Separate names with a comma.
Discussion in 'Credit Talk' started by Marie, Apr 21, 2001.
judgments... interesting term, isn't it. we certainly feel as though one is if we have one on us.
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Trinsey v Pagliaro
Trinsey v Pagliaro
John S. Trinsey, Jr.,
Frank J. Pagliaro and Albert Foreman, Esq.
Civ. A. No. 34873
United States District Court
May 28, 1964
The case arises out of a dispute over the extent of the plaintiff's ownership interest in a tract of land known as "Rebel Hill"
All of that is not even interesting, it being a rather mucdane case. What is interesting is the 3rd portion of District Judge Wood's 3rd ruling in the case which follows verbatim:
(3). Federal Civil Procedure
Statements of counsel in their briefs or arguments are not sufficient for purposes of granting a motion to dismiss or for summary judgement.
Fed. Rules Civ. Proc. rules 12(b) (6), 56(D), 28 U.S.C.A.
In his further Judicial comments in the case, Judge Wood stated (Notice the difference in the types of parenthesis used in the sumarical version above and the longer commentaryial version below, both of which appear in the acutal court record.
 The defendants' motion to dismiss for failure to state a claim unsupported by affidavits or depositions is incomplete because it requests this Court to consider facts outside the record which have not been presented in th form required by Rules 12(b) (6) and 56(c).
Statements of counsel in their briefs or argument while enlightening to the Court are not sufficient for purposes of granting a motion to dismiss or summary judgement.
Notice the misspelling of the word "the", the court clerk or whoever typed it up made a typo and it's in the record that way forever.
And so, you can plainly see that Judge Wood relies heavily upon the Federal Civil Rules of Procedure as the basis for his ruling. He didn't just pull it out of a hat. Federal Judges almost never do unless it is in relation to some totally new area of legal ground, something not often encountered. It was stated in an earlier post that Federal Judges rule their Courts with an almost Iron Hand and have total power over their courtrooms. This may seem to be true, but in fact Federal Judges do not have pleniary power in their court rooms for they are courts of inferior jurisdiction. Only the Constitution and the United States Supreme Court has pleniary power, unless such power is granted to state supreme courts by the U.S. Supremes. We saw an example of that during the election fiasco in Florida when the U.S. Supreme refused to grant certori in the matter before the court stating that the Florida Supreme Court had pleniary power over the election process in the State of Florida, their power to rule in that matter being total and uncontestable (pleniary). Even State Supreme Courts do not have pleniary power except in certain matters applicable only in that state. Otherwise, State Supreme Court rulings can be appealed to the United States Supreme Court which may or may not grant pleniary power by allowing or denying certerori
But back to the original matter of discussion. In net effect, Judge Wood said that the lawyers could file all the papers and make all the arguments they wanted, and while they may very well be enlightening to the Court, absent affidavits or depositons, it was all totally meaningless to the court.
So let's put this in a bit of perspective.
Lawyer Dagget goes up before Judge Hocum and states that Harry Rookum owes Banker Shaftum a hundred dollars. Lawyer Dagget has a copy of the note signed by Harry Rookum showing that he owes Banker Shaftum a hundred dollars and Lawyer Dagget shows Judge Hocum that copy of the note signed by Rookum. Judge Hocum knows Lawyer Dagget and has probably heard a lot about Banker Shaftum. Harry Rookum does not appear to make defense.
Should Judge Hocum just sign the judgement? Nope! Why? No affidavit, no deposition, no actual or certified copy of note signed by Harry Rookum. But he does it anyway and moves on to the next case. Lawyer Dagget goes over to the clerk of the Court and files his judgement and then ambles on over to the County Recorder's office to file the judgement there.
All are happy with the outcome until Harry Rookum finally figures out that he has indeed been sc*ewed by the whole process, denied his civil rights to due process of law and uses lack of original note he signed or absent certified copy of original, the judge had erred. He also erred because he did not get a depositon or sworn affidavit from Shaftum and Shaftum did not appear in court to testify in person.
Case is void upon it's face.
Rookum now goes back to court, files motion for summary judgement and wins.
Well, it's not quite that simple, but close enough for the purposes of this discussion.