Randy L. Geiszler
Robert W. Wangrud
Gerald A. Koellermeier, Sr.
All Rights Reserved
Copy Right September 1996
A man is worthy of his hire.
Luke 10:7: Matthew 10:10
Deceitful works shall be judged.
Proverbs 11:18; Ecclesiastes 12:14
Copying Strictly Forbidden.
"Thou Shalt Not Steal."
Exodus 20:15; 22:11; Leviticus 6:4; 19:11;
Deuteronomy 5:19; Psalms 50:18; Zechariah 5:4;
Romans 13:9; 1 Peter 4:15
Reprint permission Granted by Randy L. Geiszler Gregory Karl Davis 2007
Printed in the
RULES OF SPECIAL APPEARANCE
Due to all the confusion about venue and jurisdiction this writer feels it necessary to lay down some ground rules to avoid acquiescing to the venue of statutory process and the personal jurisdiction of statutory tribunals or agencies when making jurisdictional challenges.
"Acquiesce - To give an implied consent to a transaction, to the accrual of a right, or to any act, by one's mere silence, or without express assent or acknowledgement." Black's Law Dictionary, 5th Ed. (1979), p. 22, Title "Acquiesce."
"Acquiescence - Conduct recognizing the existence of a transaction, and intended, in some extent at least, to carry the transaction, or permit it to be carried, into effect. It is some act, not deliberately intended to ratify a former transaction known to be voidable, but recognizing the transaction as existing, and intended, in some extent at least, to carry it into effect, and to obtain or claim the benefits resulting from it, and thus differs from "confirmation," which implies a deliberate act, intended to renew and ratify a transaction known to be voidable. De Boe v. Prentice Packing & Storage Co., 172
It is to be distinguished from avowed consent, on the one hand, and from open discontent or opposition, on the other.
It arises where a person who knows that he is entitled to impeach a transaction or enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. Schmitt v. Wright, 317
Acquiescence and laches are cognate but not equivalent terms. The former is a submission to, or resting satisfied with, an existing state of things, while laches implies a neglect to do that which the party ought to do for his own benefit or protection. Hence laches may be evidence of acquiesence. Laches imports a merely passive assent, while acquiescence implies active assent. In re Wilbur's Estate, 334
"ACQUIESCENCE, contracts. The consent which is impliedly given by one or both parties, to a proposition, a clause, a condition, a judgment, or to any act whatever. * * * *
4. Acquiescence in acts of an agent, or one who has assumed that character, will be equivalent to an express authority. 2 Bouv. Inst. n. 1309; Kent, Com. 478; Story on Eq. S 255; 4 W.C.C.R. 559; 6
this definition it can easily be seen that you can give a legislative court or
agency authority over you in a particular matter by your mere silence at the
wrong time, even if that court or agency doesn't have lawful jurisdiction of
your person. In the same respect silence can admit the service of process not
legally served within its proper statutory venue.
The same is true as concerns your right to make constitutional objections. If you have knowledge of what constitutional limitations have been exceeded to deprive you of your unalienable rights and do not assert them at the proper time, that is before or at the time someone tries to violate them, you may not be able to materially assert the constitutional objections later as concerns the particular matter involved, if those objections were not asserted in a timely manner previously.
"Acquiescence, estoppel by - * * * * * Injury accruing from one's acquiescence in another's action to his prejudice creates 'estoppel'. Lebold v. Inland Steel Co., C.C.A. Ill, 125 F 2d 369, 375. Passive conduct on the part of one who has knowledge of the facts may be basis of estoppel. Winslow v. Burns, 47 N.M. 29, 132 P 2d 1048, 1050." Black's Law Dictionary, 5th Ed. (1979), p. 22, 23, Title "Acquiescence, estoppel by."
If an estoppel is created in this manner you may be ruled against by the agency or court regardless of what you do.
"ESTOPPEL - Estoppel means that party is prevented by his own acts from claiming a right to detriment of other party who was entitled to rely on such conduct and has acted accordingly. Graham v. Asbury, 112
Estoppel is a bar or impediment which precludes allegation or denial of a certain fact or state of facts, in consequence of a final adjudication of the matter in a court of law. It operates to put a party entitled to its benefits in same position as if the thing represented were true. May v. City of
Under these circumstances if someone lied to you and claimed ownership of something and you clearly allowed that person to exercise ownership to the deprivation of your claim to the property, when you knew it was a lie, then, if any legal action took place thereafter, the party that lied would be treated as the owner of the property and you would be estopped from expressing your claim to the property.
The same will hold true if you fail to assert a constitutional limitation in court. If you have knowledge that a particular violation of constitutional limitations exists and you fail to assert it to the trial court, it will be deemed waived for all intents and purposes and that waiver will be the law of your case; in other words, if your jurisdictional claim has been adjudicated, the doctrine of res judica applies. Should you later contest the judgment in a higher court, when you raise those objections in your defense, deemed waived below, they will be overlooked under the waiver. The only time you will be able to substantially assert a previously waived objection in the higher court, is if you can show that you didn't have knowledge of the objection or constitutional limitation at the time the trial court heard your case.
Now that you have an idea about the consequences of not asserting your objections at the proper time, we will take a look at the different types of jurisdiction (in personam, in rem, and of the subject matter) and when to raise arguments concerning them.
"JURISDICTION. The word is a term of large and comprehensive import, and embraces every kind of judicial action. Federal Land Bank of
Areas of authority; the geographic area in which a court has power or types of cases it has power to hear." Black's Law Dictionary, 5th Ed. (1979), p. 766, Title "Jurisdiction."
The last paragraph of this definition is somewhat of a misnomer and relates technically to venue and not jurisdiction (e.g. the geographical area in which the court has power or types of cases it has power to hear.).
The definition of jurisdiction appearing in Bouvier's Law Dictionary, 8th Ed. (1859) is much more comprehensive and informative.
JURISDICTION, practice. A power constitutionally conferred upon a judge or magistrate, to take cognizance of, and decide cases according to law, and to carry his sentence into execution. 6 Pet. 591; 9 John. 239. 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 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 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. 7 M. 192; 3 M'Cord, 280; 1 Call. 55; 1 J.J. Mash. 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
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
The above definition also confuses venue with jurisdiction where it speaks of the "territorial jurisdiction" of a judge. What Bouvier calls territorial jurisdiction should technically be defined as a part of venue.
The important points of the Bouvier's definition of jurisdiction above concern courts of limited or special jurisdiction.
having statutory jurisdiction, as opposed to general jurisdiction conferred by
constitution, are courts of limited or special jurisdiction and the facts which
prove their jurisdiction must appear on the face of the record of such
Also notice that the Bouvier's definition is only speaking of courts of judicial power where it is talking about "constitutionally conferred" powers.
Jurisdiction in personam means jurisdiction of the person when the court is hearing a case where the judgment rendered will be against the person as opposed to property.
"IN PERSONAM. Against the person. 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." Black's Law Dictionary, 5th Ed. (1979), p. 711, Title "In personam."
"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." 1 Bouvier's Law Dictionary 615, 8th Ed. (1859), title "In Persona".
In order for a court to render a judgment against a person the court must have obtained jurisdiction of the person by some means.
"IN PERSONAM JURISDICTION Power which a court has over
the defendant himself in contrast to the courts power over the defendant's interest in property (quasi in rem) or power over property itself (in rem). A court which lacks personal jurisdiction is without power to issue an in personam judgment. Pennoyer v. Neff, 95
"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
The courts generally feel that they acquire jurisdiction of the person by service of summons. This writer differs in opinion in that respect. If the court exercises a specialty subject matter jurisdiction and the party served does not fall into that jurisdiction by his own acts or omissions, then the summons cannot give the court personal jurisdiction of the party served. A good illustration of this is when a party is served with process by an administrative court of arbitration and the party served has never entered into any arbitration agreement that could subject his person to the arbitration court's jurisdiction. In such a case the court has jurisdiction of the subject matter but the party served has not done anything which the court could show on the face of its record to prove the court could exercise authority over the person served.
Whether or not the person is within the scope of the subject matter is a question of legal venue. Prior to the Civil War venue was defined as follows:
pleading, The venue is the county from which the jury are to come, who are to
try the issue. Gould, P1. c. 3, § 102; Archb. Civ. P1. 86.
2. As it is a general rule, that the place of every traversable fact stated in the pleading must be distinctly alleged, for that same certain place must be alleged for ever such fact, it follows that a venue must be stated in every declaration.
3. In local actions, in which the subject or thing to be recovered is local, the true venue must be laid; that is, the action must be brought in that county where the cause of action arose; among these are all real actions;, and actions which arise out of some local subject, or the violation of some local rights or interest; as the common law action of waste, trespass quare clausum fregit, trespass of nuisances to house or lands, disturbance of right of way, obstruction or diversion of ancient water-course, & c. Com. Dig. Action, N 4; Bac. Abr. Actions, Local, A a.
4. In a transitory action, the plaintiff may lay the venue in any county he pleases; that is, he may bring suit wherever he may find the defendant, and lay his cause of action to have arisen there, even though the cause of action arose in a foreign jurisdiction. Cowp. 161; Cro. Car. 444; 9 Johns. R. 67; Steph. Pl. 306; 1 Chitty, P1. 273; Archib. Civ. P1. 86; Vide, generally, Chit. P1. Idx. h. t.; Steph. P1. Index, h. t.; Tidd's Pr. Index, h. t.; Graham's Practice, Index h. t.; Com. Dig. Abatement, H 13;
Note, the above definition of venue states that the facts of venue must be specifically alleged. In most, if not all cases, the statutory process alleged that the venue of the offense was in the State abbreviation, (i.e."WA", "OR", "CA",and etc.), a designation that originates from federal statute or regulation, not a designation appearing in a State Constitution. The above definition of venue places Emphasis on the place where the acts are alleged. Place can mean more than geographical location. A distinction as to place comes into play when the place is defined by statute as opposed to Constitution and common-law. Therefore, two venues can simultaneously subsist within the same geographical location.
A full fledged Citizen can only be found within a venue
defined by Constitution and the common-law. If statutory process only has a statutory venue. Therefore, if statutory process is served upon a full fledged Citizen, I consider it served without its legal venue, regardless of the geographical area in which it is purported to have been served. Like questions of "personal jurisdiction," Blacks Law Dictionary, 5th Ed. (1979), p. 1396, Title, "Venue" states that "a defect in venue may be waived by the parties." For additional information about venue, order our video tape entitled "Venue," and it's "Evidence Book" by Robert W. Wangrud.
The next question is, when and how must a full fledged Citizen raise his argument that he is outside the venue of the process and that the court cannot exercise personal jurisdiction over him? (i.e. jurisdictional plea). Because venue may be waived and because venue is expressed in, and by the service of, the initial process, venue (like "personal jurisdiction") must be challenged in the first instance.
"JURISDICTIONAL PLEA. Form of answer addressed to the issue of whether the court has the power over the defendant or over the subject matter of the litigation; e.g. Fed.R.Civ.P. 12(b)(1), (2)." Black's Law Dictionary, 5th Ed., p. 766, Title "Jurisdictional Plea."
To keep such an argument (challenge to venue and personal jurisdiction) solvent in a higher court, as well as at the trial court level, this argument must be raised in the first instance and maintained throughout the proceedings. (See Rule 12 Federal Rules of Civil Procedure; Rule 21A Oregon Rules of Civil Procedure; and the following cases: Anger v. Cal., 46 Cal. Rptr. 579 ; Burns v. Municipal Court of L. A. Judicial District, Civ. 25684 ; and In re Public Utility Commissioner of Oregon v. Southern Pacific Co., 268 P2d. 605. The best cases to check will be those brought in the jurisdiction where your case is pending. The foregoing cites are examples to be correlated to cases in your State.) In the first instance means just what it says, before anything else is done. If you plead in any way to the merits of the case (matters that address innocence or guilt) you are asking the court to determine those matters and have already waived any argument against venue of the process and personal jurisdiction by acquiescing to the court's alleged authority to determine the matters in controversy and make a personal judgment.
"MERITS. In practice. Matter of substance in law, as distinguished from matter of mere form; a substantial ground of defense in law. A defendant is said 'to swear to merits' or 'to make affidavit of merits' when he makes affidavit that he has a good and sufficient or substantial defense to the action on the merits. 3 Chit. Gen. Pr. 513, 511. 'Merits,' in this application of it, has the technical sense of merits in law, and is not continued to a strictly moral and conscientious defense. Id. 545; 1 Burrill, Pr. 214; Rahn v. Gunnison, 12 Wis. 529;
Bolton v. Donavan, 9 N. D. 575, 84 N. W. 357; Ordway v. Boston & M.R. Co., 69 N. H. 429, 45 Atl. 243; Blakely v. Frazier, 11 S. C. 134; Rogers v. Rogers, 37 W. Va. 407, 16 S. E. 633; Oatman v. Bond, 15 Wis. 26.
As used in the New York Code of Procedure, S 349, it has been held to mean 'the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court.' St. Johns v. West, 4 How. Prac. (N.Y.) 332.
A 'defense upon the merits' is one which depends upon the inherent justice of the defendant's contention, as shown by the substantial facts of the case, as distinguished from one which rests upon technical objections or some collateral matter. Thus there may be a good defense growing out of an error in the plaintiff's pleadings, but there is not a defense upon the merits unless the real nature of the transaction in controversy shows the defendant to be in the right." Black's Law Dictionary, 2nd Ed (1910), p. 775, Title "Merits."
"MERITS. This word is used principally in matters of defence.
2. A defence upon the merits, is one that rests upon the justice of the cause, and not upon technical grounds only; there is, therefore, a difference between a good defence, which may be technical or not, and a defence on the merits. 5 B. & Ald. 703; 1 Ashm. R. 4; 5 John. R. 536; Id. 360; 3 John R. 245; Id. 449; 6 John R. 131; 4 John R. 486; 2 Cowen, R. 281; 7 Cowen, R. 514; 6 Wend. R. 511; 6 Cowen, R. 395." 2 Bouvier's Law Dictionary 157, 8th Ed. (1859), Title "Merits."
The merits cannot be addressed until such time as you have completely challenged the venue of the process and the personal jurisdiction of the tribunal and those questions have been addressed and determined.
This means you cannot even enter a plea of not guilty to the charges and must object if the court does so on its own motion. The entry of a not guilty plea is considered a denial of all material allegations of the complaint and goes straight to the merits of the case, placing the case into issue before the court. Consequently, a plea of not guilty waives any argument against the venue of the process or the personal jurisdiction of the tribunal. Therefore, if the court enters a plea of not guilty in our behalf, without our consent, we must deny the entry of plea by affidavit to avoid acquiescing in the tribunals jurisdiction. Most statutory tribunals are authorized to enter a plea not guilty on behalf of the defendant if the defendant fails to enter a plea. But this is only in a cause where the defendant is properly within the venue and personal jurisdiction of the tribunal. If we are challenging the venue of the process and the personal jurisdiction of the tribunal the tribunal has no power to enter a plea of not guilty in our behalf because the tribunal does not have our power of attorney to waive challenge of venue and jurisdiction to establish its own authority to proceed. Nonetheless, statutory tribunals are well known for entering a plea of not guilty in our behalf when they shouldn't in hopes establishing their authority by our acquiescence (failure to object) to the plea.
In addition, you cannot ask a legislative court for any remedy that it must have personal jurisdiction to give or that would establish you within the venue of the process.
"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." Black's Law Dictionary, 5th Ed (1979), p. 767, Title "Jurisdiction over person."
The only duty a legislative court has or should be required to exercise when it lacks venue and jurisdiction is to quash the process and dismiss the cause. The court need not have jurisdiction of the person to dismiss a cause.
" '* * * * * there is presented the situation of a conflict between the common law and the statute, in which case the latter must prevail. To hold in such case that after the expiration of the statutory limit the common-law remedy could still be availed of would be to hold in effect that in case of conflict between the two the common law prevails the statute. * * *'" HUFFMAN v. ALEXANDER, 197 Or 283, 340.
"What is here said is not in conflict with the well-settled doctrine that an inferior jurisdiction, proceeding not according to the course of the common law, must show affirmatively upon its record all the facts necessary to give jurisdiction: * * * * *" NORMAN v. ZEIBER, 3 Or 197, 201 (1870).
" '* * * * * nothing shall be intended to be within the jurisdiction of an inferior court unless it be so expressly alleged.' (1 Sand. 74.) And it is laid down in 1 Smith's Leading Cases, 816, in regard to courts of record: 'If the court is not in the exercise of its general jurisdiction, but of some special statutory jurisdiction, it is as to such proceedings an inferior court, and not aided by presumptions in favor of jurisdiction.' In regard to courts of inferior jurisdiction, 'if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed'; but it said this presumption may be rebutted and the jurisdictional facts established by extrinsic evidence. (Hurd on Habeas Corpus, 370.)" NORMAN v. ZEIBER, 3 Or 197, 202-03 (1870).
"When the record is silent, jurisdiction is presumed." HEATHERLY v. HADLEY & OWEN, 4 Or. 1; TUSTIN v. GAUNT, 4 Or 305.
"The decisions of a court of general jurisdiction, in exercising special and summary powers, wholly derived from statute and not exercised according to the course of the common law, must be regarded as those of a court of limited jurisdiction, and no presumption arises of jurisdiction having attached." FURGESON v. JONES, 17 Or 204, 20 P 842.
"Where want of jurisdiction appears, it is the duty of the court at any stage, on its own motion, to dismiss." EVANS v. CHRISTIAN, 4 Or. 375; STATE ex rel. v. McKINNON, 8 Or 487.
pleading lack of venue and want of personal jurisdiction any appearance you
make must be in the nature of what is called a "special appearance"
from the first instance. Your first appearance must be a "special
appearance", and you must appear this way continually until a determination
as to whether venue and personal jurisdiction exists is rendered, and even then
you must continue the objects you have made on "special appearance."
If you appear in court and don't assert to the court that you are appearing
specially to contest whether or not you are within the venue of the process and
whether the court has personal jurisdiction, then you will be making a general
submitting yourself to the jurisdiction of the court. The issue of venue would
be moot from this point on.
"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, 49 Atl. 1044; Crawford v. Vinton, 102 Mich. 83, 62 N.W. 988.
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), p. 89, Title "Appearance."
The limited purpose we appear for on "special appearance" is to contest whether personal jurisdiction exists. Again, as I stated previously this must be done in the first instance or the argument will be deemed waived for all intents and purposes. And if the merits are addressed at any time before a determination of venue and jurisdiction is made then this may also constitute a waiver and cause the court to rule against the party contesting venue of the process and jurisdiction of his person. When you make a special appearance you must remain within the special purpose of the appearance or the appearance will be considered a general appearance.
When making a special "appearance" for the aforementioned cause we must appear "In propria persona".
"PROPRIA PERSONA. In his own person. It is a rule in pleading that pleas to the jurisdiction of th 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 P1. 91.
An appearance may be in propria persona, and need not be by attorney." 2 Bouvier's Law Dictionary 395, 8th Ed. (1859), Title "Propria Persona.
"In propria persona. 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 persona, because if pleaded by attorney they admit the jurisdiction, as a attorney is an officer of the court, and he is presumed to plead after having obtained leave, which admits the jurisdiction. See Pro se" Black's Law Dictionary, 5th Ed. (1979), p. 712, Title "In propria persona."
To appear pro se also creates the same dilemma concerning leave of the court.
"Pro se. For himself; in his 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." Black's Law Dictionary, 5th Ed. (1979), p. 1099, Title "Pro se."
Notice the difference in the definition of pro se and in propria persona. First the definition of pro se makes no reference to "special appearances" or "pleas to the jurisdiction" whatsoever; second, if you appear pro se you appear "for yourself" not "as yourself." When you appear in propria persona you appear "in your own proper person," and you are not assuming a second character as counsel for yourself. The definition of pro se indicates that you assume two characters, one as the litigant,
and two as counsel for the litigant, even though you are the only body appearing. As counsel for yourself, you are again deemed to have leave of the court to proceed. We have found that statutory tribunals continually try to confound the matter by referring to
a party who is appearing in propria persona as a pro se litigant. We cannot acquiesce in this mislabeling and it must be denied by affidavit whenever it happens. Labeling you a pro se litigant when you are making a special appearance is merely an attempt by the tribunal to evade the issue by establishing a record that you obtained leave of the court. If you do not object to being labeled pro se then you will be deemed to have admitted that status by acquiesence.
Clearly, the reason we must appear in propria persona is because no leave of the court is necessary to appear in such a manner. If we were to appear pro se or by an attorney we would waive our arguments against venue and personal jurisdiction because to appear pro se or by attorney we must obtain 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), p. 801, Title "Leave of court."
If the court grants such leave it has given a remedy that it must have jurisdiction in persona to give. Even if the court doesn't expressly give leave on the record will be deemed given when the question arises in a higher court.
All of these things must be kept in mind when we are attacking the court's inability to acquire jurisdiction in personam. If you watch a court in action you will see just how the court proceeds to insure that venue and jurisdiction in personam cannot be questioned. This is done by acquiring some form of waiver or acquiescence from the accused party which acts as an estoppel against any argument against the venue of the process or the personal jurisdiction of the tribunal.
Most of the things that a court does to assure that personal jurisdiction will not be in contest later are done at arraignment. At arraignment, the court asks if the defendant wants a court appointed attorney or if he will use his own attorney (both require leave of the court), and asks the defendant to enter a plea to the charges. The court may grant a set over for the purpose of acquiring an attorney or for entry of a plea. Any one of these being followed by the defendant can destroy arguments against venue and personal jurisdiction in the future.
Even if we are appearing on "special appearance" we must have been forced into the court by some form of process, some form of duress or compulsion, and this process must also be contested in the first instance in order to properly contest the venue to which the process relates. If we make an appearance without such compulsion, or without having contested the process, we will be making what is known as a voluntary appearance, and if we make a voluntary appearance we acquiesce jurisdiction of our person to the court and waive the issue of venue.
As an example, one way we could acquiesce jurisdiction to a court is by filing a complaint in the court to initiate an action. In such an instance we appear voluntarily in the court without compulsion and consent to the court taking action. If the party defendant files a counter claim he is subject to any orders the court might make against him on the counter claim, because a counter claim is in the nature of a complaint.
Black's Law Dictionary goes further in defining "in personam jurisdiction" and compares it to "jurisdiction in rem":
"IN PERSONAM, IN REM. In the Roman law, from which they are taken, the expressions "in rem' and "in personam" were always opposed to one another, an act or proceeding in personam being one done or directed against or with reference to a specific person, while an act or proceeding in rem was one done or directed with reference to no specific person, and consequently against or with reference to all whom it might concern, or "all the world". The phrases were especially applied to actions; an action in personam being the remedy where a claim against a specific person arose out of an obligation, whether ex contractu or ex maleficio, while an action in rem was one brought for the assertion of a right of property, easement, status, etc., against one who denied or infringed it. See Inst. 4, 6, 1; Gaius, 4, 1, 1-10; 5 Say. Syst. 13, et seq.; Dig. 2, 4, 7, 8; Id. 4, 2, 9, 1.
From this use of the terms, they have come to be applied to signify the antithesis of "available against a particular person," and "available against the world at large." Thus, jura in personam are rights primarily available against specific persons; jura in rem, rights only available against the world at large.
So a judgment or decree is said to be in rem when it binds third persons. Such is the sentence of a court of admiralty on a question of prize, or a decree of nullity or dissolution of marriage, or a decree of a court in a foreign country as to the status of a person domiciled there.
Lastly, the terms are sometimes used to signify that a judicial proceeding operates on a thing or a person. Thus, it is said of the court of chancery that it acts in personam, and not in rem, meaning that its decrees operate by compelling defendants to do what they are ordered to do, and not by producing the effect directly. Sweet. See Cross v. Armstrong, 44 Ohio St.
613, 10 N. E. 160; Cunningham v. Shanklin, 660 Cal. 125; Hill v. Henry, 66 N.J. Eq. 150, 57 Atl. 555." Black's Law Dictionary, 2nd Ed. (1910), p. 606, Title "In personam, In Rem."
From this definition it can be seen that in personam jurisdiction is required to give remedy, for an obligation of a person that has not been fulfilled, whether that obligation arose out of a stipulation under statute or failure to act in a manner that would avoid causing hardship or damage to another.
The next thing we will look at is proceedings or jurisdiction "in rem":
"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.
An "action in rem" is a proceeding that takes no cognizance of owner but determines right in specific property against all of the world, equally binding on everyone. Flesch v. Circle City Excavating & Rental Corp., 137 Ind.App. 695, 210 N.E.2d 865, 868. 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 partition real estate, foreclose a mortgage, or enforce a lien. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.
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 City Excavating & Rental Corp., 137 Ind.App. 695, 210 N.E.2d 865." Black's Law Dictionary, 5th Ed. (1979), p. 713, Title "In rem."
Sometimes proceedings are quasi in rem; in these instances, it is necessary for the court to have jurisdiction of the property and the person to render judgment.
When appearing to challenge the venue of the process and the jurisdiction of the court, that is jurisdiction of our person, we 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. § 2." Black's Law Dictionary, 2nd Ed. (1910), p. 1121, Title "Sui Juris."
By definition this implies that we appear specially as a matter of our own right without consent or leave from the court or anyone else, that we are not under disability of any legislative act, State or Federal, such as Social Security, Driver's License, etc., that would void sui juris status, so that we can properly raise the necessary issues at a later time. By appearing "sui juris" we will be able to show, as a matter of record, that we did not request nor obtain leave of the court to appear specially to challenge the court when trying to obtain personal jurisdiction.
To maintain our position on venue and jurisdiction we must be consistent. Any waiver can cause an estoppel and our position is lost being made void by our own waiver. This must be avoided to properly challenge venue and personal jurisdiction.
Generally the trial court is a statutory court (tribunal) of limited jurisdiction, and said tribunal summarily determines to have jurisdiction without the Plaintiff proving jurisdiction on the face of the record. In such a case any final judgment the court might make should be treated as "coram non judice":
"CORAM NON JUDICE. In presence of a person not a judge. When a suit is brought and determined in a court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void." Black's Law Dictionary, 5th Ed. (1979), p. 305, Title "Coram non judice."
On law of prohibition, which involves jurisdiction, the Oregon courts said the following:
". . . .However, if want of jurisdiction is disclosed on the face of the petition, that is, when it clearly appears that the inferior court has no jurisdiction of the subject matter, or of the parties, then the writ may be awarded notwithstanding respondent may have jurisdiction in proper cases. This is so for the obvious reason that if such a proceeding should be permitted to go to judgment it would be coram non judice. . . ." In re PUBLIC UTILITIES COMMISSIONER OF OREGON, 268 P2d 605.
The following citations of authority will give you some insight into special appearance. They tell you many of the acts or omissions which will constitute a general appearance, as well as telling you what things can be done by special appearance without giving personal jurisdiction to the court.
"An appearance of a party in a cause, save for the purpose of taking advantage of a want of jurisdiction, is a general appearance." Foot v. Richmond, 42 Cal 443; Aultman v. Steinau, 8 Nev 112; Bank of Valley v. Bank of Berkley, 3 W Va 386; Coad v. Coad, 41 Wis 26.
"Within the meaning of a general appearance comes any motion which calls into action the powers of the court for any purpose except to decide upon its own jurisdiction: Wood v. Young, 38 Iowa 106; Cropsey v. Wiggenhorn, 3 Neb 116; that is to say, any motion which asks for relief which can only be granted on the hypothesis that the court has jurisdiction of the cause and of the person: Coad v. Coad, 41 Wis 26.
"Coming in to move for a continuance has been held a general appearance: Sargent v. Flaid, 90
"A party, by taking an appeal, submits himself to the jurisdiction and waives error in return or service of process, and likewise with one prosecuting a writ of error: Culton v. Commonwealth, 9 Busch 703; Sevrer v. Horst, 31 Minn 479; Mobile & O.R.R. Co. v. Dale, 61 Miss 206; Berkeley v. Morrison, 13 Id 590; Sowlins v. Sackey, 6 Mon 70.
"A special appearance is an appearance solely for the purpose of testing the jurisdiction: Bailey v. Schrada, 34
"Where a party appears specially to object to the jurisdiction, he should confine his motion to that question alone; he may test the question of jurisdiction, but thereafter must either go to trial or quit the field altogether; he cannot occupy an ambiguous attitude: Tower v. Moore, 52 Mo 120; Porter v. Chicago etc. R'y Co., 1
"If a person specially appears, his withdrawal without pleading to the merits does not leave him subject to the jurisdiction of the court, but leaves the matter as though there had been no appearance: Graham v. Spencer, 14 F 603.
"An appearance solely for the purpose of moving to quash a writ of summons or the service thereof is a special appearance, and will not waive service of process, or defects in the writ, or service or return thereof: Lyman v. Milton, 44 Cal 635; Sandar v. Fleming, 47 Id 615; Kent v. West, 50 Id 185; Southern Pacific R'y Co. v. Kern Co., 59 Id 471. A motion to dismiss for want of issuance of summons within the proper time a special appearance: Linden G.M. Co. v. Sheplar, 53 Id 245; for want of service of summons within proper time: Nye v. Liscomber, 26 Pick 266; for objection to manner of service of process; Crary v. Barbur, 1
"A petition for removal to federal court is not a general appearance: Small v.