Maxims: The Legal Chance to be Heard

October 22, 2013 § 1 Comment

“No one should be condemned without a legal chance to be heard.”

This concept is so fundamental to our notions of due process that it almost goes without saying. Judge griffith expounded on it this way:

This maxim is so clearly founded in natural justice that even savages would understand it, and every decent modern government observes it as an indispensible principle of constitutional right. A decree rendered in its absence is utterly void, as it ought to be. A decree in personam cannot be rendered without a personal appearance or without personal notice sereved within the territorial limits of the state, and a decree bearing upon personal property situated within the state but owned by a non-resident is not valid unless by some reasonable method to be prescribed by law the defendant is given notice by constructive process, such as notice by publication. Griffith, § 48, p. 50.

The MRCP modified process to allow personal service outside the boundaries of the state.

The principle is found consistently in our jurisprudence. If there is no personal jurisdiction, if there is no notice, the court may not act.

The one exception is MRCP 65 pertaining to temporary restraining orders (TRO) without notice. These are not favored, however, unless the circumstances are of such an emergency and exigent nature that relief must be granted immediately. Even in such cases, however, the TRO may be dissolved upon motion of the enjoined party on only two days’ notice, and in no event may extend by the initial order for more than ten days.

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