DIRECT VS.

COLLATERAL ATTACK ON A JUDGMENT CASE LAW FROM HOUSTON COLLATERAL ATTACK

When a separate and new lawsuit is filed to challenge some aspect of an earlier and separate case, it is called a collateral attack on the earlier case. This is different than an appeal, which is a challenge to some aspect of a decision made in the same case. Example: Sam obtains a divorce in Nevada without properly notifying his wife, Laurie. Laurie files a later lawsuit seeking to set aside the divorce and start the divorce proceedings over. Laurie's case is a collateral attack on the divorce. The law wants judgments to be final whenever possible, and thus collateral attacks are discouraged. Many are filed, but usually only succeed when an obvious injustice or unconstitutional treatment occurred in the earlier case. n. a legal action to challenge a ruling in another case. For example, Joe Parenti has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A "direct attack" would have been to raise the issue of paternity in the divorce action n. a legal action to challenge a ruling in another case. For example, Joe Parenti has been ordered to pay child support in a divorce case, but he then files another lawsuit trying to prove a claim that he is not the father of the child. A "direct attack" would have been to raise the issue of parenthood in the divorce action.

Example: an Ohio court determines that John is the father of Betty's child. John cannot raise the issue again in another state. Sometimes called res adjudicata.
DAMNUM ABSQUE INJURIA A loss or damage without injury. There are cases when the act of one man may cause a damage or loss to another, but for which the latter has no remedy. He is then said to have received damnum absque injuria. For example, if a man should set up a school in the neighborhood of another school, and by that means, deprive the former of its patronage; or if a man should build a mill along side of another, and consequently reduce its business. Another instance may be given of the case where a man excavating for a foundation with proper care and diligence, injures the adjoining house due to the unsuitable materials used in such house; here the injury is damnum absque injuria. When a man slanders another by publishing the truth, the person slandered is said to have sustained loss without injury. Damnum absque injuria literally means damage without wrongful act. It means that a loss or harm incurred from something other than a wrongful act does not warrant a legal remedy. For example, a person may harm another in due exercise of his right. However, the injured person cannot sue the person who exercised his rights. 2. There are cases when the act of one man may cause a damage or loss to another, and for which the latter has no remedy; he is then said to have received damnum absque injuria; as, for example, if a man should set up a school in the neighborhood of another school, and, by that means, deprive the former of its patronage; or if a man should build a mill along side of another, and consequently reduce his custom 3. Another instance may be given of the case where a man using proper care and diligence, while excavating for a foundation, injures the adjoining

RES JUDICATA: (rayz judy-cot-ah) n. Latin for "the thing has been judged," meaning the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless.

house, owing to the unsuitable materials used in such house; here the injury is damnum absque injuria. 4. When a man slanders another by publishing the truth, the person slandered is said to have sustained loss without injury. Ab initio is a Latin term meaning "from the beginning". For example, if something is said to be void ab initio, the thing was never created or valid to begin with. The term is often used in connection with contracts, estates, and marriages. Abatement generally refers to a lessening or reduction of something. It may refer to the removal of a problem which is contrary to public or private policy, or endangers others. For example, a municipality may serve a notice for abatement of nuisance on a landowner for weeds that might catch fire on an otherwise empty lot. Abatement may mean an equal reduction of recovery of debts by all creditors when there are insufficient funds or assets to satisfy the full amount. An abatement of a legacy is an equal reduction of benefits to beneficiaries (heirs) when an estate is not large enough to pay each beneficiary in full. An abatement of taxes is a rebate or reduction of taxes previously assessed and/or paid. In an eviction case where a landlord is seeking unpaid rent, a tenant may raise the defense that he/she is entitled to rent abatement due to uninhabitable living conditions.

descent and distribution are in accord with the intestate's intention, for HN2the statutory intestate disposition may be defeated by the will of the owner of the property, if he possesses testamentary capacity; intestacy signifies the adoption of the legislative disposition, a conclusive presumption, although necessarily fictional in some cases: e.g., the making of a will that cannot be probated for defect of execution as laid down in the statute; or the invalidity or unenforceability of provisions intended to dispose of the property.

ACT OF CONGRESS refers to statutes or legislation that are formally

enacted by Congress through the legislative powers granted to Congress by the Constitution. To become an Act of Congress, first a bill or a resolution has to be passed by a majority of members of both the House of Representatives and the Senate. The bill or resolution is sent to the chamber through a committee. The bill is sent back to the same committee after the bill is passed by both the chambers. The committee then sent the bill or resolution to get the president's assent. The bill or resolution becomes an Act of Congress: 1. if the President signs the bills; or 2. if the President fails to return the bill or resolution with in ten days.

AD LITEM is a Latin phrase meaning for the suit or for the purpose of
legal action. Usually it refers to a party appointed by a Court to act on behalf of another party who is incapable of representing himself or herself. For example, a guardian "ad litem" is a person appointed by the court to protect the interests of a minor or legally incompetent person in a lawsuit. The court may appoint either a lawyer or a court appointed special advocate volunteer to serve as guardian ad litem in juvenile matters, family court matters, probate matters, and domestic relations matters. In property litigation, it can refer to a person who is appointed by the court to act on behalf of the estate in the proceedings before court when the estate's proper representatives are unable or unwilling to act.

AB INTESTATO is a Latin term which means "by intestacy." It refers to

laws governing the succession of property after its previous owner dies without a valid will. The term intestate when used in regard to a person, it means not having made a legally valid will prior to death; when used in regard to property, it means not effectively disposed of by a legally valid will. An example of a New Jersey Supreme court case using the term Ab Intestato follows: Regulating succession or inheritance ab intestato is a legislative province. The Legislature has plenary power over the devolution of the title and the distribution of the intestate's property; and yet, presumably, the rules of

IPSO FACTO - By that very fact.

Inter alia - Amongst other things. Injuria non excusat injuriam - A wrong does not excuse a wrong. In personam - Against the person. in pari delicto adv. (in pah-ree dee-lick-toe) Latin for "in equal fault," which means that two (or more) people are all at fault or are all guilty of a crime. In contract law, if the fault is more or less equal then neither party can claim breach of the contract by the other; in an accident, neither can collect damages, unless the fault is more on one than the other under the rule of "comparative negligence"; in defense of a criminal charge, one defendant will have a difficult time blaming the other for inducing him or her into the criminal acts if the proof is that both were involved. Legal principle that if two parties in a dispute are equally at fault then the party in possession of the contested property gets to retain it (courts will not interfere with the status quo). It implies that if a party whose action (or a failure to act) precipitates breach of a contract, or which fails to take appropriate action (or takes inappropriate action) to limit or recoup a loss, may not claim damages Conceptually, the in pari delicto defense will apply "where the fault of the parties is mutual, simultaneous and relatively equal, and where the plaintiff is an active, essential, and knowing participant in the unlawful activity. in pari delicto potior est conditio possidentis When the parties are equally in the wrong the condition of the possessor is better. A vinculo matrimonii - From the bounds of matrimony Ad acta - To archives. Not actual any more Amicus verus est rara avis - A true friend is a rare bird

Amor caecus est - Love is blind Amor est vitae essentia - Love is the essence of life. Res judicata - Literally, it means a matter adjudged, a thing judicially acted upon or decided; a thing or matter settled by judgment. In res judicata, the judgment in the first action is considered conclusive as to every matter offered and received therein, as to any other admissible matter which might have been offered for that purpose, and all other matters that could have been adjudged therein. Res judicata is an absolute bar to a subsequent action for the same cause; and its requisites are: (a) the former judgment or order must be final; (b) the judgment or order must be one on the merits; (c) it must have been rendered by a court having jurisdiction over the subject matter and parties; (d) there must be between the first and second actions, identity of parties, of subject matter and of causes of action.[1] Delegatus Non Potest Delegare is a Latin maxim which means that a delegated authority cannot further delegate. This is one of the fundamental principles of administrative law. When a higher authority delegates an authority or decision-making power to a person or institution, that person or institution cannot delegate such authority to another unless there is explicit authorization for it in the original delegation. An oftenrepeated proposition of AngloAmerican law is that delegated authority cannot be redelegated. In the case of the Supreme Court, the doctrine of nondelegation purportedly derives from the Constitution, although admittedly without any basis in the constitutional text. The usual argument for the invalidity of delegation of powers turns on the concept of separation of powers, that is, the forbidding of certain general powers to one or another of the general branches of government. Actually, there are few specific constitutional provisions for the separation of powers. There are provisions for checks and balances among the three branches of government,

however. Separation of powers would create monopolies of certain powers in particular branches; checks and balances forbids such monopolies and, in fact, generally requires the joinder of two branches before governmental action is validated. Thus, the legislature cannot enact a law without presidential approval or, if the president disapproves, a twothirds overriding vote of each house; the judicial branch cannot pass judgment except within legislatively defined limits specified by statute; no one may expend moneys except those appropriated by the legislature and according to the terms specified by the legislature. Delegation of Powers refers to the practice of empowering one part of government to act in the name of another. The extent to which any branch of government may delegate power, however, remains in question. For example, the courts have often said that Congress as a recipient of delegated power from the people through the Constitution may not further delegate its legislative powers to other agencies of government. At the same time they have admitted that Congress can adopt only a general policy, which must be implemented by others in unanticipated circumstances and contexts. The U.S. Supreme Court stated in 1940 that "delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility," and the Court has voided only three delegations of power by Congress: Panama Refining Company v. Ryan (1935), Schechter Poultry Company v. United States (1935), Carter v. Carter Coal Company (1936). Three types of delegation can be identified. The first leaves to a person or agency the task of filling in the details and elaborating on the implementation of general policy. This, the most common type of delegation, is exemplified in the Interstate Commerce Commission being directed to ensure that railroad rates are "reasonable." A second type is contingency delegation. In this type, legislation is passed that will go into effect or be suspended when the executive branch determines that a specified situation exists. Tariff laws, for example, usually give the president power to change duties if other countries make specified changes in their duties. The third type of delegation of

power occurs in the field of foreign affairs, where courts have approved broader delegations of power to the president than in domestic affairs because of the unique role he plays in this area. Limits do exist on the ability of Congress to delegate legislative power to administrative agencies. Congress must define the subject to be regulated and must provide some standard to guide its agent's actions, even if that standard is no more exact than "just and reasonable." The delegation must be to public officials, not to private groups or individuals. Penal sanctions for violation of administrative orders can be provided only by Congress. Strict judicial adherence to the nondelegation doctrine would have made virtually impossible congressional exercise of the powers conferred on the legislative branch by the Constitution. Judicial recognition of this fact contributed to the great growth of administrative agencies and independent regulatory commissions in the twentieth century Definition of 'Ultra Vires Acts' Any act that lies beyond the authority of a corporation to perform. Ultra Vires acts fall outside the powers that are specifically listed in a corporate charter or state law. They can also be any action that is specifically prohibited by the corporate charter. Ultra Vires acts can also be defined as any excessive use of corporate power that has been granted. These acts cannot be legally defended in court. They will, in fact, leave the corporation vulnerable to lawsuits by employees or other parties. Ultra vires is a Latin term meaning "beyond powers". The term is usually used to refer to acts taken by a corporation or officers of a corporation that are taken outside of the powers or authority granted to them by law or under the corporate charter. Some states have enacted laws to prevent the use of the defense of ultra vires action to unfairly avoid obligations under otherwise valid contracts.

The concept of acting "under color of law" means acts are done while a person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. This is a similar concept that refers to the apparently authorized status of the action, as distinguished from the unauthorized status of their actions, which ultra vires refers to. The following is an example of a state statute dealing with the concept of ultra vires: a. "Except as provided in subsection (b), the validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act. A corporation's power to act may be challenged: 1. In a proceeding by a shareholder against the corporation to enjoin the act; 2. In a proceeding by the corporation, directly, derivatively, or through a receiver, trustee, or other legal representative, against an incumbent or former director, officer, employee, or agent of the corporation; or 3. In a proceeding by the Attorney General under Section 10-2B-14.30. b. In a shareholder's proceeding under subsection (b)(1) to enjoin an unauthorized corporate act, the court may enjoin or set aside the act, if equitable and if all affected persons are parties to the proceeding, and may award damages for loss (other than anticipated profits) suffered by the corporation or another party because of enjoining the unauthorized act."
Doctrine of Ultra Vires In Corporate LawDOCTRINE OF ULTRA VIRES-EFFECTS AND EXCEPTIONS CONCEPT

The object clause of the Memorandum of the company contains the object for which the company is formed. An act of the company must not be beyond the objects clause, otherwise it will be ultra vires and, therefore, void and cannot be ratified even if all the members wish to ratify it. This is called the doctrine of ultra vires, which has been firmly established in the case of Ashtray Railway Carriage and Iron Company Ltd v. Riche. Thus the expression ultra vires means an act beyond the powers. Here the expression ultra vires is used to indicate an act of the company which is beyond the powers conferred on the company by the objects clause of its memorandum. An ultra vires act is void and cannot be ratified even if all the directors wish to ratify it. Sometimes the expression ultra vires is used to describe the situation when the directors of a company have exceeded the powers delegated to them. Where a company exceeds its power as conferred on it by the objects clause of its memorandum, it is not bound by it because it lacks legal capacity to incur responsibility for the action, but when the directors of a company have exceeded the powers delegated to them. This use must be avoided for it is apt to cause confusion between two entirely distinct legal principles. Consequently, here we restrict the meaning of ultra vires objects clause of the companys memorandum. Basic principles included the following: An ultra vires transaction cannot be ratified shareholders, even if they wish it to be ratified. by all the

The doctrine of estoppel usually precluded reliance on the defense of ultra vires where the transaction was fully performed by one party A fortiori, a transaction which was fully performed by both parties could not be attacked.

If the contract was fully executory, the defense of ultra vires might be raised by either party. If the contract was partially performed, and the performance was held to be insufficient to bring the doctrine of estoppel into play, a suit for quasi contract for recovery of benefits conferred was available. If an agent of the corporation committed a tort within the scope of his or her employment, the corporation could not defend on the ground the act was ultra vires.

apart from the common-law courts to grant relief that was due under general principles of fairness but could not be obtained under the strict legal precedents of the common-law courts. The system of basing decisions on basic principles of fairness became known as Equity. The Chancery Court developed quantum meruit along with other equitable doctrines that allowed a person to recover or collect for other valuable acts performed without a contract, such as the delivery of goods or money. Some of the first cases of quantum meruit involved recovery by persons in so-called trades of common calling, such as innkeepers, tailors, blacksmiths, and tanners.

quantum meruit (kwahn-tuhm mare-ooh-it) n. Latin for

"as much as he deserved," the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. This may include a physician's emergency aid, legal work when there was no contract, or evaluating the amount due when outside forces cause a job to be terminated unexpectedly. If a person sues for payment for services in such circumstances the judge or jury will calculate the amount due based on time and usual rate of pay or the customary charge, based on "quantum meruit" by implying a contract existed.

QUANTUM MERUIT
[Latin, As much as is deserved.] In the law of contracts, a doctrine by which the law infers a promise to pay a reasonable amount for labor and materials furnished, even in the absence of a specific legally enforceable agreement between the parties. By allowing the recovery of the value of labor and materials, quantum meruit prevents the Unjust Enrichment of the other party. A person would be unjustly enriched if she received a benefit and did not pay for it when fairness required that payment be made. Quantum meruit can be used to address situations where no contract exists or where a contract exists but for some reason is unenforceable. In such cases courts imply a contract to avoid an unjust result. Such contracts are called quasi contracts. Quantum meruit also describes a method used to determine the exact amount owed to a person. A court may measure this amount either by determining how much the defendant has benefited from the transaction or by determining how much the plaintiff has expended in materials and services. The doctrine of quantum meruit was developed in the seventeenth century by the royal Court of Chancery in England. This court worked