Dwyer, James Wm.

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Recent Decisions: Full Faith and Credit and Collateral Attack on the Determination of Jurisdiction

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Marquette Law ReviewVolume 48Issue 1 Summer 1964 Article 8Recent Decisions: Full Faith and Credit andCollateral Attack on the Determination ofJurisdictionJames Wm. DwyerFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationJames Wm. Dwyer, Recent Decisions: Full Faith and Credit and Collateral Attack on the Determination of Jurisdiction, 48 Marq. L. Rev.(1964).Available at: http://scholarship.law.marquette.edu/mulr/vol48/iss1/8RECENT DECISIONSConflict of Laws: Full Faith and Credit and Collateral Attackon the Determination of Jurisdiction: The petitioners instituted aquiet title action concerning bottom land on the Missouri River whereit forms the boundary between Missouri and Nebraska. "The Ne-braska court had jurisdiction over the subject matter of the controversyonly if the land in question was in Nebraska."' Both parties to the actionappeared in the Nebraska court and fully litigated the issues. After ahearing, the Nebraska court ruled in favor of the petitioners and quietedtitle in them. On appeal, the Supreme Court of Nebraska affirmed thejudgment after a trial de novo on the record made in the lower court.In the hearing, the Nebraska Supreme Court specifically found that theland in question was located in Nebraska and, therefore, that the Ne-braska courts had jurisdiction over the subject matter of the case.2Rather than petitioning the United Stateg Supreme Court for a writof certiorari, the respondent, the losing party in the Nebraska courts,commenced the identical quiet title action in Missouri. The case wasremoved to the federal district court in Missouri on the basis of diver-sity of citizenship. The district court ruled that the judgment of theNebraska Supreme Court was res judicata and, therefore, the subjectmatter was not open to further litigation. 3 The case was then taken tothe United States Court of Appeals for the Eighth Circuit, which re-versed the district court.4 Granting certiorari, the United States Su-preme Court in Durfee v. Duke' reversed the decision of the court ofappeals, thereby supporting the decisio of the Nebraska Supreme Court.The United States Supreme Court held that. . . the Federal Court in Missouri had the power, and uponproper averments the duty, to inquire into the jurisdiction of theNebraska courts to render the decree quieting title to the landin the petitioners. We further hold that when that inquiry dis-closed, as it did, that the jurisdictional issues had been fully andfairly litigated by the parties and finally determined in the Ne-braska courts, the Federal Court in Missouri was correct inruling that further inquiry was precluded.6Stated simply, the Supreme Court will not sanction legal procedureswhich permit collateral attack on the jurisdiction of a court, if the issueof jurisdiction had been fully litigated before that court according toI Durfee v. Duke, 84 S. Ct. 242, 243 (1963).2 Durfee v. Keiffer, 168 Neb. 272, 95 N.W. 2d 618 (1959).3 Duke v. Durfee, 215 F. Supp. 901 (W.D. Mo. 1961).4 Duke v. Durfee, 308 F. 2d 209 (8th Cir. 1962). The decision of this court hasbeen criticized. 63 COLUmn. L. REv. 353 (1963) ; 51 GEo. L. J. 851 (1963) ; 111U. PA. L. Rxv. 1218 (1963); 37 TuL. L. REv. 335 (1963) ; 49 VA. L. REv. 180(1963).'84 S. Ct. 242 (1963).6Id. at 248.RECENT DECISIONSthe requirements of due process.7 Although the Supreme Court haspreviously allowed one state to relitigate the jurisdictional finding ofanother state where there appears to have been no actual contest," thepractical need to end litigation concerning the jurisdiction has led theSupreme Court to apply the principles of res judicata to a determinationof jurisdiction by a state court?The rule against collateral attack on the jurisdiction of a court is amandate of the United States Constitution." This constitutional pro-vision and the federal statute implementing it prevent a disappointedparty from proceeding to another jurisdiction for a more favorableadjudication of his claim. The command of the full faith and creditclause is simply "that the same faith and credit be elsewhere given to ajudgment of the courts of any State as would be received by it in thecourts of that State."" Thus, in Durfee, once the federal district courtin Missouri decided that the Nebraska court had fully litigated the jur-isdictional question, it correctly held that the decision of the Nebraskacourt was binding upon it. The basic principle is that "the full faith andcredit clause of the Constitution precludes any inquiry into the meritsof the cause of action, the logic or consistency of the decision, or thevalidity of the legal principle on which the judgment is based."' 2The question arises as to precisely what the court of a sister statemay do upon receiving a case after the same cause has already beendecided in another jurisdiction. In an early Supreme Court decision,the Court held that "the jurisdiction of the court by which the judgmentis rendered in any state may be questioned in a collateral proceeding in7 Accord, Sherrer v. Sherrer, 334 U.S. 343 (1948); Trienies v. Sunshine Min-ing Co., 308 U.S. 66 (1939); Stoll v. Gottlieb, 305 U.S. 165 (1938) (subjectmatter jurisdiction) ; Baldwin v. Iowa State Traveling Men's Ass'n, 283U.S. 522 (1931) (personal jurisdiction).8 Thompson v. Whitman, 85 U.S. 457 (1873).9 Riley v. New York Trust Co., 315 U.S. 343, 349 (1942).10 U.S. CONST. art. IV, § 1: "Full Faith and Credit shall be given in each stateto the public Acts, Records, and judicial Proceedings of every other State.And the Congress may by general Laws prescribe the Manner in whichsuch Acts, Records, and Proceedings shall be proved, and the Effect thereof."Cf. 28 U.S.C. § 1738 (1948)."United States v. Robinson, 74 F. Supp. 427, 430 (W.D. Ark. 1947) ; Roche v.McDonald, 275 U.S. 449, 451 (1927).12Milliken v. Meyer, 311 U.S. 457, 462 (1940) ; RESTATEMENT, CONFLICr OF LAWS§ 451(2) (Supp. 1948); accord, RESTATEMENT, JUDGMENTS § 10 (1942):"Where a court has jurisdiction over the parties and determines that it hasjurisdiction over the subject matter, the parties cannot collaterally attackthe judgment on the ground that the court did not have jurisdiction oversubject matter, unless the policy underlying the doctrine of res judicata isoutweighed by the policy against permitting the court to act beyond itsjurisdiction. Among the factors appropriate to be considered in determiningthat collateral attack should be permitted are that (a) the lack of jurisdictionover the subject matter was clear; (b) the determination as to jurisdictiondepended upon a question of law rather than of fact; (c) the court wasone of limited and not of general jurisdiction; (d) the question of jurisdictionwas not actually litigated; (e) the policy against the court's acting beyond itsjurisdiction is strong."1964]MARQUETTE LAW REVIEWanother state, notwithstanding the provision of the fourth article of theConstitution. '13 Subsequently, this general statement has been modifiedby the United States Supreme Court in Durfee and similar cases in-volving the jurisdiction of a lower court. In Stoll v. Gottlieb,'4 theIllinois Supreme Court refused to recognize a plea of res judicataarising from orders of a district court in bankruptcy. Accordingly, theUnited States Supreme Court could see• . . no reason why a court, in the absence of an allegation offraud in obtaining the judgment, should examine again the ques-tion whether the actual contest over jurisdiction between theparties, did have jurisdiction of the subject matter of the litiga-tion.Courts to determine the rights of parties are an integral partof our system of government. It is just as important that thereshould be a place to begin litigation. After a party has his dayin court, with opportunity to present his evidence and his viewof the law, a collateral attack upon the decision as to jurisdictionthere rendered merely retries the issue previously determined.There is no reason to expect that the second decision will be moresatisfactory than the first. 5In Sherrer v. Sherrer,0 the Court stated that once a defendant ina divorce proceeding "has been accorded full opportunity to contest thejurisdictional issues, and where the decree is not susceptible to suchcollateral attack in the courts of the State which rendered the decree," 17defendant is barred from further attacking the question of jurisdiction,because full faith and credit must be given to courts having properjurisdiction. In the Durfee decision, the Supreme Court summed upthese prior holdings, stating that "since the question of subject matterjurisdiction had been fully litigated in the original forum, the issuecould not be retried in a subsequent action between the parties."' s Ineffect, the Supreme Court is making the local doctrine of res judicataa part of our national jurisprudence. 9Upon receiving an adverse ruling in Nebraska, the only proceduralstep would have been for the defendant (respondent in the UnitedStates Supreme Court) to petition the Supreme Court for a writ ofcertiorari,2 0 rather than commencing the action de novo in Missouri. Ifthere was error in the Nebraska proceedings, the right to review theerror was in the Nebraska or the federal appellate courts. The methodprovided for all litigants seeking final determination of their claims is13 Thompson v. Whitman, supra note 8, at 469.'4 305 U.S. 165 (1938).is Id. at 172.16 334 U.S. 343 (1948).17 Id. at 351-52.18 Note 5 supra, at 246.19 Riley v. New York Trust Co., supra note 9, at 349.20 See 28 U.S.C. § 1257(3) (1958).[Vol. 48RECENT DECISIONSto appeal to higher appellate courts.2 It is clear that neither party wouldhave been satisfied if respondent's method of litigation resulted in twofederal district courts handing down contrary decisions, one holding forthe petitioner and the other favoring respondent. The practical rationaleis that... public policy requires that there be an end to litigation; sowhere one voluntarily appears and without success contestsjurisdiction, the Supreme Court has held that he is "concludedby the judgment of the tribunal to which he has submitted hiscase." He cannot attack collaterally. However, he can appealfrom the original judgment and, if necessary, to the SupremeCourt of the United States.2 2 (Emphasis added.)It appears that the losing party waives the issue of jurisdiction in theoriginal suit if he does not appeal the adverse ruling through the cus-tomary appellate channels 2 3Although the issue of jurisdiction, as decided by the Nebraskacourt, was held to be final and binding in the federal district court inMissouri, there is strong evidence that the land in question was actuallyin Missouri. Even though the district court adhered to the constitu-tional principle of full faith and credit, the court in dicta stated:[I]t is difficult for me to understand how, under all the evi-dence, that the land in controversy is, or was at the time theissue was determined by that court, in Nebraska .... [I]t is mybelief that the evidence clearly reveals that the land lies inMissouri .... 14 (Emphasis added.)The reason for this peculiar situation is explained by the "bootstrapdoctrine."2 5 The theory underlying this doctrine is "that a court whichinitially has no jurisdiction can lift itself into jurisdiction, when theissue is litigated, by its own incorrect but conclusive finding that it doeshave jurisdiction."'2 The application of this doctrine contravenes theprinciple "that no state can exercise direct jurisdiction and authorityover persons or property without its territory."2 7 The courts, however,are inclined to overlook the latter and apply the former. In Stoll v.Gottlieb2 s the court said:A court does not have the power, by judicial fiat, to extend itsjurisdiction over matters beyond the scope of the authoritygranted to it by its creators. There must be admitted, however,a power to interpret the language of the jurisdictional instrumentand its application to an issue before the court. Where adversary21 Trienies v. Sunshine Mining Co., 308 U.S. 66, 77 (1939).22 STRUMBERG, CONFLICT OF LAWs 113 (3d ed. 1963).23 Stimson, When Does a Court Have Jurisdiction, 45 A.B.A.J. 569, 636 (1959).24 Note 3 supra, at 907, 909.22 Note, 53 HARV. L. REv. 652 (1940).26 LEFLAR, CONFLICT OF LAWS § 74, at 143 (1st ed. 1959).27 Pennoyer v. Neff, 95 U.S. 714 (1871).28 Note 14 supra.1964]MARQUETTE LAW REVIEWparties appear, a court must have the power to determine whetheror not it has jurisdiction of the person of a litigant, or whetherits geographical jurisdiction covers the place of the occurrenceunder consideration. . . . An erroneous affirmative conclusionas to the jurisdiction does not in any proper sense enlarge thejurisdiction of the court until passed upon by the court of lastresort, and even then the jurisdiction becomes enlarged onlyfrom the necessity of having a judicial determination of the juris-diction over the subject matter. When an erroneous judgment,whether from a court of first instance or from the court of finalresort, is pleaded in another court or other jurisdiction the ques-tion is whether the former judgment is res judicata.29 (Emphasisadded.)Whether or not there ever was de facto jurisdiction is not the issueonce the case is appealed to the federal courts. The situation is the samewhen the case is taken to the United States Supreme Court upon certi-orari, or when the possibility of appeal has been foreclosed by the pas-sage of time or by denial of certiorari. When the litigation reaches thispoint, the issue before the court of last resort is to decide whether theoriginal judgment is entitled to full faith and credit.It is important to note that the Supreme Court in the Durfee casedid not conclusively determine the boundary between Nebraska andMissouri. This is emphasized in the Supreme Court's concurring opin-ion:[W]e are not deciding the question whether the respondentwould continue to be bound by the Nebraska judgment shouldit later be authoritatively decided, either in an original proceedingbetween the States in this Court or by a compact between the twostates under Art. I, §10, that the disputed tract is in Missouri. 30Thus, since the finality achieved by the litigation only applies to theparties in the action and their privies,31 future litigation originating inMissouri may create several practical problems if the land is then de-termined to be in Missouri.3 2 There would be no bar to the state ofMissouri bringing a property tax suit against the petitioners, the land-owners as declared by the Nebraska court. Since the parties to thishypothetical tax dispute are original, the issue of jurisdiction as deter-mined by the Nebraska court in Durfee may only have the authorityof stare decisis. The fact that strong evidence exists that the Nebraskacourt did "lift" the tract of land in dispute into its jurisdiction rendersit probable that the Missouri court would declare the land to be withinthe Missouri boundaries and subject to a Missouri property tax. At291 d. at 171-72.30 Note 5 supra, at 248.31 Iselin v. C. W. Hunter Co., 173 F. 2d 388 (5th Cir. 1949) ; Martin v. Lopes,28 Cal. 2d 618, 170 P. 2d 881, 883 (1946).32 Ordinarily, the law applied to property is determined by the situs of thatproperty. RESTATEMENT (SECOND), CONFLICT OF LAWS §§ 208, 211, 214, 215(Tent. Draft No. 5, 1959).[Vol. 48RECENT DECISIONSthe same time, petitioners' land migkt well be burdened with a Nebraskaproperty tax, because the Nebraska court held the land to be part of itsstate. In conjunction with the property tax problem, a similar questionwill arise in determining which state may levy an inheritance tax if theland passes through intestacy or probate. Missouri may decide to imposean inheritance tax on the land and cause the issue of jurisdiction to berelitigated.In addition, although the Nebraska court in Durfee awarded theland to petitioners, it could be questioned whether petitioners receiveda marketable title. When giving a sample definition of marketable title,a Wisconsin court stated that• * . although a title is good, if there is reasonable doubt as toits validity it is not marketable. A material defect is such as willcause a reasonable doubt and just apprehension in the mind ofa reasonably prudent and intelligent person, acting upon com-petent legal advice, and prompt him to refuse to accept it. If suchdoubt exists as to make the title subject to probable attack bylegal proceedings, or depends upon facts which can only be es-tablished by parol evidence if attack is made upon it in such pro-ceeding, the title is not marketable.33According to this definition of marketable title, it does not appear thatthe present landowner has the assurance of freedom from successfullitigation. It is open to question whether an attorney would advise hisclient to purchase land which may be subject to the laws of a differentstate or to the laws of two states. It may also be true that other partiesexist who have an interest in the disputed land and a right to begin suitin the Missouri courts. These "new parties" may seek better treatmentunder more favorable Missouri law. Hence, it would be advantageousfor them to retry the issue of the jurisdiction of the Nebraska courtover the land in dispute.In Durfee v. Duke, the Supreme Court of the United States de-cided the Nebraska court's jurisdiction of land lying on the Nebraska-Missouri boundary according to the mandates of full faith and creditand according to prior Supreme Court decisions. However, the Courtleft open the substantive question as to whether the land was in Ne-braska or Missouri. In subsequent litigation with parties not in privityto those in the original action, or with parties having different claimsthan those already litigated, the Missouri court may be called on toretry the issue of jurisdiction over the land. In essence, the SupremeCourt did not finally decide that the land is located within the boun-daries of Nebraska, and petitioners may have won only a Pyrrhicvictory. JAMES Wm. DWYER33 Douglass v. Ransom, 205 Wis. 439, 446, 237 N.W. 260, 263 (1931).1964]

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Recent Decisions: Full Faith and Credit and Collateral Attack on the Determination of Jurisdiction

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