negative averment

seeker · #1 05-24-2004, 07:10 PM

<SPAN style="FONT-SIZE: 12pt; BACKGROUND: yellow; FONT-FAMILY: 'Times New Roman'; mso-bidi-font-size: 10.0pt; mso-highlight: yellow; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">
Title III, "Pleadings and Motions," Rule 9(a) "Capacity," Federal Rules of Civil Procedure, states, in pertinent part:<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /><o

></o

>
<SPAN style="FONT-SIZE: 12pt; FONT-FAMILY: 'Times New Roman'; mso-bidi-font-size: 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">"When an issue is raised as to the legal existence of a named party, or the party's capacity to be sued, or the authority of a party to be sued, the party desiring to raise the issue shall do so by specific negative averment, which shall include supporting particulars."
<SPAN style="FONT-SIZE: 12pt; FONT-FAMILY: 'Times New Roman'; mso-bidi-font-size: 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">Interesting?

#2 05-24-2004, 10:00 PM

I just read that last night!& Definitely needs further research, but it sure sounds promising, right?

Randy

Ice · #3 05-25-2004, 04:32 AM

This really boils down to "jurisdiction"... and negative averment is used because "jurisdiction" must be proven.

&

seeker · #4 05-25-2004, 11:51 PM

Re: jurisdiction-- has any one used or heard of a filing a Speacial Appearance before entering court?& It challenges jurisdiction.& I think the article cited Bill Drexler?

Seeker

Ice · #5 05-26-2004, 12:02 AM

Why not just show up and challenge jurisdiction from the get go?& The courts do belong to us and we need to take them back.& How will we accomplish that if we keep avoiding them?

&

seeker · #6 05-26-2004, 11:20 AM

Ice, in your opinion, what would be the best tact to use?& Would it be appropriate in any court? How do you get it entered into the record?

I realize that most courts do not have recorders anymore, unless it is a criminal matter.& Does this mean we have to resort to bringing our own each time?&

Thanks.

Seeker

Ice · #7 05-26-2004, 04:06 PM

Each case is different, so the court will lack jurisdiction for one reason or another, depending on the case.& First, does the court have subject matter or personal jurisdiction?& If you do not believe they do, then make the challenge.& You must force them to PROVE jurisdiction.& If the judge does not give a valid reason as to why he has jurisdiction... make him give you one... have him "certify the question".

And always remember this one very important aspect of court:& If you don't raise an objection then you don't have one.& For most of the stuff we discuss here our opponents are offering NO EVIDENCE into the record.

I would suggest that we might better ourselves by attending court to see these procedures in action (and get used to being in a court room) and purchasing materials that will shed more light upon court room tactics.& See your local college bookstore or search the Internet for such material that may be useful.

And Jim would probably add: "Visit your local law library" and research your favorite topic.

&

rushpat · #8 05-26-2004, 07:36 PM

Also, I think it was Cornforth (maybe someone else) that said that many times, a judge will try to trick you into thinking venue=jurisdiction, which is does not necessarily.