Also known as: ex parte applications · ex-parte application · ex-parte applications · ex parte motion · ex parte proceeding
Written by attorneys — see sources below.
A request or petition presented to a court or tribunal by one party without prior notice to the opposing party. The absence of an adversary heightens the moving party's duty to supply all material facts that will enable an informed decision.
Atlas Machines retained attorney Diaz to obtain an emergency writ authorizing seizure of allegedly counterfeit parts from Apex Supply. State law permitted the writ application to proceed ex parte. Diaz possessed a lab report indicating the parts might not infringe but presented only the client's affidavits. The judge issued the writ without the benefit of contrary information.
Milligan, held by military authorities during the Civil War, filed an ex parte habeas corpus petition in federal court seeking release. The petition challenged the legality of his detention without trial. The court considered the application without any opposing submission from the government.
In October 1864 Lambdin P. Milligan, a citizen of Indiana who had lived in the state for twenty years and had never been in the military or naval service of the United States, was arrested at his home by order of General Alvin P. Hovey, commanding the military district of Indiana. He was charged with conspiracy against the United States, affording aid and comfort to rebels, inciting insurrection, disloyal practices, and violation of the laws of war. On October 21, 1864, Milligan was brought before a military commission convened at Indianapolis pursuant to orders from the President and the War Department; the commission found him guilty on all charges and sentenced him to death, a sentence approved by the President with execution first set for May 19, 1865, and later postponed. After the military proceedings ended, Milligan petitioned the Circuit Court of the United States for the District of Indiana for a writ of habeas corpus, asserting that the military commission lacked jurisdiction because he was a civilian citizen of a loyal state where the civil courts remained open and functioning. The petition stated that a grand jury had convened in the Circuit Court in January 1865, had been charged to inquire into violations of United States law, and had adjourned without indicting or presenting him; no indictment or presentment was ever returned against him. The petition was presented in open court on May 10, 1865, and the United States attorney appeared and submitted the application by agreement. The Circuit Court judges divided on three questions and certified them to the Supreme Court: whether a writ of habeas corpus ought to issue on the facts stated in the petition and exhibits, whether Milligan ought to be discharged from custody, and whether the military commission had jurisdiction to try and sentence him. The record filed with the certificate included the order convening the commission, the charges and specifications, the commission's findings and sentence, and the War Department order reciting presidential approval and directing execution. The Supreme Court heard argument from counsel for Milligan and for the United States on the certified questions.
View caseA creditor filed an ex parte application under state law to attach Doehr's real property before judgment. The attachment rested solely on the creditor's affidavit alleging probable cause. Doehr received no notice or hearing before the seizure took effect.
In March 1988, John F. DiGiovanni submitted an application to the Connecticut Superior Court for a prejudgment attachment in the amount of $75,000 on Brian K. Doehr's home in Meriden, Connecticut, in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr. DiGiovanni had no pre-existing interest in Doehr's real estate, and the suit did not involve the property. Connecticut law authorized prejudgment attachment of real estate without prior notice or hearing upon verification by oath that there was probable cause to sustain the validity of the plaintiff's claim. DiGiovanni accompanied the application with an affidavit stating that the facts set forth in his complaint were true, that he had been willfully, wantonly and maliciously assaulted by Doehr resulting in a broken left wrist, an ecchymosis to his right eye, and other injuries, and that he had expended sums for medical care and treatment. The affidavit concluded that these facts were sufficient to show probable cause that judgment would be rendered for the plaintiff. On March 17, 1988, the Superior Court judge found probable cause to sustain the validity of the claim and ordered the attachment on Doehr's home to the value of $75,000. The sheriff attached the property on March 21, 1988. Doehr first learned of the attachment after it had been recorded on the land records. He had not yet been served with the complaint. The attachment notice informed Doehr of his right to a hearing to claim that no probable cause existed, to request that the attachment be vacated or modified or a bond substituted, or to claim that some portion of the property was exempt. Doehr filed suit in the United States District Court for the District of Connecticut claiming that the Connecticut statute violated the Due Process Clause of the Fourteenth Amendment. The District Court granted summary judgment upholding the statute. The Court of Appeals for the Second Circuit reversed. The Supreme Court granted certiorari to resolve the conflict of authority regarding the statute's constitutionality.
View caseNeff obtained an ex parte default judgment against a nonresident defendant whose only contact with the forum was ownership of land. The judgment was later used to sell the land to satisfy the debt. The defendant had received no personal notice of the underlying action.
In February 1866, J.H. Mitchell obtained a judgment in an Oregon circuit court against Neff for less than $300 in an action for attorney services. At that time, Neff resided outside Oregon, received no personal service of process, and made no appearance in the case. The judgment was entered by default following constructive service by publication as authorized by the Oregon Code for non-resident defendants possessing property within the state. The Oregon Code also provided for attachment of a non-resident's property in money actions. No such attachment occurred with respect to the land at issue. Instead, after the judgment, an execution issued, leading to a levy on the land and its sale at a sheriff's auction. Pennoyer purchased the property at that sale and received a sheriff's deed. Separately, in 1866, the United States issued a patent to Neff for the same tract of land under the Donation Law of Oregon, which Neff valued at $15,000. Neff then brought suit against Pennoyer in the circuit court to recover possession of the premises based on his patent title. The lower court held the Oregon judgment invalid because of deficiencies in the affidavits used to obtain the publication order and to prove publication occurred. The Supreme Court of the United States granted review to consider the validity of the state court judgment and the resulting sheriff's sale.
View caseA seller obtained an ex parte writ of replevin authorizing seizure of household goods from a buyer who had defaulted on payments. The writ issued on the seller's affidavit alone and without prior notice to the buyer. State law permitted the seizure upon a showing of probable cause.
Margarita Fuentes, a Florida resident, purchased a gas stove and a stereophonic phonograph from the Firestone Tire and Rubber Company under conditional sales contracts calling for monthly payments over time, with Firestone retaining title until full payment. After making payments for more than a year, about two hundred dollars remained due. A dispute developed between Fuentes and Firestone over servicing of the stove. Firestone then instituted an action in small claims court for repossession. It obtained a writ of replevin from the court clerk by submitting form documents and posting a bond in double the value of the property. A deputy sheriff and Firestone agent seized the stove and stereo from Fuentes's home the same day. Fuentes subsequently brought an action in federal district court challenging the constitutionality of the Florida prejudgment replevin procedures. A three-judge district court was convened and upheld the statute. In the consolidated Pennsylvania case, several residents purchased household goods such as beds, tables, and other items under similar installment contracts. After claimed defaults, sellers obtained writs of replevin from a prothonotary upon ex parte applications and posting of bonds. County sheriffs seized the goods from the buyers' homes without prior notice. This included one instance where a former deputy sheriff obtained a writ for his son's clothes, furniture, and toys. The Pennsylvania appellants filed suit in federal district court, where a three-judge court upheld the statute. The Supreme Court noted probable jurisdiction of the appeals from both district court decisions.
View caseIn an ex parte proceeding the lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse to the client. This duty arises because the opposing party has no opportunity to present contrary evidence.
Supporting sources
No. Even when relief is granted ex parte, the court must state the findings and conclusions supporting its action on the record. The absence of notice makes a clear articulation of the basis for the order more important, not less.
Supporting sources
A state statute permitting prejudgment attachment of real property on an ex parte application violates due process absent extraordinary circumstances. Notice and a hearing are ordinarily required before such a deprivation. Prompt post-attachment review may suffice only in genuinely exigent situations.
Supporting sources
…of the right of every man before being condemned of crime, to be heard and tried by an impartial jury? Second. This being an ex parte application for a writ of habeas corpus made to a court, the division of opinion then occurring was in effect a decision of the case. The case was ended when the court declined to issue the writ. It…