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to Table of Contents [Oneida
Indian Nation (New York) Codes and Rules]
Last amended: 2004 RULES OF CIVIL PROCEDURE
Chapter 1 - Rules of Civil Procedure Rule 1.
General provisions Rule 36.
Definitions Rule 48.
Appeals from the Trial Court
1. GENERAL PROVISIONS
a. Scope. Except as otherwise provided by law, these rules shall govern the procedure in the Trial and Appellate courts of the Oneida Indian Nation, in all actions, suits and proceedings of a civil nature and in any other special proceedings established by Nation law. b. Jurisdiction. The jurisdiction of the court shall be as set forth in the Establishment of the Oneida Nation Court, Ordinance Number 0-97-02. c. Construction. These rules shall be liberally construed to secure a just, speedy, and inexpensive determination of every action.
a. One Form of Action. There shall be one form of action known, as a "civil action" in which the party complaining shall be designated "Plaintiff" and the adverse party "Defendant". b. Commencement of Action. A civil action is commenced by filing a complaint with the Clerk of the Court, and payment of the filing fee in the amount of fifty ($50.00) dollars. c. Service of Process. Service of process shall consist of delivering to the party served a copy of the complaint along with a summons, issued by the Clerk, which advises the party that he is required to answer the complaint within 20 days or a default judgment will be entered against him.
d. Service of all papers required to be filed, except the complaint, may be made by mail, first class postage prepaid and properly addressed, by facsimile, or hand-delivery.
a. Computation. In computing any period of time, the day from which the period is to commence shall not be counted and the last day of the period shall be counted; provided, however, that any time period under seven (7) days will not include intermediate Saturdays, Sundays, or legal holidays in the period and any period which would otherwise end on a Saturday, Sunday, or legal holiday will be deemed to end on the next day which is not a Saturday, Sunday or legal holiday. b. Enlargement. The court for good cause shown may enlarge the prescribed period of time within which any required act may be done. c. Notice of Motions. Written motions and notice of hearing thereon, other than ones which may be heard ex parte, shall be served not later than five (5) days prior to the time specified for the hearing. d. Service by Mail. Whenever service is accomplished by mail, three days shall be added to the prescribed period of time, but such addition shall not cause Saturdays, Sundays, or legal holidays to be counted in the time period if they would not otherwise have been counted.
a. Pleadings. There shall be a complaint and an answer. A responsive pleading shall be allowed whenever, by cross claim, counterclaim or otherwise, a party is first claimed against unless the court shall otherwise order. The court may grant additional leave to plead in the interest of narrowing and defining issues or as justice may require. b. Motions and Orders.
a. Claims for Relief. A pleading which sets forth a claim for affirmative relief shall contain:
b. Defenses and Denials. A party shall state in plain, concise terms the grounds upon which he bases his defense to claims pleaded against him, and shall admit or deny the claims and statements upon which the adverse party relies. If he is without information or knowledge regarding a statement or claim, he shall so state and such shall be deemed to be a denial. Denials shall fairly meet the substance of the claims or statements denied. A general denial shall not be made unless the party could in good faith deny each and every claim covered thereby. A claim to which a responsive pleading is required, except for amount of damages, shall be deemed admitted unless denied; if no responsive pleading is allowed the claims of the adverse party shall be deemed denied. c. General Content of Claim and Defenses. Claims and defenses shall be simply, concisely, and directly stated, but may be in alternative or hypothetical form, on one or several counts or defenses, need not be consistent with one another, and may be based on legal or equitable grounds or both. d. Affirmative Defenses. Matters constituting an affirmative defense or avoidance shall be affirmatively set forth. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court may treat the pleading as if it had been properly designated if justice so requires. e. Construction of Pleadings. All pleadings shall be construed so as to do substantial justice.
a. Caption. Every pleading shall contain a caption heading, the name of the court, the title of the action, the court file number (if known) and a designation as to what kind of pleading it is. All pleadings shall contain the names of the parties. b. Paragraphs. Claims or defenses shall be s e t forth in separate numbered paragraphs. Claims or defenses founded upon separate transactions or occurrences should be set forth in separate counts or defenses. c. Exhibits; Adoption by Reference. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of a written instrument which is an exhibit to a pleading is a part thereof for all purposes. d. Paper Used in Pleadings. Pleadings and other papers filed in any action shall be on 8 112" x 11" paper, double spaced, except for matters customarily single spaced, and contain the court file number on the first page thereof. Substantial compliance with this rule will be sufficient.
a. When Presented. A defendant or other party against whom a claim has been made for affirmative relief shall have twenty (20) days from the date of service upon him to answer or respond to the claim. b. Motions. Motion(s) to dismiss for (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party or to make the opposing parties' pleadings more definite may be made prior to answering a claim and an answer will not be due until ten (10) days after the disposition of the motion(s) by the Court.
a. Counterclaim. A party against whom a claim is made may assert in his answer any claims he has against the party claiming against him. b. Crossclaim. A party against whom a claim is made may assert any claim he has against a co-party. c. Third Party Claim. A party against whom a claim is made may complain against a third party who is or may be liable for payment or performance of the claim of the opposing party.
a. Amendment before trial. A party may amend his pleadings once before the opposing party has answered or if no answer is required, not less than twenty (20) days before the case is scheduled for trial. The opposing party may respond, if appropriate. Other amendments shall be allowed only upon motion and order of the Court. b. At Trial. When issues or evidence not raised in the pleadings are heard at trial, the judgment may conform to such issues or evidence without the necessity of amending the pleadings.
a. Real Party in Interest. Every action shall be prosecuted in the name of the real party interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the Nation so provides, an action for the use or benefit of another shall be brought in the name of the Nation. b. Guardian Ad Litem. When an infant, or incompetent person, who has not had a guardian appointed, is a party the Court shall appoint a guardian ad litem to represent such person in the suit or action. c. Joinder of Parties. To the greatest extent possible all person or parties interested in a particular action may be joined in the action, but failure to join a party over whom the Court has no jurisdiction will not require dismissal of the action unless it would be impossible to reach a just result without such party. d. Indispensable Parties.
a. A person may intervene and be treated in all respects as a party to an action in cases in which the applicant claims an interest relating to the property or transaction which is the subject of the action, unless the applicant's interest is adequately represented by existing parties. b. In any action, suit, or proceeding to which the Nation or any agency, officer, or employee thereof is a party in a non-official capacity, wherein the legality or enforceability or legality of any statute of the Nation affecting the public interest is drawn in question, the Court shall certify such fact to the Nation Representative, and the Court shall permit the Nation to intervene for presentation of evidence, if the evidence is otherwise admissible in the case, and for argument on the question of legality or enforceability. The Nation shall have all the rights of a party.
A party may be joined or substituted if a party dies, becomes incompetent, transfers his interest or is sued in his official capacity, and is no longer functioning in that capacity.
a. Time. The parties may obtain discovery upon the filing of the complaint. b. Interrogatories. A party may submit written interrogatories to any other party and that party shall answer them in writing, under oath, within thirty (30) days of receipt of such. c. Depositions. A party may take the oral deposition of an adverse party or nonparty witness under oath upon thirty (30) days notice, specifying the time and place where the deposition will take place. d. Production, Entry, or Inspection. A party may request another party to produce any documents or things in his custody or possession for inspection or copying or request permission to enter and inspect property of another party that is reasonably related to the case, and the opposing party shall within thirty (30) days reply as to whether or not such will be allowed and if not, why not. e. Scope of Discovery. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the pending action, whether or not such would be admissible at trial, if such appears reasonably calculated to lead to the discovery of admissible evidence; except that discovery may not be had of the work product of a party's attorney. f. Protective Order. A party against whom discovery is sought may move the Court for a protective order to prevent undue annoyance, harassment, embarrassment, oppression, or undue burden or expense, and the court may order that the discovery cease or proceed only upon specified conditions. g. Failure to Make Discovery. If a party fails to respond or appear for discovery as provided in this Rule, the opposing party may move for an order to compel the defaulting party to perform and the court may award costs to the non-defaulting party. If a party fails to perform after being ordered to do so by the Court, the Court may, upon motion, order that a certain fact, claim, or defense be deemed established or strike part of a claim or defense, or dismiss or render a judgment by default against the non-complying party. h. Use of Discovery. Answers to interrogatories and depositions may be used in a motion, hearing or at trial for any purpose, by any party. i. Expedited Discovery. Discovery may be expedited by any party upon a showing of need.
The Court shall hear and decide all cases.
a. Assignment of Judge and Date. The Chief Trial Judge shall determine which judge shall hear a case, and shall provide by rule for the placing of cases on the court calendar. b. Postponement. Upon motion of a party, the court may in its discretion, and upon such terms as it deems just, including the payment of any cost occasioned by such postponement, postpone a trial or proceeding upon good cause shown.
a. Voluntary Dismissal. Prior to the responsive pleading of a party against whom a claim has been made or motion to dismiss or for summary judgment on such claim, the party making the claim may file a notice of dismissal and his claim shall be deemed dismissed without prejudice. In all other circumstances a party may move the court to dismiss his own claim and the court shall do so either with or without prejudice as is just and proper; provided, however, if a crossclaim or counterclaim has been filed against the moving party, the judge shall dismiss the claim only with the consent of the adverse party or only if it appears that the other party can prosecute his claim independently without undue additional hardship. b. Involuntary Dismissal. A party against whom a claim has been made may move the court to dismiss the claim of the adverse party upon any of the following grounds:
c. The court may order a party moving to dismiss his own claim to pay the costs of the adverse party if the proceeding has progressed beyond the pleading stage, and may order payment of costs in other circumstances where such is deemed appropriate.
Consolidation. The court may, upon motion of any party or its own motion, order some or all of the issues of separate actions tried together when there is a common issue of fact or law relating the actions or if such will tend to avoid unnecessary cost or delay.
Form and Admissibility. At all hearings and trials, the testimony of witnesses shall be taken orally under oath, unless otherwise provided in these rules. All evidence admissible under the Oneida Indian Nation Rules of Evidence shall be admissible and the competency of witnesses to testify shall be similarly determined.
a. Issuance. Subpoenas for attendance of witnesses or production of documents or things shall be issued and served as provided elsewhere in these Rules. b. Failure to Appear. A person who has been properly served with a subpoena and fails to appear or produce may be deemed in contempt of court and the court may order sanctions against the person or the party. c. Subpoena Unnecessary. A person present in court may be required to testify in the same manner as if he were in attendance upon a subpoena.
In all cases except, where a party defaults or fails to appear, findings of fact and conclusions of law shall be made by the court in support of all final judgments. Upon its own motion or the motion of any party within ten days of the entry of judgment, findings may be amended or added to and the judgment may be amended accordingly.
a. Definition. A judgment includes any final order from which an appeal is available and no special form of judgment is required. b. Judgment on Multiple Claims. When more than one claim for relief is presented in an action, however designated, a final judgment may be entered on less than all of such claims only upon the Court's specifically finding that such is justified. Absent such a finding, an order or decision will not terminate the action as to any of the claims until all claims are finally decided, nor will the appeal period commence to run. c. Demand for Judgment.
d. Costs. Unless the court shall otherwise direct, the court shall allow necessary costs and disbursements to the prevailing party or parties as a matter of course. Such prevailing party shall file with the court a verified memorandum of his costs and necessary disbursements within five (5) days of the entry of judgment and serve a copy of such on the opposing party, and if such are not objected to within ten (10) days, they shall be deemed to be a part of and included in the judgment rendered. The appellate court may award costs in a like manner. e. Attorney's fees. The court shall not award attorney's fees unless a contract or agreement of the parties specifically so provides, or unless it reasonably appears that the case had been prosecuted for purposes of harassment only, or that there was no reasonable expectation of success on the part of the claiming party.
a. Entry of Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, his default may be entered by the clerk and judgment by default granted. Once the default is entered no further notice to the defaulting party of any action taken or to be taken need be given. b. Judgment by Default. Judgment by default may be entered by the clerk if a party's claim against the opposing party is for a sum of money which is or can by computation be made certain, and if the opposing party has been personally served. Otherwise, judgment by default can be entered only by the court upon receipt of whatever evidence the court deems necessary to establish the claim. No judgment by default shall be entered against the Oneida Indian Nation. c. Setting Aside Default. The court may, for good cause shown, set aside either an entry of default or a default judgment. The motion to set aside shall be made within one year from the entry of the default judgment.
At any time after twenty (20) days after commencement of an action, any party may move the court for summary judgment as to any or all of the issues presented in the case and such shall be granted by the court if it appears that there is not genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such motions, which shall be served not less than ten (10) days prior to the hearing on said motion, shall be supported by affidavits, discovery or memoranda.
a. Judgment. Judgments shall be signed by the judge and filed with the clerk. b. Effectiveness; Recordation. A judgment is complete and shall be deemed entered for all purposes when it is signed and filed with the Clerk. c. Satisfaction of Judgment. A judgment may be satisfied, in whole or in part, by the judgment creditor executing under oath, and filing an acknowledgment of satisfaction of judgment specifying the amount paid and whether such is a full or partial satisfaction. A judge may order the entry of satisfaction of judgment upon proof of payment and failure of the judgment creditor to file a satisfaction. The clerk shall file all satisfactions of judgment. d. Effect of Satisfaction; Limitation.
a. Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice as the court may direct. b. Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud. On motion and upon such terms as are just, the court may, in the furtherance of justice, relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
No error in either the admission or the exclusion of evidence, and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties, is grounds for granting a new trial or otherwise disturbing a judgment order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding shall disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
a. Stay upon Entry of Judgment. Proceedings to enforce a judgment may issue immediately upon the entry of the judgment, unless the court in its discretion and on such conditions for the security of the adverse party as are proper, otherwise directs. b. Stay of Judgment Upon Multiple Claims. When a court has ordered a final judgment on some but not all of the claims presented in the action under the conditions stated in Rule 25, the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered. c. Waiver of Undertaking. In all cases, the parties may, by written stipulation, waive the requirements of this rule with respect to the filing of a bond or undertaking. In all cases where an undertaking is required by these rules a deposit in court in the amount of such undertaking, or such lesser amount as the court may order, is equivalent to the filing of the undertaking.
a. Disability. If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court may, following review of the records and transcripts, perform those duties. b. Disqualification. Whenever a party to any action or proceeding, or his attorney shall make and file an affidavit that the judge before whom such action or proceeding is to be tried or heard has a bias or prejudice, either against such party or his attorney or in favor of any opposite party to the suit, such judge shall proceed no further therein, except to call in another judge to hear and determine the matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed as soon as practicable after the case has been assigned or such bias or prejudice is known. If the judge against whom the affidavit is directed questions the sufficiency of the affidavit, he shall enter an order directing that a copy thereof be forthwith certified to another judge (naming him), which judge shall then pass upon the legal sufficiency of the affidavit. If the judge against whom the affidavit is directed does not question the legal sufficiency of the affidavit, or if the judge to whom the affidavit is certified finds that it is legally sufficient, another judge must be called in to try the case or determine the matter in question. No party shall be entitled in any case to file more than one affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.
a. Preliminary Injunction; Notice. No preliminary injunction shall be issued without notice to the adverse party. b. Temporary Restraining Order; Notice; Rehearing; Duration.
c. Security. Except as otherwise provided by law, no restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the Oneida Indian Nation or of an officer or agency of the Nation. A surety upon a bond or undertaking under this rule submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the persons giving the security if their addresses are known. d. Form and Scope of Injunction or Restraining Order; Service. Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. e. Grounds for Injunction. An injunction may be granted:
a. Habeas Corpus. Appropriate relief by habeas corpus proceedings shall be granted whenever it appears to the court that any person is unjustly imprisoned or otherwise restrained of his liberty. Upon the filing of the complaint the court shall, unless it appears from such complaint or the showing of the petitioner that he is not entitled to any relief, issue a writ directed to the defendant commanding him to bring the person alleged to be restrained before the court at a time and place therein specified, at which time the court shall proceed in a summary manner to hear the matter and render judgment accordingly. If the writ is not issued, the court shall state its reasons therefore in writing and file the same with the complaint, and shall deliver a copy thereof to the plaintiff. If the defendant cannot be found, or if he does not have such person in custody, the writ (and any other process issued) may be served upon any one having such person in custody, in the manner and with the same effect as if he had been made a defendant in the action. The defendant shall appear at the proper time and place with the petitioner designated or show good cause for not doing so and must answer the complaint within the time allowed. The answer must state plainly and unequivocally whether he then has, or at any time has had the person designated under his control and restraint, and if so, the cause thereof. If such person has been transferred, the defendant must state that fact, and to whom, and when, the transfer was made, and the reason or authority therefore. The writ shall not be disobeyed for any defect of form or misdescription of the person restrained or defendant, if enough is stated to show the meaning and intent thereof. The person restrained may waive his right to be present at the hearing, in which case the writ shall be modified accordingly. Pending a determination of the matter the court may place such person in the custody of such individual or individuals as may be deemed proper. b. Habeas Corpus; Decision. In each case, the court, upon determining the case, shall enter specific findings of fact and conclusions of law and judgment, in writing, and the same shall be made a part of the record in the case. If the court finds in favor of the complainant, it shall enter an appropriate order with respect to judgment or sentence in the former proceedings and such further orders with respect to re-arraignment, retrial, custody, bail, or discharge as the court may deem just and proper in the case. c. Habeas Corpus Availability. Except in cases of extraordinary injustice, habeas corpus relief shall not be available to a person incarcerated as a result of a criminal conviction where the alleged grounds for relief have been or could have been raised by an appeal following the conviction.
1. Seizure of Person or Property. At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by Nation law, existing at the time the remedy is sought. 2. Receivers Appointment by the Nation Court. An action where a receiver has been appointed shall not be dismissed except by order of the Court. The practice in the administration of estates by receivers or by other similar officers appointed by the Court shall be in accordance with Nation probate law. In all other respects the action in which the appointments of a receiver is sought or which is brought by or against a receiver is governed by this Code. 3. Deposit in Court. In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of Court, may deposit with the Court all or any part of such sum or thing. 4. Process in Behalf of and Against Persons not Parties. When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party. 5. Security - Proceedings Against Sureties. Whenever this Code or other Nation law requires or permits the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the Court and irrevocably appoints the Clerk of the Court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the Court prescribes may be served on the Clerk of the Court, who shall forthwith mail copies to the sureties. Any surety authorized to give a bond or other undertaking in either the Federal courts or the State courts and any individual approved by the Court shall be eligible to give such bond or undertaking in the Court under this Code of other Nation law unless otherwise prohibited by Nation law. 6. Execution. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the Court directs otherwise. In aid of the judgment or execution, the judgment creditor or his successor in interest, when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in this Code.
1. The plaintiff in a civil action for the recovery of money may, at or after the commencement of the action, have an attachment against the property of the defendant upon proof of any of the following grounds:
2. Attachment Affidavit. An order of attachment may be issued by the Court when:
3. Attachment Bonds. The attachment bond for the benefit of the party whose property is attached shall be in such form and in such amount, not less than double the amount of the plaintiff claim, as the Court shall direct, and shall guarantee payment of all damages, costs, and reasonable attorney fee's incurred as a result of a wrongful attachment. No bond shall be required of the Nation. 4. Order of Attachment. The order of attachment shall be directed and delivered to the Chief of the Nation Police. It shall require him to attach the lands, tenements, goods, chattels, stocks, rights, credits, moneys and effects of the defendant within the territorial jurisdiction of the Court not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim. 5. When Returnable. The return day of the order of attachment when issued at the commencement of the action, shall be the same as that of the summons, and otherwise within twenty days of the date of issuance. 6. Order of Execution. Where there are several orders of attachment against the defendant, they shall be executed in the order in which they are received by the Chief of the Nation Police. 7. Execution of Attachment Order. The order of attachment shall be executed by the Chief of the Nation Police without delay. He shall go to the place within the Nation jurisdiction where the defendant's property may be found, and declare that, by virtue of said order, he attaches said property at the suit of the plaintiff; and the officer shall make a true inventory and appraisement of all the property attache, which shall be signed by the officer and returned with the order, leaving a copy of said inventory with the person or in the place from which the property was seized. 8. Service of Order.
9. Redelivery on Bond. The Chief of the Nation Police shall re-deliver the property to the person in whose possession it was found, upon the execution by such person, in the presence of the Chief of the Nation Police, an undertaking to the plaintiff, with one or more sufficient sureties, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the Court in the action.
1. A receiver may be appointed by the Court:
2. Persons Ineligible. No party, or attorney, or person interested in an action, shall be appointed receiver in the action except by consent of all parties to the action. 3. Oath and Bond. Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties, approved by the Court, execute an undertaking to such person and in such sum as the Court shall direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the Court. 4. Powers of Receiver. The receiver has, under the control of the Court, power to bring an defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, to collect debts, to compound for an compromise the same, to make transfers, and generally to do such act respecting the property as the Courts may authorize. 5. Investment of Funds. Funds in the hands of a receiver may be invested upon interest, by order of the Court; but no such order shall be made, except upon the consent of all the parties to the action or except by order of the Court. 6. Disposition of Property Litigated.
7. Punishment for Disobedience of Court. Whenever, in the exercise of its authority, the Court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the Court, besides punishing the disobedience as for contempt, may make an order requiring the Chief of the Nation Police to take the money, or thing, and deposit or deliver it, in conformity with the direction of the Court. 8. Vacation of Appointment by Appellate Court. In all cases in the Trial Court in which a receiver has been appointed, or refused, the party aggrieved may, within ten (10) days thereafter have the right to file a motion to vacate the order refusing or appointing such receiver, and hearing on such motion may be had before the Appellate Court, and pending the final determination of the cause, if the order was one of the appointment of a receiver, the moving party shall have the right to give bond with good and sufficient sureties, and in such amount as may be fixed by order of the Court, conditioned for the due prosecution of such case, and the payment of all costs and damages that may accrue to the nation, or any officer, or person by reason thereof, and the authority of any such receiver shall be suspended pending a final determination of such cause, and if such receiver shall have taken possession of any property in controversy in said action, the same shall be surrendered to the rightful owner thereof, upon the filing and approval of said bond.
1. Homestead; Extent of Exemption
2. Personal Property; Articles Exempt Every person residing within the territorial jurisdiction of the Nation shall have exempt from seizure and sale upon any attachment, execution or other process issued from the Court, the following articles of personal property:
3. Not Exempt from Wages. None of the personal property mentioned in this Rule shall be exempt from attachment or execution for the payment of wages of any employee of the debtor. 4. Pension and Retirement Money Exempt, Exception; Support Money Held Exempt
5. Exemptions From Legal Process; Nation Property. The Nation shall be exempt from seizure and sale upon any attachment, execution or other process issued from the court.
As an aid to the enforcement of the judgment, an order of garnishment may be obtained and shall be issued by the Clerk. No bond is required for an order of garnishment issued after judgment. a. Service and Return. The order of garnishment shall be served on the garnishee, together with two copies of the form for the garnishee's answer and returned by the officer making service. b. Effect. An order of garnishment shall have the effect of attaching the nonexempt portion of the defendant's earnings for any pay period or periods which end during the 30 day period beginning the date the order is served. Nonexempt earnings are earnings which are not exempt from wage garnishment pursuant to this Rule, and computation thereof for any pay period or periods which end during the 30 day period beginning the date the order is served shall be made in accordance with the directions accompanying the garnishee's answer form sewed with the order of garnishment. c. Wage Garnishment: Definitions; Restrictions, Exceptions; Sickness Preventing Work; Assignment of Account: Prohibition on Courts.
d. Answer of Garnishee; Reply; Judgment. Within 10 days after service upon a garnishee of an order of garnishment the garnishee shall file a verified answer thereto with the clerk of the court, stating the facts with respect to the demands of the order. The Clerk shall provide the answer form. e. The clerk shall cause a copy of the answer to be mailed promptly to the plaintiff and the defendant. Within 10 days after the filing of the answer the plaintiff or the defendant or both of them may reply, controverting any statement in the answer. If the garnishee fails to answer within the time and manner specified, the court may grant judgment against the garnishee for the amount of the plaintiff's judgment or claim against the defendant. If the claim of the plaintiff has not been reduced to judgment, the liability of the garnishee shall be limited to the judgment ultimately rendered against the defendant. Such judgments may be taken only upon written motion and notice. If the garnishee answers as required herein and no reply is filed within 10 days, the allegations of the answer are deemed to be confessed. If a reply is filed as provided, the court shall try the issues joined, the burden being upon the party filing the reply to disprove the sworn statements of the answer, except that the garnishee shall have the burden of proving offsets or indebtedness claimed to be due from the defendant to the garnishee, or liens asserted by the garnishee against the property of the defendant. f. Effect of Offsets Claims by Garnishee. When the garnishee claims that he or she is not indebted to the defendant for the reason that the defendant is indebted to the garnishee, or that the indebtedness due to the defendant is reduced thereby, the garnishee is not discharged unless and until he or she applies the amount of his or her indebtedness to the defendant to the liquidation of his or her claim against the defendant. g. Trial.
h. Judgment in Garnishment Proceedings.
i. Bond of Defendant for payment of judgment. The defendant may at any time after the proceeding is commenced file with the clerk of the court a bond, to be approved by the judge of the court, in double the amount of the claim or such lesser amount as shall be approved by order of the judge to the effect that the defendant will pay to the plaintiff on demand the amount of the judgment and costs that may be assessed against such defendant, and thereupon the garnishee shall be discharged and any money or property paid or delivered to any officer shall be delivered to the person entitled thereto. j. Exceptions. No judgment shall be rendered in garnishment by reason of the garnishee:
k. Garnishment of funds held by financial institution.
a. Limitations Applicable. Civil actions can only be commenced within the periods prescribed in this Rule after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation. b. Limitation of Other Actions. Civil actions can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
e. Persons Under Disability. If a person entitled to bring an action be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one year after such disability shall be removed. f. Absence or Flight of Defendant. When a cause of action accrues against a person and that person is out of the territorial jurisdiction of the Nation or has concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the Nation jurisdiction, or while he is concealed, and if after the cause of action occurs he or she departs from Nation jurisdiction, the time of his concealment shall not be computed as any part of the period within which the action must be brought. If, after a cause of action accrues against a person and that person leaves the Nation jurisdiction or conceals himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. Provided, however, that if any statute which extends the exercise of personal jurisdiction of the Court over a person or corporation based upon service outside the territorial jurisdiction of the Nation, or based upon service by publication permits the Court of this Nation to acquire personal jurisdiction over the person, the period of his absence or concealment shall be computed as part of the period within which the action must be brought. g. Extension of Limitation. In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby. h. Statutory Bar Absolute. When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense, except as otherwise provided with reference to a counterclaim, set-off, or cross-claim. i. Law Governing Foreign Claims. The period of limitation applicable to a claim accruing outside of the Nation jurisdiction shall be that prescribed either by the law of the place where the claim accrued or by the law of this Nation whichever last bars the claim.
a. Foreign Judgments Defined. "Foreign judgment" means any judgment, decree, or order of a court of the United States, another Indian Nation or of any other court which is entitled to full faith and credit. b. Filing and Status of Foreign Judgments. A copy of an authenticated foreign judgment may be filed in the office of the clerk. The clerk of the Nation court shall treat the foreign judgment in the same manner as a judgment of the Nation court. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings as a judgment of the Nation court and may be enforced or satisfied in like manner. c. Filing and Status of Foreign Judgments -- Notice of Filing.
d. Filing and Status of Foreign Judgments -- Stay of Enforcement, When
e. Foreign Judgment; Filing; Court Fees. A person filing a foreign judgment shall pay to the clerk a docket fee in the amount of ten and 00/100 dollars ($10.00). Any additional fees or charges not specifically covered by the docket fee shall be assessed as additional court costs in the same manner and to the same extent as if the action had been originally commenced in the Nation court. f. Filing and Status of Foreign Judgments -- Optional Procedure. The right of a judgment creditor to bring an action to enforce his or her judgment instead of proceeding under this Rule remains unimpaired.
Comity may be given in the Oneida Nation Court to the judicial proceedings of any court of competent jurisdiction in which final judgments, orders or stays have been obtained, provided, however, that comity shall not be given to final judgments, orders and stays rendered by any court which declines or refuses to similarly recognize the final judgments, orders or stays of the Oneida Nation Court. Comity shall not be extended in any case which involves treaty rights of Nation members, including matters related to taxation and hunting and fishing, nor may comity be extended to any final judgment, order, stay, subpoena or compulsory process the enforcement of which would infringe upon the sovereignty of the Nation. Upon the granting of comity by the Oneida Nation Court to the final judgement, order or stay of a foreign court, the Nation shall honor and fulfill such final judgment, order or stay. The Nation shall be given notice and an opportunity to be heard on any motion for the extension of comity, and due regard shall be had by the Oneida Nation Court for the sovereign prerogatives of the Nation.
The small claims process may be used for claims for money or the delivery of tangible property where the matter in dispute has a value of two thousand dollars ($2,000.00) or less, exclusive of interest and costs.
Jurisdiction and limitations of actions in the small claims process proceedings shall be the same as in Rule 1 and Rule 32 of Chapter 1 of these Rules.
The small claims process is initiated by the claimant completing a form to be provided by the court clerk and paying the filing fee of five ($5.00) dollars.
When the claim is filed, the court clerk shall write upon the original of the small claims form the date and time of hearing and give the claimant a stamped copy of the form. The hearing shall take place no later than forty-five (45) days from the date the claim is filed. Continuance may be granted for good cause.
The court clerk shall send a copy of the small claims form to the defendant by certified mail, return receipt requested. This copy shall contain the notice of hearing as entered on the original. In the event that service of process cannot be obtained by mail, personal service may be made by any person over the age of eighteen (18) and not a party to the proceeding.
A written answer by the defendant shall not be required and the defendant may present any defense at the hearing.
The defendant may file a counterclaim by completing a counterclaim form and paying the filing fee which shall be the same as for a small claims complaint. The value of the counterclaim shall not exceed two thousand dollars ($2,000), exclusive of interest and costs. The counterclaim must be filed at least fifteen (15) days prior to the hearings. The court clerk shall, immediately after filing, send a stamped copy of the counterclaim to the claimant by certified mail, return receipt requested. If the counterclaim is in excess of two thousand ($2,000) dollars then the procedures set forth in Chapter 1 of these Rules shall be followed.
All parties may present evidence and the testimony of witnesses.
Subpoenas for witnesses and documents may be issued by the court upon request. The subpoenas may be served by any person eighteen (18) years of age or older who is not a party to the action. The person making service shall complete the' return of service and file the subpoena with the court clerk.
A judge shall enter judgment for a party after a hearing. Judgment shall be entered against a claimant if he/she who fails to appear for the hearing. Judgment shall be entered against a defendant who does not appear if the claimant proves his/her case. A judgment may be executed in any manner provided by Chapter 1 of these Rules.
A party shall not be represented by an attorney prior to judgment.
Discovery shall not be allowed.
a. Appeals. Appeals shall be heard by the Oneida Indian Nation Appellate Court. b. Right to Appeal. Any party who is aggrieved by a decision or order of the Oneida Nation Trial Court may appeal in the manner prescribed by this Rule. c. Time; Notice of Appeal. Except as otherwise provided, within thirty (30) days from receipt of the decision or order the party wishing to appeal must file with the Appellate Court a written notice of appeal specifying the parties to the appeal, a short statement of the reason or grounds for the appeal and a filing fee of $50.00. The clerk shall file the notice and mail copies, to be provided by the appealing party, to all other parties to the appeal at their last known address. d. Parties. The party taking the appeal shall be referred to as the appellant; the other party shall be referred to as the respondent. The name of the case shall be the same as that used by the Trial Court. e. Briefs and Memoranda. Within thirty (30) days of the filing of the Notice of Appeal or within such longer time as the Appellate Court shall allow, the appellant shall file a written brief, memorandum or statement in support of his appeal. An original shall be filed with the clerk and one additional copy shall be served upon or mailed to each other party or his attorney. The respondent shall have twenty (20) days after receipt of the appellant's brief, memorandum or statement within which to file a reply brief, memorandum or statement and shall file and serve such in the same manner as the appellant's brief, memorandum or statement. No other response shall be allowed either party without leave of court. f. Argument. The Court shall decide all cases upon the brief, memoranda and statements filed plus the record of the Trial Court without oral argument unless either party requests oral argument and shows to the court that such will aid the court's decision, or unless the court decides on its own motion to hear oral argument. g. Decision. The Court shall issue a written decision and all judgments on appeal shall be final.
a. Appeals. Appeals shall be heard by the Oneida Indian Nation Trial Court. b. Right to Appeal. Any party who is aggrieved by a decision or order of the Oneida Indian Nation Claims Commission may appeal in the manner prescribed by this Rule. c. Time; Notice of Appeal. Within thirty (30) days from receipt of the decision or order the party wishing to appeal must file with the Trial Court a written notice of appeal specifying the parties to the appeal, a short statement of the reason or grounds for the appeal and a filing fee of $50.00. The clerk shall file the notice and mail copies, to be provided by the appealing party, to all other parties to the appeal at their last known address. d. Parties. The party asking the appeal shall be referred to as the appellant; the other party shall be referred to as the respondent. The name of the case shall be the same as that used by the Claims Commission. e. Briefs and Memoranda. Within thirty (30) days of the filing of the Notice of Appeal or within such longer time as the Trial Court shall allow, the appellant shall file a written brief, memorandum or statement in support of his appeal. An original shall be filed with the clerk and one additional copy shall be served upon or mailed to each other party or his attorney. The respondent shall have twenty (20) days after receipt of the appellant's brief, memorandum or statement within which to file a reply brief, memorandum or statement and shall file and serve such in the same manner as the appellant's brief, memorandum or statement. No other response shall be allowed either party without leave of court. f. Argument. The Court shall decide all cases upon the brief, memoranda and statements filed plus the record of the Claims Commission without oral argument unless either party requests oral argument and shows to the court that such will aid the court's decision, or unless the court decides on its own motion to hear oral argument. g. Standard of Review. The standard of review is whether the decision of the Claims Commissioner was arbitrary and capricious and whether there was a rational basis to support the determination. h. Decision. The Trial Court shall issue a written decision and all judgments on appeal shall be final.
5/1/1997
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