Ordinance
49 - Law & Order Code Title 4
TITLE IV
Civil
Rules of Tribal Court
4.1. SCOPE OF RULES. See Rule 4.2. Commencement of Action; Service
of Process, Pleadings, Motions, And Orders
4.2 ONE FORM OF ACTION. There shall be one form of action to be
known as “civil action.”
4.3 COMMENCEMENT OF ACTION. A civil action is commenced by filing
with the court a complaint signed as required by Rule 4.10.
4.4. PROCESS.
4.4.1
Notice: Issuance: Any person desiring to commence a civil action
shall do so by filing a written complaint with the court, and when such
complaint is so filed, upon payment of a fee, a notice shall issue.
4.4.2.
4.4.2.1
First: The first notice shall notify the defendant to appear in
person, in writing, or by attorney on or before the time and at the
place stated in the notice, which shall not be less than fifteen (15)
days nor in more than thirty (30) days from the date the complaint was
filed.
4.4.2.2 Additional: Upon affidavit of the plaintiff or his attorney
that service of the notice was not perfected, additional notices may
be issued directing the defendant to appear in not less than fifteen
(15) days nor more than thirty (30) days provided that the maximum period
of any return date shall not be more than ninety (90) days from the
date the complaint was filed.
4.4.3 Notice: Form: The notice shall be signed by the judge or clerk
and be substantially in the following form:
TULALIP TRIBAL COURT
| |
) |
|
| Plaintiff, |
) |
Cause
No. ______ |
| |
) |
|
| vs. |
) |
Notice
of Civil Suit |
| |
) |
|
| Defendant. |
) |
|
| ____________________________ |
) |
|
TO: _________________________
(Defendant)
On the
_____ day of ______, 20____, the above-named plaintiff(s) filed a claim
against you, copy of which is attached.
You are
notified to appear in person, in writing, or by attorney on or at any
time before _____ at the office of the clerk of the above-entitled court
at: _____(address of court ) and admit or deny the above claim. If you
deny any part of the claim, then the court clerk will set the case for
trial at a future date.
If you
fail to appear or to answer, judgment will be taken against you by default
as default as demanded in the claim.
Issued:___________
(Name and
address of plaintiff or his attorney)
________________________
(Judge or Clerk)
4.4.4 Notice: By Whom Served. Service of notice and complaint may
be made by any citizen of the State of Washington over the age of eighteen
(18) years and who is competent to be a witness and is not a party to
the action.
4.4.5 Notice: Personal Service. The notice shall be attached to
the complaint and a copy of the notice and complaint shall be served
together upon the defendant at least fourteen (14) days before the return
day stated in the notice, unless service is outside the Tribe’s
territorial jurisdiction, in which case the special notice requirements
specified in the last paragraph of this section shall apply. The plaintiff
shall furnish the person making service with such copies as are necessary.
Personal service shall be made as follows:
4.4.5.1
If the action be against any county in this state, to the county auditor.
4.4.5.2 If against any town or incorporation city in the state,
to the mayor, manager, or clerk thereof.
4.4.5.3 If against a school district, to the clerk thereof.
4.4.5.4 If against a railroad corporation, to any station, freight,
ticket or other agent thereof.
4.4.5.5 If against a corporation owning or operating sleeping
cars, or hotel cars, to any person having charge of any of its cars
or any agent found.
4.4.5.6 If against a domestic insurance company, to any agent
authorize by such company to solicit insurance.
4.4.5.7 If against a foreign or alien insurance company, as provided
in RCW 48.05.200 and 48.05.210; which are adopted herein by this reference
as though set forth in full.
4.4.5.8 If against a company or corporation doing any express
business, to any agent authorized by said company or corporation to
receive and deliver express matters and collect pay therefore.
4.4.5.9 If the suit be against a company or corporation other
than those designated in the preceding subdivisions of this section
to the president or other head of the company or corporation, secretary,
cashier managing agent of the company or corporation or branch or local
office or to the secretary, stenographer or office assistant of such
individuals.
4.4.5.10 If the suit be against a foreign corporation or non-resident
joint stock company, partnership, or association doing business within
this state, to any agent, cashier or secretary thereof.
4.4.5.11 If against minor under the age of fourteen (14) years,
to such minor personally, and also to his father, mother, guardian,
or if there by none within the jurisdiction, then to any person having
the care or control of such minor, or with whom he resides, or in whose
service he is employed, if such there be.
4.4.5.12 In all other cases, to the defendant personally, or
by leaving complaint and notice at the house of his usual abode with
some person of suitable age and discretion then resident therein.
4.4.5.13 In all other cases, to the defendant personally, or
by leaving complaint and notice at the house of his usual abode with
some person suitable are and discretion then resident therein.
4.4.5.14 Whenever any domestic or foreign corporation, which
has been doing business on the Reservation, has been placed in the hands
of a receiver and the receiver is in possession of any of the property
or assets of such corporation, service of all process upon such corporation
may be made upon the receiver thereof. When tribal law authorizes personal
service outside the territorial jurisdiction of the tribal court, the
service, when reasonably calculated to give actual notice, may be made.
4.4.5.15 By personal delivery in the manner prescribed by the
law of the place in which the service is made for service in an action
in any of its courts of general jurisdiction.
4.4.5.16 [Reserved]
4.4.5.17 When outside the State of Washington, by any form of
mail addressed to the person to be served and requiring a signed receipt;
4.4.5.18 As directed by the foreign authority in response to
a letter rogatory; or
4.4.5.19 As directed by the tribal court. The notice served upon
a party outside the tribal court’s territorial jurisdiction shall
be in the same form as that required for notice by publication and shall
require the defendant to appear at time and place certain, which shall
not be less than (30) days from the date of service, if service is made
within the State Washington, and sixty (60) days after personal service
if made outside the State of Washington. Service made in the mode provided
in this Rule 4.4.5 shall be taken and held to be personal service.
4.4.6 Notice: Service by Publication.
4.4.6.1
When the defendant cannot be found within the territorial jurisdiction
of the court, and upon the filing of an affidavit of the plaintiff,
has agent, or attorney, with the court stating that be believes that
the defendant is not a resident of the county of the Reservation, or
cannot be found therein, and that he has deposited a copy of the notice
(substantially in the form prescribed in the rule) and complaint in
the post office, directed to the defendant at his place of residence,
unless it is stated in the affidavit that such residence is not known
to the affiant, and stating the existence of one of the cases hereinafter
specified, the service may be made by publication of the notice by the
plaintiff or his attorney in any of the following cases.
4.4.6.1.1
When the defendant is a foreign corporation, and has property within
the Reservation.
4.4.6.1.2
When the defendant, being a resident of the Reservation, has departed
therefrom with the intent to defraud his creditors, or to avoid the
service of a notice and complaint, or keeps himself concealed therein
with like intent.
4.4.6.1.3
When the defendant is not resident of the Reservation, but has property
therein which has been brought under the control of the court by seizure
or some equivalent act.
4.4.6.1.4
When the subject of the action is personal property in the Reservation,
and the defendant has or claims a lien or interest, actual or contingent,
therein, and the belief demanded consists wholly or partially, in
excluding the defendant from any interest or lien therein.
4.4.6.2 The publication shall be made in a newspaper authorized
to publish a summons in the Superior Court of the State of Washington
for Snohomish County and shall not be published until after the filing
of the complaint. The notice must be subscribed by the judge or clerk,
it shall notify the defendant to appear in person or by attorney on
a date certain, and it shall contain a brief statement of the object
of the action. Said notice shall be published not less than a week for
three (3) weeks prior to the time fixed for the hearing of the cause,
which shall not be less than four (4) weeks from the time of first publication
of such notice; and publication shall be deemed complete on the seventh
day following the last publication. The notice shall be substantially
in the following form:
THE TULALIP COURT
| |
) |
|
| Plaintiff, |
) |
No.
______ |
| |
) |
|
| vs. |
) |
Notice
of Civil Suit |
| |
) |
|
| Defendant |
) |
|
| ____________________________ |
) |
|
TO: _______________________
(Defendant)
On the
___ day of _____, 20____, the above-named plaintiff(s) filed a claim
against you.
You are
notified to appear in person or by attorney on or at any time before
____ at the office of the clerk of the above-entitled court at: _______________(address
of court) and admit or deny the above claim. If you deny any part of
the claim, then the court clerk will set the case for trial at a future
date.
If you
fail to appear or to answer, judgment will be taken against you by default
as demanded by the claim. (Insert here a brief statement of the object
of the action).
Issued
: ___________________
Name and
address of the Plaintiff or his attorney
(Judge
or Clerk)
4.4.6.3 Service by publication alone shall not alone be taken
and held to give the court jurisdiction over the person of the defendant.
By such service, the court only acquires jurisdiction to give a judgment
which is effective as to property or debts attached or garnished in
connection with the suit or other property which properly forms the
basis of jurisdiction of the court. If the defendant appears in a suit
commenced by such service, the court shall have jurisdiction over his
person. The defendant may appear specially and solely to challenge jurisdiction
over property or debts attached or garnished or other property within
the jurisdiction of the court.
4.4.7 Effect of Personal Service Outside Territory Subject to Tribal
Jurisdiction. Personal service of the complaint and notice or other
process may be made upon any party outside the territorial jurisdiction
of the Tribe, in the amount prescribed in section 4.4.5, if upon a member
of the Tribe, or resident of the reservation, or a person or entity
who has submitted to the jurisdiction of the tribal court by any of
the acts specified in section 1.2.4 of this Ordinance, it shall have
the same force and effect of personal service within the tribal court’s
territorial jurisdiction; otherwise, it shall have the force and effect
of service by publication.
4.4.8 Return.
4.4.8.1
The person serving the complaint and notice shall make proof of service
thereof to the court promptly and in any event within the term during
which person served must respond to the notice.
4.4.8.2 Proof of service outside the territorial jurisdiction of
the tribal court may be made by affidavit of the individual who made
the service or in the manner prescribed by the law of the place in which
the service is made for an action in any of its courts of general jurisdiction.
When service is made by mail, proof of service shall include a receipt
signed by the addressee or other evidence of personal delivery to the
addressee satisfactory to the tribal court.
4.4.8.2.1
By his or her affidavit of service endorsed upon or attached to a
copy of the notice.
4.4.8.2.2
If served by publication, the affidavit of the printer, publisher,
foreman, principal clerk or business manager of the newspaper showing
the same, together with a printed copy of the notice as published;
or Proof of Service outside the territorial jurisdiction of the tribal
court may be made by affidavit of the individual who made the service
or in the manner prescribed by the law of the place in which the service
is made for an action in any of its courts of general jurisdiction.
When service is made by mail, proof of service shall include a receipt
signed by the addressee or other evidence of personal delivery to
the addressee satisfactory to the tribal court.
4.4.8.2.3
Written admission of the defendant endorsed upon a copy of the notice.
In case of service otherwise than by publication, the return, affidavit,
or admission must state the time place, and manner of service.
Proof
of service outside the territorial jurisdiction of the tribal court
may be made by affidavit of the individual who made the service or
in the manner prescribed by the law of the place in which the service
is made for an action in any of its courts of general jurisdiction.
When service is made by mail, proof of service shall include a receipt
signed by the addressee or other evidence of personal delivery to
the addressee satisfactory to the tribal court.
4.4.8.3 Costs shall not be awarded and a default judgment shall
not be rendered unless proof of service is on file with the court.
4.4.9 Amendment. At any time in its discretion and upon such
terms as it deems just, the court may allow any process or proof of
service thereof to be amended, unless it clearly appears that material
prejudice would result to the substantial rights of the party against
whom the process issued.
4.5 SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
4.5.1
Service: When Required: Every order required by its terms to be
served, every written pleading subsequent to the original complaint,
every written motion, and every written notice, appearance, demand,
offer or judgment, or other paper shall be served upon all parties,
but no service need be made on parties in default for failure to appear
except that pleadings asserting new or additional claims for relief
against them shall be served upon them in the manner provided for service
of notice and complaint in Rule 4.4.
4.5.2 Same: How Made: Whenever under these rules service of papers
other than the complaint and notice is required or permitted, the rules
governing the manner of service of such papers in the Superior Court
of the State of Washington in and for Snohomish County shall govern.
4.5.3 Filing: When pleading or motions are oral, the substance
of them shall be entered in the records. All papers after the complaint
required to be served upon a party shall be filed with the court either
before service or with in a reasonable time thereafter and a reference
shall be made to them in the record of the court.
4.5.4 Filing With the Court Defined: The filing of pleading and
other papers with the court as required by these rules shall be made
by filing them with the judge or with his authorized clerk and the filing
date shall be noted thereof at the time of filing.
4.6 TIME
4.6.1
Computation: The time within which an act is to be done, as herein
provided, shall be computed by excluding the first day, and including
the last, unless the last day is a holiday or Sunday, and then it is
also excluded.
4.6.2 For Motions - Affidavits: A written motion, other than one
which may be heard ex parte, and notice of the hearing thereof shall
be served not later than 3 days before the time specified for the hearing,
unless a different period is fixed by these rules or by order of the
court. Such an order may, for cause shown, be made on ex parte application.
When a motion is supported by affidavit, the affidavit in any of these
rules, opposing affidavits may be served not later than one (1) day
before the hearing, unless the court permits them to be served at some
other time.
4.7 PLEADING ALLOWED: FORM OF MOTIONS
4.7.1
Pleadings: There shall be a complaint and an answer; and there shall
be a reply to a counterclaim denominated as such; and answer to a cross-claim,
if the answer contains a crossclaims; a third party complaint, if leave
is given under Rule 4.14 to summon person who was not an original party;
and there shall be a third party answer, if a third party complaint
is served. No other pleading shall be allowed.
The complaints,
counterclaims, cross-claims, and third party claims shall be in writing.
A reply to a counterclaim and answers may be written or oral. When pleadings
are oral, the substance of them shall be entered in the docket.
4.7.2 Motions and Other Papers:
4.7.2.1
An application to the court for an order shall be by motion. Motion
need not be in any special form but must be such as to enable a person
of common understanding to know what is intended.
4.7.2.2 The rules applicable to captions, signing, and other
matters of form of written pleadings apply to all written motions and
other papers provided for by there rules.
4.7.3 Demurrers, Pleas, etc., Abolished: Demurrers, pleas, and exceptions
for insufficiency of a pleading shall not be used.
4.8 GENERAL RULES OF PLEADING
4.8.1
Claims for Relief: A complaint, counterclaim, cross-claim, or third
party claim shall contain: (l) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (2) a demand for
judgment for the relief of which he deems himself entitled. Relief in
the alternative or of several different types may be demanded.
4.8.2 Defenses; Form of Denials: A party shall state his defenses,
denials, and objections to each claim asserted against him in any form
which will enable of person of common understanding to know what is
intended. If he is without knowledge or information sufficient to form
a belief as to the truth of an averment, he shall so state and this
has the effect of a denial.
4.8.3 Affirmative Defenses: In a written answer to a complaint,
cross-claim, and in a written reply to a counterclaim, a party shall
set forth affirmatively accord and satisfaction, arbitration and award,
assumption or risk, contributory negligence, discharge in bankruptcy,
duress, estoppel, failure of consideration, fraud, illegality, injury
by fellow servant, laches, license, payment, release, res judicata,
statute of frauds, statute of limitations, waiver, and any other matter
constitution an avoidance or affirmative defense. When a party had mistakenly
designated a defense as a counterclaim or a counterclaim as a defense,
the court on terms, if justice so requires, shall treat the pleading
as if there had been a proper designation.
4.8.4 Effect of Failure to Deny: Statement in a pleading to which
a responsive pleading is required, other then those as to the amount
of damage, are admitted when not denied by responsive pleading. Statements
of an answer to a complaint, cross-claim, or third party complaint,
or a reply to a counterclaim shall be taken as denied or avoided.
4.8.5 Pleading to be Concise and Direct; Consistency:
4.8.5.1
No technical forms of pleadings or motions are required. Pleadings
and motions shall be stated so as to enable a person of common understanding
to know what is intended.
4.8.5.2 A party may set forth two more statement of a claim of
defense alternately or hypothetically, either in one count or defense
or in separate counts or defense or in separate counts or defense. When
two or more statements are made in the alternative and one of them if
made independently would be sufficient, the pleading is not made insufficient
by the insufficiency of one more of the alternative statements. A party
may also state as may separate claims or defenses as he has regardless
of consistency and whether based on legal or on equitable ground or
on both. All statements shall be made subject to the obligations set
forth in Rule 4.10.
4.8.6 Construction of Pleadings: All pleadings shall be so construed
as to do substantial justice.
4.9 FORM OF PLEADINGS
4.9.1
Caption; Names of Parties: Every written pleading shall contain
a caption setting forth the name of the court, the title of the action,
the file number if known to the person signing it, and a designation
as in Rule 4.7.1. In the complaint, the title of the action shall include
the names of all the parties, but in other written pleadings it is sufficient
to state the name of the first party on side with an appropriate indication
of other parties. When the plaintiff is ignorant of the name of the
defendant, it shall be so stated in his pleading, and such defendant
may be designated in any pleading or proceeding by any name, and when
his true name shall be discovered, the pleading or proceeding may be
amended accordingly.
4.9.2 Adoption by Reference Exhibits: 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 any written instrument
which is an exhibit to a pleading is a part thereof for all purposes.
4.9.3 Forms: All notice, pleading, motions, and other papers
filed shall be plainly written or typed.
4.10 VERIFICATION AND SIGNING OR PLEADINGS
4.10.1
Every complaint, answer, or reply shall be verified by the oath of the
party pleading; or if he be not present, by the oath of his attorney
or agent, to the effect that he believes it to be true. The verification
shall be oral, or in writing, in conformity with the pleading verified.
4.10.2 All other pleadings of a party represented by an attorney
shall be signed by at least one attorney of record in his individual
name, whose address shall be stated. A party who is not represented
by an attorney shall sign his pleading and state his address. The signature
of a party or an attorney constitutes a certificate him that he has
read the pleading: that to the best of his knowledge, information, and
belief there is good ground to support it; and that it is not interposed
for delay.
4.11 DEFENSES AND OBJECTIONS - WHEN AND HOW PRESENTED - BY PLEADING
OR MOTION - MOTION FOR JUDGMENT ON PLEADINGS
4.11.1
When Presented: If the answer is oral, a defendant shall make the
oral answer on or before the time he is required to appear in answer
to the notice as indicated in Rule 4.4. If the answer is written, a
defendant shall serve his answer on or before the time he is required
to appear in answer to the notice as indicated in Rule 4.4. A party
served with a pleading stating a cross-claim against him shall answer
thereto on the return date fixed in a notice which shall accompany the
pleading. The plaintiff shall reply to a counterclaim not less than
three (3) days prior to trial. If the court denies a motion permitted
under this rule or postpones its disposition until the trial on the
merits, the court may set the case for trial at the same time and also
fix a time for the responsive pleading. If the court grants a motion
for more definite statement, the court may set the case for trial at
the same time and fix the date for making the more definite statement
and for the responsive pleading to the more definite statement.
4.11.2 How Presented: Every defense, in law or fact, to a claim
for relief in any pleading, whether a claim, counterclaim, cross-claim,
or third party claim, shall be asserted by the responsive pleading thereto,
except that the following defenses may, at the option of the pleader,
be made by motion:
15. lack
of jurisdiction over the subject matter;
16. (2)
lack of jurisdiction over the person;
17. (3)
insufficiency of process;
18. (4)
insufficiency of service of process;
19. (5)
failure to state a claim upon which relief can be granted; and
20. (6)
failure to join an indispensable party. A motion making any of these
defenses shall be made before pleading is permitted. No defense or
objection is waived by being joined with one or more defenses or objections
in a responsive pleading or motion. If a pleading sets forth in a
claim for relief to which the adverse party is not required to serve
a responsive pleading, he may assert at the trial any defense at the
trial any defense in law or fact to the claim for relief. If, on a
motion asserting the defense numbered (5) to dismiss for failure of
the pleading to state a claim upon which relief can be granted, matters
outside the pleading are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment and disposed
of as provided in Rule 4.48, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion
by Rule 4.48 [should be 4.49].
4.11.3 Preliminary Hearings: The defenses specifically enumerated
(1)-(6) in subdivision 4.11.2 of this rule, whether made in a pleading
or by motion, shall be heard and determined before trial on application
of any party, unless the court orders that the hearing and determination
thereof be deferred until the trial.
4.11.4 Motion for More Definite Statement: If a pleading to which
a responsive pleading is permitted (for example, the complaint) is so
vague or ambiguous that a person of common understanding cannot know
what us intended, he may move for a more definite statement before interposing
his responsive pleading. The motion shall point out the defects complained
of and the details desired. If the motion is granted and the order of
the court is not obeyed within 10 days after the order or within such
other time as the court may fix, the court may strike the pleading to
which the motion was directed or make such order as it deems just.
4.11.5 Motion to Strike: Upon motion made by a party not less
than three (3) days prior to trial or upon the court’s own initiative,
at any time the court may order stricken from the complaint any impertinent
or scandalous matter.
4.11.6 Consolidation of Defenses: A party who makes a motion
under this rule may join with it the other motions herein provided for
and then available to him. If a party makes a motion under this rules
and does not include therein all defenses and objections then available
to him which this rule permits to be raised by motions, he shall not
thereafter make a motion based on any of the defenses or objection so
omitted, except as provided in subdivisions 4.11.7 of this rule.
4.11.7 Waiver of Defenses: A party waives all defenses and objections
which he does not present either by motion as herein before provided,
or, if he has made no motion, in his answer or reply, except: (1) that
the defense of failure to state a claim upon which relief can be granted,
the defense of failure to join an indispensable party, and the objection
of failure to state a legal defense to a claim may also be made by a
later pleading, if one is permitted, or by motion for judgment on the
pleadings or at the trial on the merits; and except (2) that whenever
it appears by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court shall dismiss the
action. The objection or defense, if made at the trial, shall be disposed
of as provided in Rule 4.15.2 in the light of any evidence that may
have been received.
4.12 COUNTERCLAIM AND CROSS-CLAIM
4.12.1
Permissive Counterclaims: A pleading may state as a counterclaim
any claim against an opposing party.
4.12.2 Counterclaim Exceeding Opposing Claim: A counterclaim
may or may not diminish or defeat the recovery sought by the opposing
party. It may claim relief exceeding in amount or different in kind
from that sought in the pleading of the opposing party.
4.12.3 Counterclaim Maturing or Acquired After Pleading: A claim
which either matured or was acquired by the pleader after serving his
pleading may, with the permission of the court, be presented as a counterclaim
by supplemental pleading.
4.12.4 Omitted Counterclaim: When a pleader fails to set up a
counterclaim through oversight, inadvertence, or excusable neglect,
or when justice requires, he may, by leave of court, set up the counterclaim
by amendment.
4.12.5 Cross-Claim Against Co-Party: A pleading may state as a cross-claim
and claim by one party against a co-party arising out of the transaction
or occurrence that is the subject matter either of the original action
or of a counterclaim therein or relating to any property that is the
subject matter of the original action. Such cross-claim may include
a claim that the against whom it is asserted is or may be liable to
the cross-claimant for all or part of a claim asserted in the action
against the cross-complainant.
4.12.6 Additional Parties May Be Brought In: When the presence
of parties other then those to the original action is required for the
granting of complete relief in the determination of a counter-claim
or cross-claim, the court shall order them to be brought in as defendants
as provided in these rules, if jurisdiction of them can be obtained.
4.12.7 Separate Trials; Separate Judgment: If the court orders
separate trials as provided in Rule 4.30.1, judgment on a counterclaim
or cross-claim may be rendered in accordance with the terms of Rule
4.30.1, judgment on a counterclaim or cross-claim may be rendered in
accordance with the terms of Rule 4.30.2, even if the claims of the
opposing party have been dismissed or otherwise disposed of.
4.13 SETOFFS AGAINST ASSIGNEES
4.13.1
Setoff Against Assignee: The defendant in a civil action upon a
contract express or implied other the upon a negotiable promissory note
or bill of exchange, negotiated in good faith and without notice before
due which has been assigned to the plaintiff, may set off a demand of
a like nature existing against the person to whom he was originally
liable, or any assignee prior to the plaintiff, of such contract, provided
such demand existed at the time of the assignment thereof, and belonging
to the defendant in good faith, before notice of such assignment, and
was such a demand as might have been set off such assignment, and was
such a demand as might have been set off against such person to whom
he was originally liable, or such assignee while the contract belonged
to him.
4.13.2 Setoff Against Beneficiary of Trust Estate: If the plaintiff
be a trustee to any other, or if the action be in a name of a plaintiff
which has no real interest in the contract upon which the action is
founded, so much of a demand existing against those whom the plaintiff
represents or for whose benefit the action is brought, may be set off
as will satisfy the plaintiff’s debt, if the same might have been
set off in an action brought against those beneficially interested.
4.13.3 Setoff Must Be Pleaded: To entitle a defendant to a setoff
under this rule, he must set forth the same in his answer.
4.14 THIRD PARTY PRACTICE
4.14.1
When Defendant May Bring in Third Party: Before making his answer,
a defendant may move ex parte, or, after answering, on notice to the
plaintiff, for leave as a third party plaintiff to serve a notice and
complaint upon a person not a party to the action who is or may be liable
to him for all or part of the plaintiff’s claim against him. If
the motion is granted and the notice and complaint are served, the person
so served, herein after called the third party defendant, shall make
his defense to the third party plaintiff’s claim as provided in
Rule 4.11 and his counterclaims against the third party plaintiff and
cross-claims against other third party defendants as provided in Rule
4.12. The third party defendant may assert against the plaintiff any
defenses which the third party plaintiff has to plaintiff’s claim.
The third party defendant may also assert any claim against the plaintiff
arising out of the transaction or occurrence that is the subject matter
of the plaintiff’s claim against the third party plaintiff. The
plaintiff may assert any claim against the third party defendant arising
out of the transaction or occurrence that is the subject matter of the
plaintiff’s claim against the third party plaintiff, and the third
party defendant thereupon shall assert his defenses as provided in Rule
4.11. A third party defendant may proceed under this rule against any
person not a party to the action who is or may be liable to him for
all or part of the claim made in the action against the third party
defendant.
4.14.2 When Plaintiff May Bring in Third Party: When a counterclaim
is asserted against a plaintiff, he may cause a third party to be brought
in under circumstances which under this rule would entitle a defendant
to do so.
4.14.3 Tort Cases: This rule shall not be applied, in tort cases,
so as to permit the joinder of a liability or indemnity insurance company,
unless such company is, by statute or contract, directly liable to the
person injured or damaged.
4.15 AMENDED AND SUPPLEMENTAL PLEADINGS
4.15.1
Amendment Prior to Trial: A party may amend a complaint, counterclaim,
crossclaim, or third party complaint once as a matter of course at any
time before a responsive pleading is made, or, if the pleading is an
answer or a reply to a counterclaim, he may so amend it at any time
within twenty (20) days after it is served, provided it is amended prior
to trial. Otherwise, prior to trial, a party may amend his pleading
only by leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires. A party shall
plead in response to an amended pleading within the time remaining for
response to the original pleading or within ten (10) days after service
or notice of the amendment pleading, whichever period may be the longer,
unless the court otherwise orders.
4.15.2 Amendment At or After the Trial: When issue not raised
by the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in
the pleadings. Such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may
be made upon motion of any party at any time, even after judgment; but
failure to do so amend does not affect the result of the trial of these
issues.
If the
evidence is objected to at the trial on the ground that it is not within
the issues made by the pleadings, the court may allow the pleadings
to be amended and shall do so freely when the presentation of the merits
of the action will be subserved thereby and the objecting party fails
to satisfy the court that the admission of such evidence would prejudice
him in maintaining his action or defense upon the merits. The court
may grant a continuance to enable the objecting party to meet such evidence.
4.15.3 Relating Back to Amendment: Whenever the claim or defense
asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the original pleading,
the amendment relates back to the date of the original pleading.
4.15.4 Supplemental Pleadings: Upon motion of a party, the court
may upon reasonable notice and upon such terms as are just, permit him
to serve or make a supplemental pleading setting forth transactions
or occurrences or events which have happened since the date of the pleading
sought to be supplemented. If the court deems it advisable that the
adverse party plead thereto, it shall so order, specifying the time
therefore.
4.15.5 Interlineations: No amendments shall be made to any pleading
by erasing or adding words to the original on file, except by permission
of the court.
4.16 GARNISHMENTS: Garnishments are governed by the revised Code
of Washington, chapter 7.33 et seq., which are adopted herein by this
reference as though set forth in full; provided, that judges or their
clerks may issue writs of garnishment in accordance with the provisions
therein.
4.17 PARTIES PLAINTIFF AND DEFENDANT; CAPACITY.
4.17.1
Real Party in Interest: Every action shall be prosecuted in the
name of the real party in interest; but an executor, administrator,
guardian, 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.
4.17.2 Infants or Incompetent Persons:
4.17.2.1
When an infant is a party he shall appear by guardian, or if he has
no guardian, or in the opinion of the court the guardian is an improper
person, the court shall appoint a guardian ad litem. The guardian shall
be appointed:
4.17.2.1.1
When the infant is plaintiff, upon the application of the infant,
if he be of the age of fourteen (14) years, or it under the age, upon
the application of a relative or friend of the infant.
4.17.2.1.2
When the infant is defendant, upon the application of the infant,
if he be of the age of fourteen (14) years, and applies within the
time he is to appear; if he be under the age of fourteen (14) years,
or neglects to apply, then upon the application of any other party
to the action, or of a relative or friend of the infant.
4.17.2.2 When an insane person is a party to an action he shall
appear by guardian, or if he has no guardian, or in the opinion of the
court the guardian is an improper person, the court shall appoint one
to act as guardian ad litem. Said guardian shall be appointed.
4.17.2.2.1
When the insane person is plaintiff, upon the application of a relative
or friend of the insane person.
4.17.2.2.2
When the insane person is defendant, upon the application of a relative
or friend of such insane person, such application shall be made within
the time he is to appear. If no such application be made within the
time above limited, application may be made by any party to the action.
4.18 JOINDER OF CLAIMS AND REMEDIES.
4.18.1
Joinder of Claims: The plaintiff, in his complaint or in reply setting
forth a counterclaim, and the defendant in an answer setting forth a
counterclaim may join either as independent or as alternative claims
as many claims, either legal or equitable, or both, as he may have against
an opposing party. There may be a like joinder of claims when there
are multiple parties if the requirements of Rules 4.19, 4.20, and 4.22
are satisfied. There may be a like joinder of cross-claims or third
party claims if the requirements of Rules 4.12 and 4.14 are satisfied.
There may be a like joinder or cross-claims or third party claims if
the requirements of Rules 4.12 and 4.14, respectively, are satisfied.
4.18.2 Joinder of Remedies: Whenever a claim is one heretofore
recognizable only after another claim has been prosecuted to a conclusion,
the two claims may be joined in a single action; but the court shall
grant relief in that action only in accordance with the relative substantive
rights of the parties.
4.19 NECESSARY JOINDER OF PARTIES
4.19.1
Necessary Joinder: Subject to the provisions of subdivision 4.19.2
of this rule, persons having a joint interest shall be made parties
and be joined on the same side as plaintiffs or defendants. When a person
who should join as a plaintiff reuses to do so, he may be made a defendant.
4.19.2 Effective of Failure to Join: When persons who are not
indispensable but who ought to be parties if complete relief is to be
accordance between those already parties, have not been made parties
and are subject to the jurisdiction of the court as to both services
of process and venue, the court shall order them summoned to appear
in the action. The court, in its discretion, may proceed in the action
without making such persons parties, if its jurisdiction over them as
to either service of process or venue can be acquired only by their
consent or voluntary appearance; but the judgment rendered therein does
not affect the rights or liabilities of absent persons.
4.19.3 Said: Names of Omitted Persons and Reasons for Non-joinder
to be Pleaded: In any pleading in which relief is asked, the pleader
shall set forth the names, if known to him, or persons who ought to
be parties if complete relief is to be accorded between those already
parties, but who are not joined, and shall state why they are omitted.
4.20 PERMISSIVE JOINDER OF PARTIES
4.20.1
Permission Joinder: All persons may join in one action as plaintiffs
if they assert any right to relief jointly, severally, or in the alternative
in respect of or arising out of the same transaction, occurrence, or
series of transactions or occurrences, and if any question of law or
fact common to all of them will arise in the action. All persons may
be joined in one action as defendants if there is asserted against them
jointly, severally, or in the alternative, any right to relief in respect
of or arising out of the same transaction, occurrence, or series of
transactions or occurrences, and if any questions of law or fact common
to all of them will arise in the action. A plaintiff or defendant need
not be interested in obtaining or defending against all the relief demanded.
Judgment may be given for one or more of the plaintiffs according to
their respective rights to relief, and against one or more defendants
according to their respective liabilities.
4.20.2 Separate Trials: The court may make such orders as will
prevent a party from being embarrassed, delayed, or put to expense by
the inclusion of a party against whom he assets no claim and who asserts
no claim against him, and may order separate trials or make other orders
to prevent delay or prejudice.
4.21 MISJOINDER AND NONJOINDER OF PARTIES: Misjoinder of parties
is not ground for dismissal of an action. Parties may be dropped or
added by order of the court on motion of any party or of its own initiative
at any stage of the action and on such terms as are just. Any claim
against a party may be severed and proceeded with separately.
4.22 INTERPLEADER: Persons having claims against the plaintiff may
be joined as defendants and requires to interplead when their claims
are such that the plaintiff is or may be exposed to double or multiple
liability. It is not ground for objection to the joinder that the claims
of the several claimants or the titles on which their claims depend
do not have a common origin or are not identical but are adverse to
and independent of one another, or that the plaintiff avers that he
is not liable in whole or in part to any or all of the claimants. A
defendant exposed to similar liability may obtain such interpleader
by way of cross-claim or counterclaim. The provisions of this rule supplement
and do not in any way limit the joinder of parties permitted under other
rules and statutes.
4.23 INTERVENTION
4.23.1
Intervention of Right: Upon timely application, anyone shall be
permitted to intervene in an action: (1) when a ordinance confers an
unconditional right to intervene; or (2) when the representation of
the application interest by existing parties is or may be inadequate
and the applicant is or may be bound by a judgment in the action; or
(3) when the applicant is so situated as to be adversely affected by
a distribution or other disposition of property which is in the custody
or subject to the control or disposition of the court.
4.23.2 Permissive Intervention: Upon timely application, anyone
may be permitted to intervene in an action: (1) when a ordinance confers
a conditional right to intervene: or (2) when an applicant’s claim
or defense and the main action have a question of law or fact in common.
In exercising its discretion, the court shall consider whether the intervention
will unduly delay or prejudice the adjudication of the rights of the
original parties.
4.23.3 Procedure: A person desiring to intervene shall serve
a motion to intervene upon all parties affected thereby. The motion
shall state the ground therefore and shall be accompanied by a pleading
setting forth the claim or defense for which intervention is sought.
4.24 SUBSTITUTION OF PARTIES
4.24.1
Death.
4.24.1.1
If a party dies and the claim is not thereby extinguished, the court
may order substitution of the proper parties. The motion for substitution
may be the successors or representatives of the deceased party or
by any party, and together with the notice of hearing, shall be served
on the parties as provided by statute for service of notices, and
upon persons not parties in the manner provided by these rules for
the service of notice and complaint. If substitution is not made within
a reasonable time, the action may be dismissed as to the deceased
party.
4.24.1.2
In event of the death of one or more of the plaintiffs or one or more
of the defendants in an action in which the right sought to be enforced
survives only to the surviving plaintiffs or only against the surviving
defendants, the action does not abate. The fact of death shall be
noted in the docket and the action shall proceed in favor of or against
the surviving parties.
4.24.2 Incompetency: If a party becomes incompetent, the court,
upon motion served as provided in subdivision 4.24.1 of this rule, may
allow the action to be continued by or continued by or against his representative.
4.24.3 Transfer of Interest: In case of any transfer of interest,
the action may be continued by or against the original party unless
the court, upon motion, directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party. Service
of the motion shall be made as provided in subdivision 4.24.1 of this
rule.
4.25 DEPOSITIONS AND INTERROGATORIES PENDING ACTION: The taking
of depositions or the requesting of admissions, the propounding of interrogatories
and other discovery procedures may be available to a party only upon
obtaining prior permission of the court. The court shall have absolute
discretion to decide whether to permit any such procedures. In exercising
such discretion, the court shall consider: (1) whether all parties are
represented by counsel; (2) whether delay in bringing the case to trial
will result; and (3) whether the interests of justice will be promoted.
4.26 JURY TRIAL
4.26.1
Demand and Selection: After the appearance of the defendant, and
before court shall proceed to inquire into the merits of the cause,
either party may demand a jury to try the action.
4.27 TRIAL BY JURY OR BY THE COURT
4.27.1
By Jury: In a civil case, when a jury is demanded, it shall be allowed
and tried with all reasonable speed. All issues of fact shall be tried
by the jury.
4.27.2 By the Court: All questions of law including the admissibility
of testimony, the fact preliminary to such admission, and the construction
of statutes and other writings, and other rules of evidence, are to
be decided by the judge, and all discussions of law addressed to him.
4.28 ASSIGNMENT OF CASES FOR TRIAL - JUDGE, DISQUALIFICATION
4.28.1
Assignment for Trial: When the pleading of the parties have taken
place, a case shall be tried, but cases may be continued by the court
to a date certain. Continuances may not be granted for a longer period
than sixty (60) days each.
4.28.2 Disqualification: In any case pending in any court of
limited jurisdiction, unless otherwise provided by law, the judge thereof
shall be deemed disqualified to hear and try the case when he is in
anyway interested or prejudiced. The judge, of his own initiative, may
enter an order disqualifying himself; and he shall also disqualify himself
under the provisions of this rule if, before the jury is sworn of the
trial is commenced, a party files an affidavit that such party cannot
have a fair and impartial trial by reason of the interest of prejudice
of the judge or for other ground provided by law. Only one such affidavit
shall be filed by the same party in the case and such affidavit shall
be made as to only one of the judges of said court.
All rights
to an affidavits of prejudice will be considered waived where filed
more than ten (10) days after the case is set for trial, unless the
affidavit alleges a particular incident, conversation, or utterance
by the judge, which was not known to the party or his attorney within
the ten (10) day period. In multiple judge courts, or where a pro tem
or visiting judge is designated as the trial judge, the 10-day period
shall commence on the date that the defendant or his attorney has actual
notice of assignment or reassignment to a designated trial judge.
4.29 DISMISSAL OF ACTIONS
4.29.1
Without Prejudice: Judgment that the action be dismissed, without
prejudice to a new action, may be entered, with costs, in the following
cases:
4.29.1.1
When the plaintiff voluntarily dismissed the action before it is finally
submitted.
4.29.1.2
When plaintiff fails to appear at the time set for trial or other
hearing.
4.29.2 Limitation: If a counterclaim has been pleaded by defendant,
the action shall not be dismissed against defendant’s objection
unless the counterclaim can remain pending for independent adjudication
by the court.
4.29.3 Counterclaims, etc.: The provisions of this rule apply
to the dismissal of any counterclaim, set-off, cross-claim, or third
party claim.
Rule 4.30 CONSOLIDATION; SEPARATE TRIALS
4.30.1
Consolidation: When actions involving a common question of law or
fact are pending before the court, it may order a joint hearing or trial
or any or all the matters in issue in the actions; it may order all
the actions consolidated; and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.
4.30.2 Separate Trials: The court, in furtherance of convenience
or to avoid prejudice, may order a separate trial of any claim, cross-claim,
counterclaim, or third part claim, or of any separate issue or of any
number or claims, cross-claims, counterclaims, third party claims, or
issues.
Rule 4.31 TAKING OF TESTIMONY
4.31.1
Form: In all trials, the testimony of witnesses shall be taken orally
in open court, unless otherwise provided by rule or statute.
4.31.2 Multiple Examinations: When two or more attorneys are
upon the same side trying a case, the attorney conducting the examination
of a witness shall continue until the witness is excused from the stand;
and all objections and offers of proof made during the examination of
such witness shall be made or announced by the examination of such witness
shall be made or announced by the attorney who is conducting the examination
or cross-examination.
4.31.3 Affirmation in Lieu in Oath: Whenever under these rules
an oath is required to be taken, a solemn affirmation may be accepted
in lieu thereof.
4.31.4 Adverse Party as Witness:
4.31.4.1
Party or Managing Agent as Adverse Witness: A party, or any who,
at the time of the notice, is an officer, director, or other managing
agent (herein collectively referred to as “managing agent”)
of a public or private corporation, partnership or association which
is a party to an action or proceeding may be examined at the instance
of any adverse party. Attendance of such deponent or witness may be
compelled solely by notice (in lieu of subpoena) given to opposing
counsel of record. Notices for the attendance of a party or a managing
agent at the trial shall be given a reasonable time before the trial
of not less than ten (10) days (exclusive of the day of service, Saturdays,
Sundays, and court holidays). For good cause shown, the court may
make orders for the protection of the party or managing agent to be
examined.
4.31.4.2
Effect of Discovery, etc.: A party who has filed interrogatories
to be answered by the adverse party or who has taken the deposition
of an adverse party or of the managing agent of an adverse party shall
not be precluded for that reason from examining such adverse party
or managing agent at the trial. The testimony of an adverse party
or managing agent at the trial or on deposition or interrogatories
shall not bind his adversary but may be rebutted.
4.31.4.3
Refusal to Attend and Testify - Penalties: If a party or managing
agent refuses to attend and testify before the officer designated
to take his deposition or at the trial after notice served, the complaint,
answer, or reply of the party may be stricken and judgment taken against
taken against the party, and the contumacious party or managing agent
may also be proceeded, against as in other cases of contempt. This
rule shall not be construed:
1.
to compel any person to answer any question where such answer any
question where such answer might tend to incriminate him; or
2.
to prevent a party from using a subpoena to compel the attendance
of any party of managing agent to give testimony by deposition or
at the trial; or
3.
to limit the applicability of any other sanctions or penalties.
4.31.5 Attorneys as Witnesses: If any attorney offers himself
as a witness on behalf of him client and gives evidence on the merits,
he shall not argue the case to the jury, unless by permission of the
court.
4.32 PROOF OF OFFICIAL RECORD
4.32.1
Authentication of Copy: An official record or an entry therein,
when admissible for any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal custody
of the record, or by his deputy, and accompanied with a certificate
that such officer has the custody. If the office in which the record
is kept is within the United States or within a territory or insular
possession subject to the dominion of the United States, the certificate
may be made by a judge of a court of record of the district or political
subdivision in which the record is kept, authenticated by the seal of
the court, or may be made by any public officer having a seal of office
and having official duties in the district or political subdivision
in which the record is kept, authenticated by the seal of his office.
If the office in which the record is kept is in a foreign state or country,
the certificate may be made by a secretary of embassy or legation, consul
general, consul, vice-chairman, or consular agent or by any officer
in the foreign service of the United States stationed in the foreign
state or country in which the record is kept, and authenticated by the
seal of his office.
4.32.2 Proof of Lack of Record: A written statement signed by an
officer having the custody of an official record or by his deputy that
after diligent search no record or entry of a specified tenor is found
to exist in the records of his office, accompanied by a certificate
as above provided, is admissible as evidence that the records of his
office contain no such record or entry.
4.32.3 Other Proof: This rule does not prevent the proof of official
records or of entry or lack of entry therein by any method authorized
by an applicable statute, or by the rules of evidence at common law.
4.33 SUBPOENA. Subpoenas are governed by Title I, Section 1.9; PROVIDED,
that subpoenas may be issued with like effect by the attorney of record
of the party to the action in whose behalf the witness is required to
appear, and the form of such subpoena in each case shall be the same
as when issued by the court except that it shall only be subscribed
by the signature of such attorney.
4.34 INSTRUCTIONS TO JURY; OBJECTION. At the close of the evidence,
the court, on its own motion, or on the request of either party, shall
instruct the jury on the law either orally or in writing, or both. Any
party may file written request that the court instruct the jury. At
the same time, copies of requested instructions shall be furnished to
adverse parties. The court need not grant any requested instruction
if the matter is fairly covered by the instruction given. The court
shall not instruct with respect to matters of fact or comment upon the
evidence.
4.35 FINDINGS BY THE COURT. If a jury trial is not demanded,
the judge shall hear the evidence and decide all questions of fact and
law, and render judgment accordingly. He is not required to make findings
of fact or conclusions of law.
4.36 JUDGMENTS; COSTS
4.36.1
Definition - Form: “Judgment,” as used in these rules,
includes a decree and any final order from which an appeal lies. A judgment
shall not contain a recital of pleadings or the record of prior proceedings.
Judgments may be in a writing signed by the court or may be oral confirmed
by an entry in the record.
4.36.2 Judgment Upon Multiple Claims: When more than one claim
for relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third party claim, the court may direct the entry of
a final judgment upon one or more, but less than all, of the claims
only upon an express determination that there is no just reason for
delay, and upon an express direction for the entry of judgment. In the
absence of such determination and direction, any order or other form
of decisions, however designated, which adjudicates less then all the
claims, shall not terminate the action as to any of the claims, and
the order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims.
4.36.3 Demand for Judgment: A judgment by default shall not be
different in kind from or exceed in amount as that prayed for in the
demand for judgment.
4.37 DEFAULT
4.37.1
Judgment: When the defendant fails to appear and plead before or
at the time specified in the notice, or within one (1) hour thereafter,
or upon continuance, or for trial, judgment shall be given on motion
of the plaintiff, if the motion includes a statement of the basis for
venue in the action and it does not clearly appear to the court from
the papers on file that venue is improper, as follows: When the defendant
has been served with a true copy of the complaint, judgment shall be
given upon proof satisfactory to the court. In those cases where interest
and attorney fees are claimed by virtue of a written instrument, a copy
of said instrument shall be filed and the court shall set a reasonable
attorney’s fee. The court shall notify the defendant of the entry
of a default judgment by mailing a copy of the order and judgment to
the defendant at his last known address within five (5) days after entry
of the judgment.
4.37.2 Setting Aside Default:
4.37.2.1
For good cause shown and upon such terms as the court deems just,
the court may set aside an entry of default. No court shall issue
a transcript or pay out or turn over money or property received by
the court by virtue of any default judgment until the expiration of
twenty (20) days from entry of the judgment.
4.37.2.2
Nothing herein contained shall limit the power of the court to set
aside a judgment, at any time, where the court lacked jurisdiction
to enter the judgment.
4.37.3 Plaintiffs, Counter claimants, Cross-Claimants: The provisions
of this rule apply whether the party entitled to the judgment by default
is a plaintiff, a third party plaintiff, or a party who has pleaded
a cross-claim or counterclaim.
4.38 ENTRY OF JUDGMENT. Upon the verdict of a jury, the court shall
immediately render judgment thereon. If the trial is by the judge, judgment
shall be entered immediately after the close of the trial, unless he
reserves his decision, in which event, the trial shall be continued
to a day certain, but not longer then 15 days.
4.38A Enforcement of Certain Judgments of Courts Other than the Tulalip
Tribal Court
4.38A.1
Recognition, implementation and enforcement of orders, judgments and
/ or decrees from courts other than the Tulalip Tribal Court shall
be allowed in accordance with this code if it has been registered
with the Tulalip Tribal Court by filing a certified copy of the order,
judgment and/or decree with the Tribal Court Clerk, paying any necessary
filing fee established by the Clerk, and obtaining service on the
judgment debtor or nonprevailing party in accordance with the provisions
of this code.
4.38A.2
Any party to such a foreign order, judgment and / or decree registered
with the Tribal Court may, within thirty (30) days of the service
of such order, judgment and / or decree upon the other party, apply
for hearing on the order, judgment and / or decree before the Tribal
Court. Upon such application, the Tribal Court shall hold a hearing
to determine the validity of such order, judgment and / or decree
and shall consider issues raising by the other party including, but
not limited to, the jurisdiction of the foreign court and whether
such order, judgment and / or decree is contrary to laws, both written
and customary, of the Tulalip Tribes of Washington.
4.38A.3
The provisions of this Section 4.38A shall not be construed to waive
the immunity of the Tulalip Tribes, its Board of Directors, its agencies,
enterprises, chartered organizations, corporations, or entities of
any kind, and its officers, employees, agents, contractors and attorneys,
in the performance of their duties, shall be immune from suit; except
where the immunity of the Tribes or its officers and employees is
expressly, specifically and unequivocally waived by and in a Tulalip
tribal or federal statute, a duly-executed contract approved by the
Tulalip Board of Directors, or a duly enacted ordinance or resolution
of the Tulalip Board of Directors.
4.38A.4
Enforcement of foreign orders, judgments and/or decrees when so ordered
by the Tulalip Tribal Court shall only be permitted using enforcement
and execution processes of this code.
4.39 RELIEF FROM JUDGMENT OR ORDER
4.39.1
Clerical Mistakes: Clerical mistakes in judgments, orders, or other
parts of the record and errors therein arising from oversight of 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, if any, as the court
orders.
4.39.2 Mistakes, Inadvertence, Excusable Neglect, Newly Discovered Evidence,
Fraud, etc.: On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final judgment,
order, or proceeding for the following reasons:
4.39.2.1
Mistakes, inadvertence, surprise, excusable neglect or irregularity
in obtaining a judgment or order.
4.39.2.2
For erroneous proceedings against a minor or person of unsound mind,
when the condition of such defendant does not appear in the record,
not the error in the proceedings.
4.39.2.3
Venue is improper and the judgment or order has been entered by default.
4.39.2.4
Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party.
4.39.2.5
The judgment is void.
4.39.2.6
The judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated.
4.39.2.7
If the defendant was served by publication relief may be granted as
prescribed in RCW 4.48.200; which are adopted herein by this reference
as though set forth in full.
4.39.2.8
Death of one the parties before the judgment in the action.
4.39.2.9
Unavoidable casualty or misfortune preventing the party from prosecuting
or defending.
4.39.2.10
Error in judgment shown by a minor, within 12 months after arriving
at full age.
4.39.2.11
Any other reason justifying relief from the operation of the judgment.
4.39.3 Motion: The motion shall be made within a reasonable time,
and for reasons (1), (2), or (3) of section 4.39.2 not more than one
(1) year after the judgment, order, or proceeding was entered or taken.
If the party entitled to relief is a minor or a person of unsound mind,
the motion shall be made within one (1) year after the disability ceases.
A motion under section 4.39.2 does not after the disability cease. A
motion under section 4.39.2 does not affect the finality of the judgment
or suspend its operation.
4.40 STAY OF PROCEEDING TO ENFORCE A JUDGMENT. When the court
has ordered a final judgment on some but not all the claims presented
in the action, under the conditions stated in Rule 4.36.2, the court
may stay enforcement of the judgment until the entering of a subsequent
judgment of judgments and may prescribe such conditions as are necessary
to secure the benefit thereof to the party in whose favor the judgment
is entered.
4.41 GARNISHMENT. [Reserved]
4.42 OFFER OF JUDGMENT. At any time more than five (5) days before
trial begins, a party defending against a claim may serve upon the adverse
party an offer to allow judgment to be taken against him from the money
or property or the effect specified in his offer, with costs then accrued.
If within five (5) days after the service of the offer the adverse party
serves written notice that the offer is accepted, either party may then
file the offer and notice of acceptance, together with proof of service
thereof, and thereupon the court shall enter judgment. An offer not
accepted shall be deemed withdrawn and evidence thereof is not admissible
except in a proceeding to determine costs. If the judgment finally obtained
by the offeree is not more favorable than the offer, the offeree must
pay the cost incurred after the making of the offer. The fact that an
offer is made but not accepted does not preclude a subsequent offer.
4.43 APPEAL TO APPELLATE COURT
4.43.1
When and How Taken: An appeal shall be taken by serving a copy of
notice of appeal on the adverse party or his attorney, and filing, within
twenty (20) days after the judgment is rendered or decision made, the
original notice of appeal with acknowledgment or affidavit of service
in the trial court, and, unless such appeal be the Tulalip Tribes of
Washington, filing a bond or undertaking, as herein provided. No appeal,
except when such appeal is by the Tulalip Tribes of Washington, shall
be allowed in any case unless a bond or undertaking shall be executed
on the part of the appellant and filed with and approved by the court
of limited jurisdiction with one or more sureties, in the sum of ONE
HUNDRED DOLLARS ($100), conditioned that the appellant will pay all
costs that may be awarded against him on appeal; or if a stay or proceedings
in the trial court be claimed, except by the Tulalip Tribes of Washington,
a bond or undertaking with two or more personal sureties, or a surety
company as surety, to be approved by the trial court, in a sum equal
to twice the amount of the judgment and costs, conditioned that the
appellant will pay such judgment, including costs, as may be rendered
against him on appeal, be so executed and filed.
4.43.2 Stay of Proceedings: Upon appeal being taken and a bong
filed to stay all proceedings, the trial court shall allow the same
and make an entry of such allowance and all further proceedings on the
judgment in such court shall thereupon be suspended; and, if in the
meantime, execution shall have been issued, such court shall give the
appellant a certificate that such appeal has been allowed.
4.43.3 Release of Property Taken on Execution: On such certificate
being presented to the officer holding the execution, he shall forthwith
release the property of the judgment debtor that may have been taken
on execution.
4.43.4 No Dismissal for Defective Bond: No appeal from a court
shall be dismissed on account of any defect in the bond on appeal, if
the appellant, before the motion is determined, shall execute and file
in the Appellate Court such bond as he should have executed at the time
of taking the appeal, and pay all costs that may have accrued by reason
of such defect.
4.43.5 Judgment Against Appellant and Sureties: In all cases
of appeal, if on the trial anew in such court, the judgment be against
the appellant in whole or in part, such judgment shall be rendered against
him and his sureties on the bond on appeal.
4.44 RECORD ON APPEAL TO APPELLATE COURT.
4.44.1
Transcript; Procedure in Appellate Court; Pleadings in Appellate Court:
Within ten (10) days after the appeal has been taken in a civil action
or proceeding, the appellant shall file with the clerk of the Appellate
Court a transcript of all entries made in the docket of the trial court
relating to the case, together with all the process and other papers
relating to the case filed in the trial court which shall be made and
certified by such other to be correct upon the payment of the fees allowed
by law therefore, and upon the filing of such transcript and Appellate
Court shall become possessed of the cause, and shall proceed in the
same manner, as near as may be, as in actions originally commenced in
that court, except as provided in these rules. The issue before the
trial court shall be tried in the Appellate Court without other or new
pleadings, unless otherwise directed by the Appellate Court.
4.44.2 [reserved]
4.44.3 [reserved]
4.44.4 Transcript; Procedure on Failure to Make and Certify; Amendment:
If, upon an appeal being taken, the trial court fails, neglects, or
refuses, upon the tender or payment of the fees allowed by law, to make
and certify the transcript, the appellant may make application, supported
by affidavit, to the Appellate Court and the court shall issue an order
directing the trial court to make and certify such transcript upon the
payment of such fees. Whenever it appears to the satisfaction of the
Appellate Court that the return of the trial court to such order is
substantially erroneous or defective, it may order the trial court to
amend the same. If the judge of the trial court fails, neglects, or
refuses to comply with any order issued under the provisions of this
section, he may be cited and punished for contempt of court.
4.45 ADMINISTRATION OF OATH. The oaths or affirmations of all witnesses:
4.45.1
Shall be administered by the judge;
4.45.2
Shall be administered to each witness on coming to the stand, not
to a group and in advance; and
4.45.3
The witness shall stand while the oath or affirmation is pronounced.
4.46 JURISDICTION AND VENUE – JURISDICTION AND VENUE SHALL BE
THAT AS SET FORTH IN TITLE I, SECTION 1.2.
4.47 TITLE. These rules may be known and cited as Civil Rules
for Courts of Limited Jurisdiction may they may be referred to as Civil
Rules of Tribal Court.
4.48 EFFECTIVE DATE [Reserved]
4.49 SUMMARY JUDGMENT
4.49.1
For Claimant: A party seeking to recover upon a claim, counterclaim,
or cross-claim may, at any time after the expiration of the period within
which the defendant is required to appear, or after service of a motion
for summary judgment by the adverse party, in his favor upon all or
any part thereof.
4.49.2 For Defending Party: A party against whom a claim, counterclaim,
or cross-claim is asserted may, at any time, move with or without supporting
affidavits for a summary judgment in his favor as to all or any part
thereof.
4.49.3 Motion and Proceedings: The motion shall be served at
least 10 days before the time fixed for the hearing. The adverse party
prior to the day of hearing may serve opposing affidavits. The judgment
sought shall be rendered forthwith if the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. A summary judgment,
interlocutory in character, may be rendered on the issue of liability
alone, although there is no genuine issue as to the amount of damages.
4.49.4 Case Not Fully Adjudicated on Motion: If on motion under
the rule judgment is not rendered upon the whole case or for all the
relief asked and a trial is necessary, the court, at the hearing of
the motion, by examining the pleadings and the evidence before it and
by interrogating counsel, shall, if practicable, ascertain what material
facts exist without substantial controversy and what material facts
are actually and in good faith controverted. It shall thereupon make
an order specifying the facts that appear without substantial controversy,
including the extent to which the amount of damages or other relief
is not controversy, and directing such further proceedings in the action
as are just. Upon the trial of the action, the fact so specified shall
be deemed established, and the trial shall be conducted accordingly.
4.49.5 Form of Affidavits; Further Testimony; Defense Required:
Supporting and opposing affidavit shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith.
The court may permit affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or further affidavits. When a motion for
summary judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judgment, if appropriate,
shall be entered against him.
4.49.6 When Affidavits are Unavailable: Should it appear from
the affidavits of a party opposing the motion that he cannot, for reasons
stated, present by affidavit facts essential to justify his opposition,
the court may refuse the application for judgment or may order a continuance
to permit affidavits to be obtained or deposition to be taken or discovery
to be had or may make such other order as is just.
4.49.7 Affidavits Made in Bad Faith: Should it appear to the
satisfaction of the court at any time that any of the affidavits presented
pursuant to this rule are presented in bad faith or solely for the purpose
of delay, the court shall forthwith order the party employing them to
pay to the other party the amount of the reasonable expenses which the
filing of the affidavits caused him to incur, including reasonable attorney’s
fees, and any offending party or attorney may be adjudged guilty of
contempt.
4.50. [Reserved].
4.51 ARBITRATION
4.51.1
Arbitration Authorized. Two or more parties may agree in writing
to submit to arbitration, in conformity with the provisions of this
section, any controversy which may be the subject of an action existing
between them at the time of the agreement to submit, or they may include
in a written agreement a provision to settle by arbitration any controversy
thereafter arising between them out of or in relation to such agreement.
Such agreement shall be valid, enforceable and irrevocable save upon
such grounds as exist in law or equity for the revocation of any agreement.
4.51.2 Application in Writing — How Heard — Jurisdiction.
Any application made under authority of this section shall be made in
writing and heard in a summary way in the manner and upon the notice
provided by law or rules of court for the making and hearing of motions
or petitions, except as otherwise herein expressly provided. Jurisdiction
under this section is specifically conferred on the Tulalip Tribal Court,
subject to jurisdictional limitations.
4.51.3 Stay of Action Pending Arbitration. If any action for
legal or equitable relief or other proceedings be brought by any party
to a written agreement to arbitrate, the court in which such action
or proceeding is pending, upon being satisfied that any issue involved
in such action or proceeding is referable to arbitration under such
agreement, shall, on motion of any party to the arbitration agreement,
stay the action or proceeding until an arbitration has been had been
had in accordance with agreement.
4.51.4 Motion to Compel Arbitration — Notice and Hearing —
Motion for Stay.
1. A
party to written agreement for arbitration claiming the neglect or
refusal of another to proceed with an arbitration thereunder may make
application to the court for an order directing the parties to proceed
with the arbitration in accordance with their agreement. Eight days
notice in writing of such application shall be served upon the party
alleged to be in default. Service thereof shall be made in the manner
provided by law for service of a summons or notice in a civil action
in the court specified in Section 4.51.2. If the court is satisfied
after hearing the parties that no substantial issue exists as to the
existence or validity of the agreement to arbitrate or the failure
to comply therewith, the court shall make an order directing the parties
to proceed to arbitrate in accordance with the terms of the agreement.
2. If
the court shall find that a substantial issue is raised as to the
existence or validity of the arbitration agreement or the failure
to comply therewith, the court shall proceed immediately to the tribal
of such issue. If upon such trial the court finds that no written
agreement providing for arbitration was made or that there is no default
in proceeding thereunder, the motion to compel arbitration shall be
denied.
3. In
order to raise an issue as to the existence or validity of the arbitration
agreement or the failure to comply therewith, a party must set forth
evidentiary facts raising such issue and must either (a) make a motion
for a stay of the arbitration. If a notice of intention to arbitrate
has been served as provided in Section 4.51.6, notice of the motion
for the stay must be served with (20) twenty days after service of
said notice. Any issue regarding the validity or existence of agreement
or failure to comply therewith shall be tried in the same manner as
provided in subsection (2) hereunder; or (b) by contesting a motion
to compel arbitration as provided under subsection (1) of this section.
4.51.5 Appointment of Arbitrators by Court. Upon the application
of any party to the arbitration agreement, and upon notice to the other
parties thereto, the court shall appoint an arbitrator, or arbitrators,
in any of the following cases:
1. When
the arbitration agreement does not prescribe a method for the appointment
of arbitrators.
2. When
the arbitration agreement does not prescribe a method for the appointment
of arbitrators, and the arbitrators, or any of them, have not been
appointed and the time within which they should have been appointed
has expired.
3. When
any arbitrator fails or is otherwise unable to act, and his successor
has not been duly appointed.
4. In
any of the foregoing cases where the arbitration agreement is silent
as to the number of arbitrators, three arbitrators shall be appointed
by the court.
Arbitrators
appointed by the court shall have the same power as though their appointment
had been made in accordance with the agreement to arbitrate.
4.51.6 Notice of Intention to Arbitrate — Contents. When
the controversy arises from a written agreement containing a provision
to settle by arbitration a controversy thereafter arising between the
parties out of or in relation to such agreement, the party demanding
arbitration shall serve upon the other party, personally or by registered
mail, a written notice of his intention to arbitrate. Such notice must
state in substance that unless within (20) twenty days after its service,
the party served therewith shall service a notice of motion to stay
the arbitration, he shall thereafter be barred from putting in issue
the existence or thereafter be barred from putting in issue the existence
or validity of the agreement or the failure to comply therewith.
4.51.7 Hearing by Arbitrators. The arbitrators shall appoint a time
and place for the hearing and notify the parties thereof, and may adjourn
the hearing from time to time as may be necessary, and, on application
of either party, and for good cause, may postpone the hearing to a time
not extending beyond the date fixed for making the award. All arbitrators
shall meet and act together during the hearing but a majority of them
may determine any question and render a final award. The court shall
have power to direct the arbitrators to proceed promptly with the hearing
and determination of controversy.
4.51.8 Failure of Party to Appear No Bar to Hearing and Determination.
If any party neglects to appear before the arbitrators after reasonable
notice of the time and place of hearing, the arbitrators may nevertheless
proceed to hear and determine the controversy upon the evidence which
is produced before them.
4.51.9 Time of Making Award — Extension — Failure to Make
Award When Required. If the time within which the award shall be
made is not fixed in the arbitration agreement, the award shall be made
within thirty days from the closing of the proceeding, unless the parties,
in writing, extend the time in which that award may be made. If the
arbitrator fails to make an award when required, the court, upon motion
and hearing, shall order the arbitrator to enter an award within the
time fixed by the court, and may impose sanctions or terms deemed reasonable
by the court. Failure to make an award within the time required shall
not divest the arbitrators of jurisdiction to make an award or to correct
or modify an award as provided in 4..51.17.1.
4.51.10 Representation by Attorney. Any party shall have the
right to be represented by an attorney at law in any arbitration proceeding
or any hearing before the arbitrators.
4.51.11 Witnesses - Compelling Attendance. The arbitrators, or
a majority of them, may require any person to attend as a witness, and
to bring with him any book, record, document or other evidence. The
fees for such attendance shall be the same as the fees of witnesses
in the Tribal court. Each arbitrator shall have the power to administer
oaths. Subpoena shall issue and be signed by the arbitrators, or any
one of them, and shall be directed to the person and shall be served
in the same manner as subpoena to testify before a court of record in
this state. If any person so summoned to testify shall refuse or neglect
to obey such subpoena, upon petition unauthorized by the arbitrators
or a majority of them, the court may compel the attendance of such person
before the said arbitrator or arbitrators, or punish said person for
contempt in the same manner now provided for the attendance of witnesses
or the punishment of them in Tribal court.
4.51.12 Depositions. Depositions may be taken with or without
a commission in the same manner and upon the same grounds as provid