XPost: aus.legal
From: al_nevski@yahoo.com
I don't want to agrue here, just point out a few things that might be of
help to you.
American civil litigation is different, say, from French, because there are
no clear-cut "because-therefore" rules.
The bottom line is to convince the judge. The judge is THE LAW - the police
will enforce court's (i.e. judge's) decision.
The question is how do you convivce the judge to side with you.
The judges fall for sympathetic petitioners, or defendants with simple
arguments. To rationalise their decision, the judges may emply fine
sophistry, if necessary. That's, in a nutshell, is the job description.
Anything, and everything can happen in the american/canadian court room:
I've seen some really bizzare stuff.
Let me put it this way - I can think of a number of arguments which will
make [setting default judgement aside] as a reasonable thing to do.
Now, the questions you've written are confusing, or far from clear.
I know, in YOUR mind it all makes perfect sense. But you haven't found the
clear way to deliver YOUR mind.
Therefore, make your argument so simple, so concise, so short, there would
be NO WAY to misunderstand it.
To do this is no easy task.
The "sneaky stuff" are the "becauses-therefores" that the judge will see you
are clutching to straws. Judges, I found, don't know the laws, they seem to
follow their noses.
Al.
wrote in message
news:h91bmu$i9c$1@news.eternal-september.org...
> In article , "Al"
> wrote:
>
>> The indirect proof (i.e. ...therefore, he must have...) is only practiced
>> in
>> criminal proceedings.
>
>> In civil litigation, you are not to infer your conclusions beyond what's
>> in
>> your claim.
>>
> Can you cite an authority for that.
> I don't dispute it but I'd like to see the formal wording.
>
> OK, in the context of my query. The summons [as required] specified
> that the debt was owed per. account submitted, which account was for
> 2 months services [including variable/metered water consumption].
> So, can the default judgment set aside, be refused, on grounds that
> when the default judgement was granted, the debt had grown to
> $30, by the debtor's LATER admission ?
>
> Could you eg. infer that the debtor didn't receive the summons by
> just providing proof that he'd been in a coma for 3 months including the
> summoms delivery time?
>
> Can you infer that the cat's not breathing, by proving that it's dead, or
> must you have allegded that it's not breathing ?
>
>> Think of the civil litigation as a sword duel. Any thrust must be
>> irect -- no sneaky stuff.
>> To draw "nearby" conclusions -- that's the sneaky stuff.
>>
> Ok, but 'sneaky stuff' is too vague for me.
> ------------
> The debtor needs to have alledged 'his arguement'.
>
> < But the MA/creditor took the debtor's spreadsheet admission
> of owing $50 at month 5 ie. AFTER the default judgment as
> an admission of 'the claim'. And the Court accepted it.
> Then the appeal Court accepted that cause can't come after
> effect and changed the argument to "oh well you admitted
> owing $30 at the time of the summons; so you did admit
> owing the debt and more.>
>
> NB. the debtor failed to alledge DIRECTLY that he owed
> $20 at the time that the claim for $22 was made. Because
> this fact was contained in the debtor's spread sheet, which
> the creditor used to illogically 'prove' that the debtor admitted
> the claim.
>
> So the necessary allegation by the debtor was in the record,
> but was submitted by the CREDITOR.
> So, formally the debtor didn't submit the necessary allegation.
> But if we consider the purpose of the rule: "all necessary
> allegations must be in the record before the decision/argument",
> then we see that the necessary allegation was provided by the
> opponent. Would that satisfy the debtor's legal requirements ?
>
>> Al.
>
> Thanks for the feedback,
>
> == Chris Glur.
>
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