Also known as: ex parte applications · ex-parte application · ex-parte applications · ex parte motion · ex parte proceeding
Written by attorneys · grounded in primary & secondary sources — see below
A request or petition presented to a court or tribunal by one party without prior notice to the opposing party. The absence of an adversary heightens the moving party's duty to supply all material facts that will enable an informed decision.
Atlas Machines retained attorney Diaz to obtain an emergency writ authorizing seizure of allegedly counterfeit parts from Apex Supply. State law permitted the writ application to proceed ex parte. Diaz possessed a lab report indicating the parts might not infringe but presented only the client's affidavits. The judge issued the writ without the benefit of contrary information.
Milligan, held by military authorities during the Civil War, filed an ex parte habeas corpus petition in federal court seeking release. The petition challenged the legality of his detention without trial. The court considered the application without any opposing submission from the government.
Select any source to read its text and confirm it supports the definition.
A creditor filed an ex parte application under state law to attach Doehr's real property before judgment. The attachment rested solely on the creditor's affidavit alleging probable cause. Doehr received no notice or hearing before the seizure took effect.
Neff obtained an ex parte default judgment against a nonresident defendant whose only contact with the forum was ownership of land. The judgment was later used to sell the land to satisfy the debt. The defendant had received no personal notice of the underlying action.
A seller obtained an ex parte writ of replevin authorizing seizure of household goods from a buyer who had defaulted on payments. The writ issued on the seller's affidavit alone and without prior notice to the buyer. State law permitted the seizure upon a showing of probable cause.
In an ex parte proceeding the lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse to the client. This duty arises because the opposing party has no opportunity to present contrary evidence.
Supporting sources
No. Even when relief is granted ex parte, the court must state the findings and conclusions supporting its action on the record. The absence of notice makes a clear articulation of the basis for the order more important, not less.
Supporting sources
A state statute permitting prejudgment attachment of real property on an ex parte application violates due process absent extraordinary circumstances. Notice and a hearing are ordinarily required before such a deprivation. Prompt post-attachment review may suffice only in genuinely exigent situations.
Supporting sources
…of the right of every man before being condemned of crime, to be heard and tried by an impartial jury? Second. This being an ex parte application for a writ of habeas corpus made to a court, the division of opinion then occurring was in effect a decision of the case. The case was ended when the court declined to issue the writ. It…