Need help quick with simple common law question...

[teneagles]

Simple Common Law Question

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I am currently involved in a case where an affidavit of truth was served, with "estoppel by acquiescence" claimed after non-rebuttal was achieved through the 20 day rebuttal period.

The estopped party's attorney has now filed a claim in district court to have the estoppel declared void, under the argument that he can find no law that states that the affiant can force a rebuttal period in a common law affidavit.

Having searched for 24 hours everywhere, I also cannot find any common law reference that allows a rebuttal period to an affidavit to be dictated by the affiant, even though I know there should be one, or an affidavit would be meaningless, and the well documented common law defense of "estoppel by acquiescence" would be impossible.

Can anyone steer me to any cites that would either:
1. Show that the affiant has the right to set a rebuttal period on an affidavit -OR-
2. Show where the commonly accepted common law period for rebuttal may be published in law...

Thanks

TE

[David Merrill]

Originally Posted by teneagles

Simple Common Law Question

--------------------------------------------------------------------------------

I am currently involved in a case where an affidavit of truth was served, with "estoppel by acquiescence" claimed after non-rebuttal was achieved through the 20 day rebuttal period.

The estopped party's attorney has now filed a claim in district court to have the estoppel declared void, under the argument that he can find no law that states that the affiant can force a rebuttal period in a common law affidavit.

Having searched for 24 hours everywhere, I also cannot find any common law reference that allows a rebuttal period to an affidavit to be dictated by the affiant, even though I know there should be one, or an affidavit would be meaningless, and the well documented common law defense of "estoppel by acquiescence" would be impossible.

Can anyone steer me to any cites that would either:
1. Show that the affiant has the right to set a rebuttal period on an affidavit -OR-
2. Show where the commonly accepted common law period for rebuttal may be published in law...

Thanks

TE

From the details given it sounds as though the estoppel is valid because the attorney is trying to have it declared void. Is your court entertaining the district court?

[ndusa]

Originally Posted by teneagles

Simple Common Law Question

--------------------------------------------------------------------------------

I am currently involved in a case where an affidavit of truth was served, with "estoppel by acquiescence" claimed after non-rebuttal was achieved through the 20 day rebuttal period.

The estopped party's attorney has now filed a claim in district court to have the estoppel declared void, under the argument that he can find no law that states that the affiant can force a rebuttal period in a common law affidavit.

Having searched for 24 hours everywhere, I also cannot find any common law reference that allows a rebuttal period to an affidavit to be dictated by the affiant, even though I know there should be one, or an affidavit would be meaningless, and the well documented common law defense of "estoppel by acquiescence" would be impossible.

Can anyone steer me to any cites that would either:
1. Show that the affiant has the right to set a rebuttal period on an affidavit -OR-
2. Show where the commonly accepted common law period for rebuttal may be published in law...

Thanks

TE

Common Law Court:

These courts have been declared non-existent.

1. Kimmel v. Burnet County Appraisal Dist., 835 S.W.2d 108, 109 (Tex.App. 1992).
2. United States v. Greenstreet, 912 F.Supp. 224 (N.D.Tex. 1996)
(raised flag and common law court issues)

[teneagles]

Originally Posted by David Merrill

From the details given it sounds as though the estoppel is valid because the attorney is trying to have it declared void. Is your court entertaining the district court?

The Attorney filed his complaint in District Court, that is correct...

[teneagles]

Originally Posted by ndusa

Common Law Court:

These courts have been declared non-existent.

1. Kimmel v. Burnet County Appraisal Dist., 835 S.W.2d 108, 109 (Tex.App. 1992).
2. United States v. Greenstreet, 912 F.Supp. 224 (N.D.Tex. 1996)
(raised flag and common law court issues)

This may be true, or not, as The Texas Appelate Court does not trump the guarantees of the Constitution of the united States of America, nor the Laws of Commerce which is Common Law, and is applicable in Courts of both Equity and Law throughout the nation and the world.

[ndusa]

Originally Posted by teneagles

This may be true, or not, as The Texas Appelate Court does not trump the guarantees of the Constitution of the united States of America, nor the Laws of Commerce which is Common Law, and is applicable in Courts of both Equity and Law throughout the nation and the world.

The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law; today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.

Judicial precedents derive their force from the doctrine of stare decisis [Lat.,=stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. Changing conditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English-speaking world. This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability. Nevertheless, in many instances, the courts have failed to keep pace with social developments and it has become necessary to enact statutes to bring about needed changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law. Typically, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy.

[palani]

Tacita quaedam habentur pro expressis. Things silent are sometimes considered as expressed. 8 Co. 40

Qui tacet consentire videtur. He who is silent appears to consent. Jenk. Cent. 32.

Expressum facit cessare tacitum. What is expressed renders what is implied silent.

Aliud est celare, aliud tacere. To conceal is one thing, to be silent another.

Currit tempus contra desides et sui juris contemptores. Time runs against the slothful and those who neglect their rights.

[David Merrill]

Originally Posted by teneagles

The Attorney filed his complaint in District Court, that is correct...

There are State district courts and United States district courts. In either case your cause seems to have been adjudicated in the common law and so it is res judicata. Unless you entertain the cause in the district court, it cannot be heard there. Ergo I asked:

Is your court entertaining the district court?

Were you served a summons? How did you respond to the summons?


Regards,

David Merrill.

[David Merrill]

Originally Posted by ndusa

The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law; today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.

Judicial precedents derive their force from the doctrine of stare decisis [Lat.,=stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. Changing conditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English-speaking world. This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability. Nevertheless, in many instances, the courts have failed to keep pace with social developments and it has become necessary to enact statutes to bring about needed changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law. Typically, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy.

Quite accurate and lucid ndusa. However one must take that truth in light of Erie Doctrine - the fact that most recognized case law decisions are post-1938 and thus post 1933 bankruptcy proceedings. More accurately that Justice Brandeis declared all case law between Swift v. Tyson (1842) and Erie Railroad Co. v. Thompkins (1938) faulty.

"...the United States, ... within their respective districts, as well as upon the high seas; (a) saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all seizures on land,..." The First Judiciary Act; September 24, 1789; Chapter 20, page 77. The Constitution of the United States of America, Revised and Annotated - Analysis and Interpretation - 1982; Article III, §2, Cl. 1 Diversity of Citizenship, U.S. Government Printing Office document 99-16, p. 741.

Regards,

David Merrill.

at the beginning of state codes, reference is made to the common law still being in effect , and your federal constitution is intrepreted as common law. to clear up any confusion, i contract them into estoppel in the affidavit.