); Alias process,; Compulsory process; Constructive service of process; Due process of law; Executory process; Long arm statutes; Malicious abuse of process; Prohibition; Service (Service of process); Summons.

Alias process A second or further writ, summons, execution or subpoena, used when the first or earlier process has for any reason failed to accomplish its purpose.

(Void process
Such as was issued without power in the court to award it, or which the court had not acquired the jurisdiction to issue in the particular case, or which fails in some material respect to comply with the requisite form of legal process.

Abuse Everything which is contrary to good order established by usage.

Departure from reasonable use; immoderate or improper use.

Physical or mental maltreatment.

Misuse.

Deception.

Process

The gist of an action for "abuse of process" is improper use or perversion of process after it has been issued. Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413, 415.

A malicious abuse of legal process occurs where the party employs it for some unlawful object, not the purpose for which it is intended by the law to effect; in other words, a perversion of it. 500 West 174 St, v. Vasquez, 67 Misc.2d 993, 325 N.Y.S.2d 256, 258.

Thus, where the purpose of prosecution for issuance of a check without funds was to collect a debt, the prosecution is an abuse of criminal process.

Regular and legitimate use of process, although with a bad intention is not a "malicious abuse of process." Priest v. Union Agency, 174 Tenn304, 125 S.W.2d 142, 143.

Action for "abuse of process" is distinguished from action for "malicious abuse of process," in that action for abuse of process resyts upon improper use of of regularly issued process, while "malicious prosecution" has reference to wrong in issuance of process. Lobel v. Trade Bank of New York, 132 Misc. 643, 229 N.Y.S. 778, 781.

Fundamental elements of this tort are an ulterior purpose, and a willful act in the use of process not proper in the regular conduct of the proceeding. Barquis v. Merchants Collection Ass'n of Oakland, Inc., Cal., 7 C.3d 94, 101 Cal.Rptr. 745, 752, 496 P.2d 817.

See also Malicious abuse of legal process; Malicious use of process.

Service

Practice

The exhibition or delivery of a writ, summonsand complaint, criminal summons, notice, order, etc., by an authorized person, to a person who is thereby officially notified of some action or proceeding in which he is concerned, and is thereby advised or warned of some action or step which he is commanded to take or to forbear. FedR.CivilProc. 4 and 5; Fed.R.CrimP. 4 and 49.

Service of process The service of writs, complaints, summonses, etc., signifies the delivering to or leaving with the party to whom or with whom they ought to be delivered or left; and, when they are so delivered, they are then said to have been served.

In the pleading stage of litigation, is the delivery of the complaint to the defendant either to him personnalyor, in most juristidictions, by leaving it with a responsible person at his place of residence.

Usually a copy only is served and the original is shown.

The service must furnish reasonable notice to the defendant of proceedings to afford him opportunity to appear and be heard. Chemical Specialties Sales Corp. Industrial Div v. Basic Inc., D.C.Conn., 296 F.Supp. 1106, 1107. Fed.R.CivilP. 4; Fed.R.Crim.P. 4.

The various types of service of process are as follows:

Constructive service of process Any form of service other than actual personal service.

Notification of an action or of some proceeding therein, given to a person affected by sending it to him in the mails or causing it to be published in a newspaper. Fed.R.CivilP. 4(e).

Long arm statutes Laws enacted in most states which permit courts to acquire personal jurisdiction of nonresidents by virtue of activity within the state. See Foreign service,; Long arm statutes, Minimum contacts.

Personal service Actual delivery of process to person to whom it is directed or to someone authorized to receive it in his behalf. Green Mountain College v. Levine, 120 Vt. 332, 139 A.2d 822, 824.

Personal service is made by delivering a copy of the summons to the person named or by leaving copies thereof at his dwelling or usual place of abode with some responsible person or by delivering a copy to an agent authorized to receive such.

Special rules are also provided for service on infants, incompetents, corporations, the United States or officers or agencies thereof, etc. Fed.R.Civil P. 4(d) Fed.R.Crim.P. 4(d) See also Found.

Proof of service Evidence submitted by a process server that he has made service on a defendent in an action.

It is also called a return of service. Fed.R.Civil P. 4.

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Good stuff. Looks like I'll be studying some more tomorrow