# Petition — Foster v. Kingdon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 916

## Text

Supreme Court, U. &
“™ FILED é.

MAR 11 1977

MICHAEL RODAK, JR., CLERK
INTHE <‘ « 7

Supreme Court of the United States

October Term, 1976

76-1328

No. __

CAROL KINGDON FOSTER,

Petitioner,
VS.

GEORGIA PHILLIPS KINGDON,
Respondent

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT FOR THE STATE
OF GEORGIA

PAUL WEBB, JR.

DAVID E. BETTS
84 Peachtree Street, N.W.
Atlanta, Georgia 50303

BERTRAM S. BOLEY
1540 First National Bank Tower
Atlanta, Georgia 30303

Counsel for Petitioner

TABLE OF CONTENTS

Gedmieme BOlOW . 2 6 ts we ewe ewe wee eo &
perrrrrrrrn ..-. '. «- 4 « « © & @ &@ @
Questions Presented ....... ed

Statutes, Constitutional Provisions
and Regulations. ...... 2

Statement of the Case. ...... 3
Reasons for Granting Writ. .... 5
re. Ci Ue Ck es ee es eC

Appendix

TABLE OF CITATIONS

Cases

Abernathy vs. Chambers, 482 S.W.
Mie Bae Ces BUCEle 6+ «© « « « okt

Andrews vs. Andrews, 188 U.S. 14,
ae Ge GOe Set (aeee) «© «© © oo ot

Bell vs. Bell, 181 U.S. 175, 21S.
aR } lk eee ee ee ee ee

Coe vs, Coe, 334 U.S. 378 (1948). .11

oie

Cook vs. Cook, 342 U.S. 126, 128,

72 S. Ct. 157, 96 L Ed 146
(1951) . 7 - . . ° . ° ° . e .

Crisco vs. Crisco, 313 So.2d 529
s.C. Ala. 5). . . . . . °

Davis vs. Davis, 305 U.S. 32, 59
S. Ct. 3, 83 L Ed 26 (1938) .

Davis vs. Weht, 302 N.E.2d 382
(Zul. ABD. 1973). . « ee o

Durfee vs. Duke, 375 U.S. 106, 84

S. Ct. 242, 11 L Ed2d 186
(1963) . . 7 . . . - . - . 7 +

Ford vs. Ford, 286 So.2d 385 (La.

a: s+ «+ *« + *s * %

Forman vs. Forman, 496 S.W.2d
Ten. Co. App. 1973)...

Hardigan vs. Hardigan, 272 Ala.
73 So. (1961) ..

Janes vs. Francesco, 295 A.2d

GSS (ede LUTE) «© 0 6 0 e'e

Johnson vs. Muelberge or 340 U.S.
581, 71 8S. Ct. 4 95 L Ed
$52 (1951). . —

Kant vs. Kant, 272 So.2d 153

(S.C. Fla. 1973) - pp. 156-157.

ii.

14

1l

12

12

12

13

12

6, 9,
11, 15

11

Kingdon vs. Foster, 238 Ga. 37
De a"« a6 «© 4% 6 eu

Leff vs. Leff, 102 Cal. Rep.
195 (Cal. App. 1972). ....

McCarthy vs. McCarthy, 276 N.E.
2d 891 (Ind. App. 891)....

Milliken vs. Meyer, 311 U.S.
457, 61 S. Ct. 339, 85 L Ed
Ste CAPGGPe we we wo ee eee

Podgorney vs. Great Central Ins.
Co., 311 N.E.2da 640 (Ind.
ms BUVGe wo ew eo es 6 © 6 8

Ratner vs. Hensley, 303 So.2d 41
7 3 Sp eee

Reinink vs. Reinink, 180 N.W.2d
57 (Mich. App. 1970). ....

Sherrer vs. Sherrer, 334 U.S.

ee Pere eee

“ta Ne Staley, 248 A2d 655,
App. 1368) ees 2 8 y

Thompson vs. Whitman, 18 Wall.
457, 21 L Ea 897 (1874) ...

Topham vs. L.L.B. Corp., 493 S.W.
2a 461 (Ten. 1973). . « « « «

Wheeler vs. Simmons, 206 So.2d
ee Ge SE 6 6 © 6 ee 6

Williams vs. North Carolina, 325
U.S. 226, 65S Ct. 1092, 89

iii.

12

12

1l

1l

1l

12

12

12

» BS 2977 (4943 «we we eo eo we Me

Statutes

Art. IV, Sec. I, U. S.
Pee ee a ae a ee a

Amendment XIV, Par. 1, U. S. Con-
sti tution * > . . . * - * - - _ 3

28 U.S.C. §1738 (1948). ..... .3

Miscellaneous

47 Am. Jur.2d Judgments, §1254,
Pp- 249 . . . . _ . — o . 7. .* 7

50 C.J.S. Judgments §893, p. 497. .7
Necessity for Domicile in Two Party

Divorces, 52 Col. L. Rev. O02
(1963) ” . . - . . ° . . . ° . -10

Restatement; Conflict of Laws
(Supp. 1948) + . ° . 7 . . . . -10

Restatement, Judgments (1942). . . 10

iv.

IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1976

NO.

CAROL KINGDON FOSTER,
Petitioner,
vs.
GEORGIA PHILLIPS KINGDON,
Respondent.
PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE STATE
OF GEORGIA

The Petitioner, CAROL KINGDON
FOSTER, prays that a Writ of Certiorari
issue to review the judgment of the Supreme
Court of Georgia rendered on November 23,
1976, and reaffirmed in a denial of a
Motion for Rehearing on December 14, 1976.

OPINIONS BELOW

The opinion of the Supreme Court
of Georgia reversing the decision of the
Superior Court of Fulton County, Georgia,
is reported in 238 Ga. Rep. 37, and is
appended in Appendix A, Infra, p. 1. The
order of the Trial Court with its find-
ings of facts and conclusions of iaw
enterec. by the Superior Court of Fulton
County, Georgia, is an unreported opinion
— is appended hereto in Appendix A, pp.

ele

JURISDICTION

The opinion of the Supreme Court
of Georgia was entered on November 23, 1976,
and the Motion for Rehearing was denied by
the Supreme Court of Georgia on December
14, 1976. This Court has jurisdiction
pursuant to 28 U.S.C. §§1257(3), 210l(c),
and Rule 22.3, Revised Rules of the Su-
preme Court of the United States.

QUESTIONS PRESENTED

I. WHETHER THE FULL FAITH AND CREDIT
CLAUSE OF THE UNITED STATES CONSTITU-
TION PREVENTS A PERSON WHO HAS A
PROPERTY INTEREST, WHICH IS AFFECTED
BY A FOREIGN DIVORCE DECREE BUT WHO
IS NOT IN PRIVITY WITH PARTIES TO
THAT JUDGMENT, FROM CHALLENGING IN A
SISTER STATE THE JURISDICTION OF THE
RENDERING COURT (THE ISSUE OF JURIS-
DICTION HAVING NEVER BEEN PREVIOUSLY
FULLY AND FAIRLY LITIGATED.)

II. WHETHER THE LAWS OF THE STATE OF
ALABAMA AUTHORIZE THE NULLIFYING OF
A JUDGMENT WHEN IT COMES TO THE ATTEN-
TION OF A COURT ASKED TO GIVE EFFECT
TO THAT DECREE THAT THE JUDGMENT WAS
RENDERED WITHOUT JURISDICTION AND AS
A RESULT OF FRAUD AND COLLUSION
BETWEEN THE PARTIES OBTAINING THAT
JUDGMENT.

STATUTES AND CONSTITUTIONAL PROVISIONS
INVOLVED

The statutes and constitutional
provisions involved are Art. IV, Sec. I
of the United States Constitution;

-2e

Amendment XIV, Paragraph 1 of the United
States Constitution, and 28 U.S.C. §1738
(1948). These provisions appear in
Appendix B, pp. 1-2.

STATEMENT OF THE CASE

This case arises out of a contest
between the Petitioner and the Respondent
over rights of inheritance involved in the
Estate of FRED WILLIAM KINGDON, JR., who
died a resident of the State of Georgia
in September, 1974. Petitioner was the
only child of the deceased. In connection
with the ‘proceedings in Probate, Petitioner
challenged the validity of Respondent's
marriage to the deceased on the grounds
that Respondent was still lawfully married
to one Harry Ragan Eidson, and consequently
was without capacity to contract another
marriage under the laws of the State of
Georgia.

In response to that allegation,
Respondent produced a divorce decree en-
tered in the Inferior Court of Equity in
Geneva County, Alabama, on July 27, 1961,
purporting on its face to grant a divorce
to her from Harry Ragan Eidson. Peti-
tioner sought to impeach that divorce
decree on the grounds that the Court in
the State of Alabama lacked jurisdiction
upon which to enter such decree, both
parties to that action being residents of
the State of Georgia at the time said
decree was entered. The Trial Court
found that the Respondent obtained the
decree by traveling to the City of
Roanoke, Alabama, and meeting with a
lawyer on two separate occasions. The
Trial Court also found that the Respondent

a» 9a

did not appear at the divorce proceedings
in Geneva County, Alabama, nor did she ever
travel to Geneva County, Alabama, to ob-
tain the divorce. The Trial Court also
found that all the proceeding papers were
signed by the Respondent and her husband
at an attorney's office located in the
City of Roanoke, Alabama. The Court also
found that the Petition for Divorce was
filed in the Inferior Court of Equity in
Geneva County, Alabama, on the 26th day
of July, 1961, and the Final Decree was
entered the following day.

Finding that the jurisdictional
issue was never fully and fairly liti-
gated in the State of Alabama (the Peti-
tion having been filed one day and the
decree granted the next, and neither party
having appeared before the Court), the
Trial Court determined that the Alabama
Court lacked personal and subject matter
jurisdiction at the time of rendering the
divorce judgment (neither party being
domiciled in Alabama), and, consequently,
the judgment was null and void and should
not be given any effect under the Full
Faith and Credit Clause of the United
States Constitution.

The Supreme Court of Georgia re-
versed the decision of the Trial Court and
ignored completely the non-adversary nature
of the proceedings in Alabama. It held
that collateral attack on the question of
lack of jurisdiction could only be main-
tained if the laws of the State of Alabama
authorize such a collateral attack on a
decree. The Supreme Court of Georgia
stated that the Full Faith and Credit
Clause does not permit inquiry into juris-
diction by a sister state unless such

odo

inquiry is authorized by the rendering
state. The Court held (contrary to the
findings of the Trial Court) that the
State of Alabama does not authorize col-
lateral attack on its judgments by
Strargers on the grounds of lack of juris-
diction over the person or subject matter.

REASONS FOR GRANTING THE WRIT

The Supreme Court of Georgia com-
mitted error in its decision by ignoring
the opinion of this Court and the line of
cases cited therein dealing with full
faith and credit found in Durfee vs. Duke,
375 U.S. 106, 84 S. Ct. 242, II L Ed2d
186 (1963), decided on December 2, 1963.
In that case Mr. Justice Stewart stated
that:

"However, while it is estab-
lished that a Court in one State,
when asked to give effect to the
judgment of a Court in another
State, may constitutionally in-
quire into the foreign court's
jurisdiction to render that judg-
ment, the modern decisions of
this Court have carefully delin-
eated the permissible scope of
such an inquiry. From these de-
cisions there emerges the general
rule that a judgment is entitled
to full faith and credit - even
as to questions of jurisdiction -
when the second court's inquiry
discloses that those questions
have been fully and fairly liti-
gated and finally decided in the
court which rendered the origi-
nal judgment."

-5-

Durfee vs. Duke, supra, at lll.

The record in this case reveals
that the question of jurisdiction was never
fully and fairly litigated in the Inferior
Court in Equity of Geneva County, Alabama.
In fact, as the record reflects, the
Petition for Divorce was filed on July
26, 1961, one day before the final judg-
ment was rendered. There was no semblance
of an adversary proceeding (the parties
were not present and did not even know
where or how the proceedings were occurr-
ing).

The opinion of the Supreme Court
of Georgia from which this Petition of
Certiorari arises is founded solely upon
the proposition that the Alabama divorce
decree cannot be collaterally attacked
by the Petitioner because she could not
have attacked that decree in the State of
Alabama. Johnson vs. Muelberger, 340 U.S.
581, 71S. Ct. ° LE (1951) is
relied on to sustain this proposition.

It is the opinion of Petitioner that the
Johnson case does not support the view
announced by the Supreme Court of Georgia.

The Supreme Court of Georgia, in
its opinion rendered on November 23, 1976,
(rehearing denied on December 14, 1976)
held that:

"We conclude that the
Alabama courts would not permit
Mrs. Foster to now attack the
1961 judgment of its court; and
the Full Faith and Credit Clause
will, therefore, not permit such
a collateral attack in the courts

-6§-

of this State."

ue vs. Foster, 238 Ga. 37 at

What the Supreme Court of Georgia
failed to consider was that the Full Faith
and Credit Clause of the United States
Constitution does not preclude inquiry into
the question of jurisdiction if the sister
state, wherein the judgment is attempted
to be recognized, determines that the ques-
tion of jurisdiction has never been fully
and fairly litigated in the court which
rendered the original judgment.

Thus, the Supreme Court of Georgia
in rendering its decision failed to follow
decisions of this Court which have held
that full faith and credit is to be ac-
corded only when the jurisdiction of
another state is not impeached either as
to subject matter or as to person. Thomp-
son vs. Whitman, 81 Wall. 457, (1874).
See also: Williams vs. North Carolina,
325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed.
1577 (1945).

This Court has held repeatedly
that a judgment can be enforced in a
sister state:

"..-only if the court of the first

1. purfee v. Duke, supra; Milliken v. ,
Meyer (1940), 311 U.S. 457, 61 S. Ct. 339,
85 L Ed 278. See also: 47 Am. Jur.2d,
Judgments, p. 249, §1254; 50 C.J.S. Judg-
ments §893, p. 497

~ =

State had power to pass on the
merits -- had jurisdiction
that is to render the judgment."

Williams vs. North Carolina,

Supra, at 229.

That is to say, the Court rendering the
judgment must have jurisdiction.

Where a divorce is concerned, the

power of the courts to grant decrees always,

under our system of law, has been founded
upon domicile. Andrews vs. Andrews, 188
U.S. 14, 23 S. Ct. ; Be vs.
Bell, 181 U.S. 175, 21S. Ct. 551 (1901).
This court, interpreting the full faith
and credit clause, has decreed certain
standards of procedural due process to be
observed before judgments changing the
status of parties to a marriage may be
accorded full faith and credit in a sis-
ter state. It seeks thereby to permit a
state to vindicate its social policy
against selfish action on the part of those
outside its borders.

"The State of domiciliary
origin should not be bound by
an unfounded, even if not con-
Clusive, recital in the record
of a court in another State."

Williams vs. North Carolina, supra,
at 230.

The Supreme Court of Georgia in
rendering its decision failed to recog-
nize those procedural due process stan-
dards which have been adopted by this Court.

aQeo

Contrary to the apparent view of
the Supreme Court of Georgia, the require-
ment of jurisdiction has not been changed.
Even without the Durfee vs. Duke, supra,
decision, Johnson indicates that the ques-
tion of jurisdiction is not foreclosed from
inquiry in the sister state unless that
question has been previously fully and
fairly litigated. As the language of Mr.
Justice Reed demonstrates:

". . . the framers intended
it [the full faith and credit
clause] to help weld the indepen-
dent states into San ane Sentehie
in ud nts within t urisdic-
tion ° he rendering state full
faith and credit in the sister
states as they would have in the
state of the original forum.

", . . It leaves each state
with power over its own courts
but binds litigants, wherever
they may be in the nation, by
prior orders of_other courts with
jurisdiction."

(Emphasis added)

Obviously, jurisdiction is a legitimate
matter of inquiry whenever the enforcement
of a foreign judgment is sought. 3

é Johnson v. Muelberger, supra, at 584-
585. See also: Cook v. Cook, 342 U.S.
126 at 128.

3 See 7 Durfee, 375 U.S. at p. 114, note
12, 84 S. Ct. 342, citing Restatement, Con-
flict of Laws, §451(2), (Supp. 1948), and

~=

Thus, where full faith and credit
is claimed for a divorce decree in a sis-
ter state, inquiry is permitted into the
authority to render that decree unless
that issue has been previously full and
fairly litigated. Only when there has
been a true adversary proceeding in the
rendering court can further inquiry be pre-
cluded; and the Full Faith and Credit
Clause operates for the advancement of
justice rather than for the perpetuation
of a fraud.

The question presented in the
case at bar is one of importance because
of the necessity of adequately prescribing
the effect in other states of judgments of
sister states and for the adjustment of
domestic relations laws of the several
states as well as making certain that the
Full Faith and Credit Clause of the United
States Constitution is not used to perpet-
rate frauds on courts and third parties.
If this Court denies certiorari and allows
the decision of the Supreme Court of
Georgia to stand, all litigants in the
State of Georgia, as well as those in
other State Courts which are persuaded by
the reasoning of the Supreme Court of Georgia,
will be foreclosed from impeaching a judg-
ment which is impeachable under the de-
cisions of this Court authorizing inquiry
where the matter has not been previously
fully and fairly litigated and where the
decree affects a property interest of
a litigant who is not in

Restatement, Judgments, ch. 5, contem-
plates "Equitable Relief" for various rea-
sons. Sec. 117 contemplates the granting
of equitable relief from a void judgment
which "appears or purports to be valid."

-10-

privity with parties to that judgment.

Further, Petitioner urges this
Court to review this question where a true
stranger to the decree, under challenge for
lack of jurisdiction, has a property inter-
est which is being affected by the foreign
judgment. The previous decisions of this
Court deal only with challenges by persons
who were not strangers to the divorce pro-
ceedings, but rather were in privity with
parties, or parties themselves, or aided
in the obtaining of the divorce. Coe v.
Coe, 334 U.S. 378 (1948) (a party);
Sherrer vs. Sherrer, 334 U.S. 343 (1948)
(a party); Davis vs. Davis, 305 U.S. 32
(1938) (a party); Johnson vs. Muelburger,
supra (attack by children of party); Cook
vs. Cook, 342 U.S. 126 (1951) (subsequent
husband, but aided in obtaining divorce
by paying cost of trip to Florida and part
of legal expenses.)

Ze The decision of the Georgia
Supreme Court is in conflict with the fol-
lowing State and Federal Court decisions:

Reinink vs. Reinink, 180 N.W.2d
57 (Mich. App. 1970);

Ratner vs. Hensley, 303 So.2d 41

See: Necessity for Domicile in Two
Party Divorces, 52 Cd. L. Rev. 282, 283
(1953), which suggested that stranger
means only persons whose property inter-
ests are not affected by the decree. As
for property interest of Petitioner, see:
In Re: Est. of Kant v. Kant, 272 So.2d
153 (S.C. Fla. 1973) at pp. 156-157.

elie

[Fla. App. (1974)];

- Podgorney vs. Great Central Ins.
Co., 311 N.E,2d 640 (Ind. App.
1974);

Ford vs. Ford, 286 So.2d 385 (La.
App. 1973);

Davis vs. Weht, 302 N.E.2d 382
(Ill. App. 1973);

Janes vs. Francesco, 295 A.2d 633

(N.J. 1972);

Staley vs. Staley, 248 A.2d 655
(Md. App. 1968);

Comprehensive Mechandising Cata-
1 Inc. vs. Madison Ace Corp.,
;

ogs,
521 F.2d 1210 (7th Cir.

Topham vs. L.L.B. Corp., 493 S.W.
2g 461 (Ten. 1973);

Forman vs. Forman, 496 S.W.2d 243
(Tex. Co. App. 1973);

McCarthy vs. McCarthy, 276 N. E.2d
891 (Ind. App. 891);

Wheeler vs. Simmons, 206 So.2d 854
(Ala. 1968);

Leff vs. Leff, 102 Cal. Rep. 195
(Cal. App. 1972);

Abernathy vs. Chambers, 482 S.W.
2d 129 (Ten. 1972).

=32~

3. Decision of the Court below is
erroneous and conflicting with the law of
Alabama on the question of the ability of
a court to nullify a judgment presented for
enforcement when it comes to the attention
of that court that the judgment was ren-
dered without jurisdiction and obtained by
fraud and collusion between the parties.

As pointed out by the Trial Judge,
the most often cited expression of the Ala-
bama Courts’ ability to inquire into the
validity of its decrees for lack of juris-
diction is the case of Hardigan vs. Hardi-
gan, 272 Ala. 670, 128 So.2d 725 (1961).

An examination of this case reveals pre-
cisely a situation analogous to the case
at bar. In that case, the parties had no
standing to attack directly the divorce
decree. The suit involved a petition for
modification of a divorce decree. In the
proceedings before the Court it became
apparent to the Judge on the facts as pre-
sented by both parties that neither party
resided in the State of Alabama at the
time the divorce decree was rendered. The
Court stated that:

"Irrespective of whether the
plaintiff is in a position to at-
tack the decree awarding alimony
to the defendant, such decree can-
not stand because we have repeated-
iy held that where a void decree
is brought to the attention of a
Court, it is the duty of the Court
on its own motion to vacate the same.

Hardigan, supra, at 730.

This rule has been most recently
-13-<

restated by the Supreme Court of Alabama
in the case of Crisco vs. Crisco, 313 So.
2d 529 (May 8, 1975), where that Court
stated:

"A court is not without
jurisdiction to exercise its
inherent power to set aside and
vacate any time a judgment be-
cause of supervening invalidity
based on fraud practiced on the
Court by a party in the procure-
ment of a judgment apparent on
the face of the record.

"A natural and logical exten-
sion of this proposition is the

holding of this Court in Hardigan
v. Hardigan, 272 Ala. 67, 128 SO.
2a 725 (1561) . There, in uphold-
ing the lower Court's order vacat-
ing an original divorce decree,
the rule was laid down to the
effect that where jurisdiction of
a Court was fraudulently invoked
by the parties and this fact be-
came apparent in a subsequent pro-
ceeding, although neither party
attacked the validity of the origi-
nal decree which is regular on its
face, the Court is empowered ex
mero motu to set aside the decree.

"While the facts on which
Hardigan is based are restrictive,
the principle subordinate to its
holding is not so limited. That
principle authorized the Trial
Judge in the instant case, on
discovery of the facts not re-
vealed until the filing of the
petition for rehearing, to

-14-

correct his own motion for
fraudulent use of a judicial
process. We hold that the
action of the Trial Court in
vacating the original decree

of divorce and ordering a new
trial was necessary and justi-
fied in the exercise of its in-
herent powers to protect the in-
tegrity of its judicial proceed-
ings."

Thus, Petitioner urges this Court
to grant a Writ to review the decision of
the Supreme Court of Georgia, it being
clear that Alabama allows inquiry as to
jurisdiction when asked to enforce its
jwigments. This Court, as in Johnson,
supra, is the only Court available to the
Petitioner to correct the erroneous inter-
pretation of the law of a State committed
by the highest Court of a sister State.

CONCLUSION

For the foregoing reasons, this
petition for a Writ of Certiorari shoud
be granted.

Respectfully submitted,

AUL WEBB, °
Counsel for Petitioner
This 9th day of March, 1977.

-15-

APPENDIX "A"

31338. KINGDON v. FOSTER.

GUNTER, Justice.

This appeal presents the issue of whether the
Georgia courts must give full faith and credit to an
Alabama divorce judgment that is collaterally attacked,
by a person not a party to the Alabama judgment, on the
ground that the Alabama court lacked subject-matter
jurisdiction at the time of the rendition of the Alabama
divorce judgment.

The trial court ruled, in proceedings in which each of
the contesting parties had sought a summary judgment in
her favor, that the collateral attack could be made, that
the summary judgment evidence sustained the collateral
attack, that the Alabama divorce judgment was void, that
the appellant’s ceremonial marriage to Mr. Kingdon was
not a valid marriage, and that the appellant was therefore
not the widow of the deceased, her purported husband.
Summary judgment was rendered in favor of Mrs. Foster,
the sole surviving child of her deceased father, Mr.
Kingdon.

We have concluded that we must respectfully
disagree with the trial court’s judgment: we conclude that
the Alabama divorce judgment is not subject to collateral
attack, in the courts of either Alabama or Georgia, by a
person not a party to that judgment; and the judgment
below must be reversed.

Mrs. Kingdon, the appellant here. had married a Mr.
Eidson in 1951. Mr. Eidson was still in life when Mrs.
Kingdon married the deceased in 1968. Therefore, the
validity or the invalidity of the Alabama divorce
judgment, obtained in 1961 by and between Mr. and Mrs.
Eidson (now Mrs. Kingdon), is crucial as to whether Mrs.
Kingdon was the legal spouse of the deceased and his
widow, for inheritance purposes, after Mr. Kingdon’s
death.

Mr. Kingdon left a will, executed before his
ceremonial marriage to Mrs. Kingdon in 1968, in which
he left all of his property to his only child, Mrs. Foster.
Mrs. Kingdon contended that the will, executed before her
marriage to Mr. Kingdon, was revoked by that marriage,
and that Mr. Kingdon died intestate. Mrs. Foster

contended that the ceremonial marriage was invalid
because of the invalidity of the 1961 Alabama divorce
judgment, that the will was not revoked, and that Mrs.
Kingdon was not the widow of her deceased father.

Mr. Kingdon died in 1974; Mrs. Kingdon sought to
administer the estate of her husband whom she contends
died intestate; and Mrs. Foster brought an action in
equity that sought to enjoin Mrs. Kingdon’s ad-
ministration of the estate and sought to require Mrs.
Kingdon to produce the will, admittedly in Mrs.
Kingdon’s possession, for probate.

Mrs. Kingdon has appealed from the judgment
rendered below in favor of Mrs. Foster.

Whether Mrs. Foster can or cannot attack Mrs.
Kingdon’s 1961 divorce from Mr. Eidson, rendered in
Alabama, is the dispositive issue in this appeal. Mrs.
Kingdon, then Mrs. Eidson, filed the divorce action in
Alabama; Mr. Eidson, then a resident of Georgia, filed
responsive pleadings and submitted personally to the
jurisdiction of the Alabama court; Mrs. Eidson’s pleadings
and affidavit showed her to be a resident of Alabama, and
the Alabama 1961 judgment shows on its face that the
Alabama court had persona! and subject-matter
jurisdiction in the case.

Mrs. Foster's sole attack on the Alabama judgment is
based on the fact that in 1961 at the time of the entry of the
judgment, or at any time prior thereto, Mrs. Kingdon
(then Mrs. Eidson) was not a resident of Alabama, and the
Alabama court did not have subject-matter jurisdiction
for the rendition of a divorce judgment that terminated
the marriage between her and Mr. Eidson.

Mrs. Kingdon’s primary enumerated error here is:
“The divorce decree could not be collaterally attacked in
Alabama since plaintiff (Mrs. Foster) had no standing to

attack said decree and thus was barred from such attack |

in Georgia by the Full Faith and Credit Clause of the
Constitution of the United States.”

In Johnson v. Muelberger, 340 U. S. 581 (1951) the
Supreme Court of the United States held that when a
decree of divorce cannot be attacked on jurisdictional
grounds by parties who were actually before the court, or
by their privies, or by strangers, in the courts of the state

2

in which the decree was rendered, the Full Faith and
Credit Clause precludes their attacking it in the courts of
a sister state.

The opinion in Johnson v. Muelberger relied on the
case of Sherrer v. Sherrer, 334 U. S. 343 (1948) in which
the Supreme Court said: “This court has also held that the
doctrine of res judicata must be applied to questions of
jurisdiction in cases arising in state courts involving the
application of the full faith and credit clause where, under
the law of the state in which the original judgment was
rendered, such adjudications are not susceptible to
collateral attack.” P. 350.

In Woody v. Woody, 91 Ga. App. 806 (87 SE2d 222)
(1955), the Georgia Court of Appeals explicitly ac-
knowledged the Johnson v. Muelberger rule in the full
faith and credit area. So far as we have been able to
determine, the Johnson v. Muelberger rule has never
been relied on, referred to, or cited in the opinions of this
court on the issue of collateral attack upon the judgment
of a sister state.

Therefore, it follows that if Mrs. Foster could not
attack the 1961 divorce judgment today in the Alabama
courts, she cannot attack it in the Georgia courts.

In Aiello v. Aiello, 272 Ala. 505, 510 (133 S2d 18)
(1961) the Supreme Court of Alabama said, in language
that was not necessary to a decision in that case, that the
complaining party had no standing to collaterally attack
a divorce judgment. That court said: “He was not a party
to the divorce suit. We do not think he possessed, at the
time the divorce decree was rendered, any right which
was adversely affected by that decree. It does not appear
that he stands in privity with either party to the divorce
suit. He cannot derive any right from the respondent, the
woman he purportedly married in 1950, because, if the
1950 marriage is void as he says it is, then no right could
pass to him by a void marriage; and, if the marriage be not
void, then he is still the husband of the respondent and
cannot have their marriage annulled, as he seeks to have
done by this suit.” P. 22.

Yerger v. Cox, 281 Ala. 1, 5 (198 S2d 282) (1967)
adopted and affirmed the language used in Aiello and
said: “In the instant case, the allegations of the bill do not

3

show that the decree divorcing the Coxes was void on its
face. The bill does show that the complainants are
strangers to the decree, that they occupy no status and
had no rights which were or could have been affected by
the decree at the time it was rendered. No right attempt-
ed now to be asserted was acquired by either the
complainants or their father, the second husband, prior to
the rendition of the decree.” P. 286.

Weisner v. Weisner, 282 Ala. 626 (213 S2d 685)
(1968) followed Yerger v. Cox and denied collateral
attack.

We conclude that the Alabama courts would not
permit Mrs. Foster to now attack the 1961 judgment of its
court; and the Full Faith and Credit Clause will therefore
not permit such a collateral attack in the courts of this
state.

A recent decision of the Appellate Court of Illinois,
Fourth District, is in accord with what we have ruled here.
In Alikonis v. Alikonis, 36 Ill. App. 3d 159, 163 (343 NE2d
161) (1976) that court said: “In the instant case defendant
had no pre-existing rights at the time of plaintiffs
Alabama divorce and that decree is not shown to be void
on its face. That decree, therefore, would not have been
subject to collateral attack by defendant in the state of
Alabama.”

The 1961 Alabama judgment must be accorded full
faith and credit; and Mrs. Foster is prevented from

attacking it on the ground that the Alabama court that

rendered it lacked subject-matter jurisdiction.
Judgment reversed. All the Justices concur, except
Hall, J., who concurs in the judgment only.

ARGUED JULY 14, 1976 — Decipep NovemBeEr 23, 1976 —
REHEARING DENIED DECEMBER 14, 1976.
Probate of will, etc. Fulton Superior Court. Before
Judge Etheridge.
Garland, Nuckolls, Kadish, Cook & Weisensee, O.

Jackson Cook, Cliffe Lane Gort, Robert W. Hassett, for
appellant.

Webb, Parker, Young & Ferguson, David E. Betts,
Paul Webb, Jr., Bertram S. Boley, for appellee.

4

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

CAROL KINGDON FOSTER,

Plaintiff,
CIVIL ACTION

FILE NO. C-3042

)
)
)
)
vs. )
)
GEORGIA PHILLIPS KINGDON)

)

)

Defendant.

STATEMENT OF FACTS

The above styled case arose out of a
contest that resulted in the Probate Court of
Fulton County, Georgia, in regard to the ques-
tion of right of inheritance from the estate
of Fred William Kingdon, Jr. The Plaintiff
is the only child of the deceased and took the
position that the Last Will and Testament of
her father should be filed for probate. The
defendant took the position that the Last will
and Testament of the deceased was not appli-
cable because of her marriage to him, that
rendered the Last Will and Testament of the
deceased, Fred William Kingdon, Jr., null and
void.

The issue that developed upon which this
lawsuit was based is whether or not defendant
is a lawful wife under the laws of the State
of Georgia of the deceased, Fred William
Kingdon, Jr. This case came before the

Superior Court of Fulton County, Georgia,
instead of being handled by the Probate Court
of Fulton County, because of the decision of
the Georgia Supreme Court in the case of
Logan vs. Nunnelly, 230 Ga. 588 (1973), which

held that a procedural attack of a foreign di-

vorce decree could not be maintained in the
Probate Court which, prior to the Civil Prac-
tice Act, could entertain such an attack.

Therefore, the above styled case is re-
lated to the proceeding of the Probate Court
of Fulton County, Georgia, in which the ques-
tion of inheritance is still pending.

The plaintiff filed a Motion for Summary
Judgment based on deposition of the defendant
and various affidavits, and the pleadings.

The facts as presented show the follow-
ing:

On September 12, 1974, Fred William
Kingdon, Jr. died a resident of Fulton County,
Georgia. At Mr. Kingdon's death his sole and
only child survived him, who is the Plaintiff
in this action. On the death of Fred William
Kingdon, Jr. he left a certain document pur-
porting to be his Last Will and Testament
which was executed on May 27, 1966. Under
said document he bequeathed his entire estate
to his daughter, Carol Kingdon Foster, and
named her Executrix.

This purported Last Will and Testament
of Fred William Kingdon, Jr. was in the
custody of defendant who refused to offer it
for probate or file it with the Fulton County
Probate Court. Instead, defendant filed her
Application for Letters Testamentary and

appointment as Administratix of the estate of
Fred William Kingdon, Jr., alleging that he
died intestate. Before the return date on
defendant's application for Letters of Admin-
istration, the plaintiff filed a caveat to
the application and, subsequently, on February
12, 1975, filed this equitable action.

Defendant contends that the Last Will
and Testament of Fred William Kingdon, Jr. is
null and void since it was executed prior to
her marriage to Mr. Kingdon on June 12, 1968.
Defendant did, in fact, go through a cere-
monial marriage with the deceased on that
date.

Prior to this ceremonial marriage that
took place between defendant and decedent,
the defendant had married one Harry Ragan
Eidson on November 22, 1951 in Fulton County,
Georgia.

On July 27, 1961, the Inferior Court of
Geneva County, Alabama, entered a divorce
decree in favor of defendant from Harry Ragan
Eidson, which on its face dissolved her
Georgia marriage to Harry Ragan Eidson. In
connection with this divorce decree, defen-
dant executed an affidavit stating that she
was a bona fide resident of the State of
Alabama, giving no facts to support this
statement.

In obtaining this divorce, defendant
traveled to the City of Roanoke, Alabama, and
met with a lawyer there on two separate occa-
sions. Defendant did not appear at the di-
vorce proceedings in Geneva County, Alabama,
nor did she ever travel to Geneva County,

Alabama, to obtain the divorce. All the pro-
ceeding papers were signed by the defendant
at an attorney's office located in the City
of Roanoke, Alabama.

The petition for divorce was filed in
the Inferior Court of Geneva County, Alabama,
on July 26, 1961, one day before the final
decree was entered. At the time defendant
filed said complaint in the Inferior Court
of Geneva County, Alabama, seeking a divorce,
she was a registered voter in Cobb County,
Georgia, and under an employment contract
with the City of Atlanta Public Schools,
State of Georgia, for the school year begin-
ning in the fall of 1961. Defendant testi-
fied by deposition that she was in Alabama
for approximately one month and that she went
to Alabama for the purpose of determining if
she could find a suitable place to establish
a dog kennel. If she was successful she
intended to move to the State of Alabama.

She further testified that she was unsuccess-
ful in her search and did not move to the
State of Alabama. She further stated that
she had not established her home anywhere in
the State of Alabama nor lived in any partic-
ular place in Alabama, but was constantly
moving around in her unsuccessful search for
finding a suitable place to establish a
kennel.

The evidence further shows without dis-
pute that defendant was enrolled as a resi-
dent student at Georgia State University
during the summer of 1961, and also enrolled
in the fall of 1961 as an in-State resident
student. The evidence further shows, with-
out dispute, that in order for one to qualify
to be an in-State resident student at Georgia

8

State University during this time, one must
have lived in the State of Georgia for 12
consecutive months prior to the quarter in
twhich a student enrolled as a resident student.
By her enrollment at Georgia State University
as an in-State resident student, defendant

was affirmatively representing to the Georgia
State University that she had been a resident
of the State of Georgia for 12 consecutive
months prior to the time of enrollment.

Harry Ragan Eidson, the person to whom
defendant was married on November 22, 1951,
was alive on the day that Fred William
Kingdon, Jr. married the defendant and, fur-
thermore, Mr. Eidson was alive when the above
styled action was instituted by the plaintiff
against the defendant.

Immediately following the death of Fred
William Kingdon, Jr., plaintiff questioned
the existence of a divorce decree from Harry
Ragan Eidson, and defendant, in response to
this, produced a decree granted by the In-
ferior Court of Geneva County, Alabama.
Immediately thereafter, plaintiff filed a
caveat to defendant's application for letters
of administration.

The plaintiff, by way of deposition,
immediately sought to determine the facts
surrounding the divorce decree rendered by
the Court in Geneva County, Alabama. After
obtaining those facts from the defendant,
plaintiff promptly filed this action in the
Superior Court of Fulton County, Georgia, to
overturn that divorce decree.

CONCLUSIONS OF LAW

"A divorce decree obtained in a

9

sister State in consequence of
false representations by the par-
ties as to their residence in that
State is a nullity and may be
collaterally attacked in any Court
of this State by any person not a
party thereto who is materially
and adversely affected by such
decree."

Cole vs. Cole, 221 Ga. 171 (1965).

Carol Kingdon Foster, the plaintiff, is
the daughter of the deceased and the sole
beneficiary under his Last Will and Testament
and has a material interest in the matter so
that she certainly has standing to attack the
Alabama divorce decree as fraudulent, inas-
much as if it be a valid decree, it effec-
tively disinherits her against the wishes of
her father. Grace vs. Carter, Exec., 207
Ga. 308.

The Supreme Court of Georgia has consis-
tently recognized the right of parties to in-
quire as to the validity of foreign divorce
decrees in situations involving right of
inheritance of a deceased person in the de-
termination of who are the proper heirs of
the deceased. The most recent such inquiry
is found in the case of Azar, Adm., vs.
Thomas, 206 Ga. 588 (1950), when the Supreme
Court of Georgia authorized an inquiry into
the facts almost identical to the case at bar.

The Azar, supra, case involved a suit in
equity brought by the Administrator of the
estate of Mary A. George, deceased, seeking
to cancel an alleged void marriage between
the deceased and the defendant, and to re-
cover assets belonging to the estate of the

10

deceased, which assets were being held by

the defendant. Plaintiff, in establishing

the invalidity of the 1932 marriage, intro-
duced evidence that tended to show that a
Tennessee divorce proceeding which appeared

on its face to dissolve the previous marriage
of the defendant was invalid because the de-
fendant had practiced a fraud on the Tennessee
Court. The Supreme Court found that the de-
fendant was not legally domiciled in Tennessee
and Tennessee relied on constructive notice

in granting the divorce in an ex parte pro-
ceeding. The Trial Judge had refused to con-
sider the evidence as to fraud in the pro-
curement of the divorce in Tennessee and

there was a judgment rendered for the defen-
dant. The Georgia Supreme Court reversed the
Trial Court, and said the following:

"A foreign decree of divorce may
be collaterally attacked upon the
grounds of fraud in its procure-
ment and lack of jurisdiction
without offending the full faith
and credit clause of the Constitu-
tion of the United States. . ."

The case at bar involves the same type
of inquiry as was expressly allowed in Azar
vs. Thomas, where the Supreme Court of Georgia
expressly authorized such an inquiry by a
third party not in privity with the defendant
or the former spouse of the defendant.

Under the decisions of this State (Cole
vs. Cole, supra,) this Court clearly has
authority to inquire into facts surrounding
the jurisdiction of the Courts of the State
of Alabama to award judgments, and if it de-
termines that the facts are such that they

1l

clearly show that there was no jurisdiction
of the Alabama Court, to award a divorce be-
tween the parties, it is required to treat
the divorce decree as void.

The full faith and credit clause of the
Constitution of the United States requires
that judgments of sister states can only be
attacked for lack of jurisdiction when such
collateral attack of judgment is authorized
in the State which rendered the decision.
Clearly, Alabama authorizes collateral
attacks of its judgments. This fact was most
recently affirmed in the case of Zeanah vs.
Burger, 314 So.2d 700 at p.703 (Alabama
Court of Appeals 1975), where the Court
stated:

"Without deciding whether defending
a petition permit for mandamus for
enforcement of a judgment by plead-
ing want of jurisdiction as a
collateral attack, we find no prob-
lem in holding that even ina
collateral attack, lack of juris-
diction of the Tribunal rendering
the judgment void is available as

a defense.”

The Alabama Supreme Court further stated
in the case of Crump vs. Knight, 56 So. 625:

"It is well settled law that
every Court has full authority
to determine whether or not it
has jurisdiction of a subject
matter in the parties presented
by pleadings and evidence and if
it once determines that it is
without jurisdiction of the

12

subject matter, it should not
proceed further. Courts acting
without authority can impart no
validity to their proceedings
and their judgments are assail-
able in any proceeding."

Furthermore, in the case of Dawkins vs.
Hutto, 131 So. 228 (1930), the Alabama
Supreme Court further stated:

"Judgment void for want of
jurisdiction is open to contra-
diction or impeachment in col-
lateral proceedings."

The most often cited expression of the
Alabama Courts' ability to inquire into the
validity of its decrees for lack of juris-
diction is the case of Hardigan vs. Hardigan,
272 Ala. 670, 128 So.2d 725. An examination
of this case reveals precisely a situation
analogous to the case at bar. In that case,
the parties had no standing to attack direct-
ly the divorce decree. The suit involved a
petition for modification of a divorce de-
cree. In the proceedings before the Court
it became apparent to the Judge on the facts
as presented by both parties that neither
party resided in the State of Alabama at the
time the divorce decree was rendered. The
Court went on to state that:

"Irrespective of whether the
plaintiff is in a position to
attack the decree awarding
alimony to the defendant, such
decree cannot stand because we
have repeatedly held that where
a void decree is brought to the

13

attention of a Court, it is the
duty of the Court on its own motion
to vacate the same."

This rule has been most recently restated
by the Supreme Court of Alabama in the case
of Crisco vs. Crisco, 313 So.2d 529 (May 8,
1975), where the Alabama Supreme Court stated:

"A court is not without juris-
diction to exercise its inherent
power to set aside and vacate any
time a judgment because of super-
vening invalidity based on fraud
practiced on the Court by a

party in the procurement of a
judgment apparent on the face

of the record.

"A natural and logical extension
of this proposition is the hold-
ing of this Court in Hardigan vs.
Hardigan, 227 Ala. 67, 128 So.2d
725 (1961). There, in upholding
the lower Court's order vacating
an original divorce decree, the
rule was laid down to the effect
that where jurisdiction of a
Court was fraudulently invoked
by the parties and this fact be-
came apparent in a subsequent
proceeding, although neither
party attacked the validity of
the original decree which is
regular on its face, the Court
is empowered ex mero motu to set
aside the decree.

"While the facts on which Hardigan
is based are restrictive, the
principle subordinate to its holding

14

is not so limited. That
principle authorized the Trial
Judge in the instant case, on
discovery of the facts not re-
vealed until the filing of the
petition for rehearing, to
correct his own motion for
fraudulent use of a judicial
process. We hold that the
action of the Trial Court in
vacating the original decree
of divorce and ordering a new
trial was necessary and justi-
fied in the exercise of its
inherent powers to protect the
integrity of its judicial pro-
ceedings."

Since judgments are subject to collateral
attack in Alabama, the constitution command
of full faith and credit as implemented by
Congress, requires that it be subject to such
attack in any other State. Dupree vs. Duke,
375 U.S. 106, 11 L.Ed. 2d 18 ); State
of New York, el rel Handley vs. Handley, 330
U.S. 16, 91 Ba 1133. 1133.

As to the issue of whether or not defen-
dant was domicile of the State of Alabama, it
is needless to belabor the facts in this case.
The facts, without contradiction, demand a
conclusion that defendant never established
a domicile in the State of Alabama and, there-
fore, the Alabama Court did not have juris-
diction to grant her a divorce decree from
Harry Ragan Eidson. As was stated by the
Supreme Court of Georgia in the case of Clark
vs. Hammock, 228 Ga. 157 at 158, quoting an
Old decision of Worsham v. Ligon, 144 Ga.

707, 71ll:

15

"If a person leaves the place

of his domicile temporarily, or
for a particular purpose, and
does not take up an actval resi-
dence elsewhere with the avowed
intention of making a change in
his domicile, he will not be
considered as having changed his
domicile."

Without contradiction defendant's testi-
mony reveals that she went to the State of
Alabama for the purpose of locating a place
to establish a dog kennel which she could
handle. She was unable to locate such a
place and, therefore, returned to the State
of Georgia. Clearly, her intention to move
to Alabama was conditional and, further, she
did not take up an actual residence in the
State of Alabama.

Defendant asserts that the question of
residence and domicile are factual ones and
must be submitted to the jury and cannot be
decided as a matter of law. However, the
Court of Appeals in the case of Pugh vs.
Jones, 131 Ga.App. 600 at 605 points out
that such a rule does not apply in cases
where the evidence establishes a plain and
plausible case that should be determined by
the Court as a matter of law. The Court
goes en to state:

"Thus, in Commercial Bank vs.
Pharr, 75 Ga. App. 364, 377

(43 SE2d 439) this court held
that ‘Although the rule is well
settled in this state that
domicile or residence is one

of the facts for the jury in

16

cases where the evidence is

in conflict [cit.], on the
other hand, where the evi-
dence is not in conflict, we
are of the opinion that this
is a question of law for this
court." See also Patterson v.
Patterson, 208 Ga. 7, 13

(64 SE2d 441) where the Supreme
Court held '. . .[{I]f the evi-
dence demands a finding that
there has not been a change of
domicile, the court may by
proper instructions withdraw
the question from the jury.'"

See also: Knight vs. Bond &
Brother, 112 Ga. 828 (1900).

Defendant finally asserts that plaintiff
is not entitled to Summary Judgment because
of the doctrine of laches which bars her
from attacking the foreign divorce decree.
The evidence before this Court clearly shows
that the defense of laches is not valid in the
case at bar, since this Court knows of no more
appropriate and expeditious method that could
have been used by the plaintiff in raising
the issues and determining the facts in the
case at bar. The facts show expeditious pur-
suit of the claim rather than delay.

For the above stated reasons, plaintiff's
Motion for Summary Judgment is granted, and
consequently, defendant's Motion for Summary
Judgment is denied.

WHEREFORE, judgment is granted in favor
of plaintiff and this Court holds that:

17

(a) The divorce decree granted to de-
fendant by the Inferior Court in Equity of
Geneva County, Alabama, dated July 27, 1961,
is null and void;

(b) The marriage between defendant and
Fred William Kingdon, Jr. on June 12, 1968, is
null, void and of no effect;

(c) Defendant is ordered to file the
Will of Fred William Kingdon, Jr. with the
Probate Court of Fulton County, Georgia, with-
in thirty (30) days of this Order;

(ad) The defendant is required to turn
over to plaintiff all of the property and
assets belonging to Fred William Kingdon, Jr.
which are in her possession; and further, she
is enjoined from receiving, spending, dis-
bursing and in any way disposing of any pro-
perty or assets of Fred William Kingdon, Jr.
and received by defendant by virtue of being
considered his wife and widow; and

(e) The Court costs of this action
shall be charged against the defendant.

This, the Mbrtaay of eh deuabege 1976.

Jydge,
Fulton Superior Couft,A.J.C.

18

APPENDIX "B"

STATUTES AND CONSTITITIONAL PROVISIONS IN-
VOLVED

Art. IV, Sec. I of the United
States Constitution:

Section 1. Full Faith and
Credit.

Full Faith and Credit shall be
given in each State to the public Acts,
Records, and judicial Proceedings of every
other State. And the Congress may by
general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall
be proved, and the Effect thereof.

Amendment XIV, Par. 1 of the
United States Constitution.

Section l. Citizens of the United
States.

All persons born or naturalized in
the United States, and subject to the
jurisdiction thereof, are citizens of the
United States, and of the State wherein
they reside. No State shall make or en-
force any law which shall abridge the pri-
vileges or immunities of citizens of the
United States; nor shall any State de-
prive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction
the equal protection of the laws.

ale

28 U.S.C. §1738 (1948)

1738. State and Territorial
statutes and judicial proceedings - Full
faith and credit, --

The Acts of legislature of any
State, Territory, or Possession of the
United States, or copies thereof, shall be
authenticated by affixing the seal of such
State, Territory or Possession thereto.

The records and judicial proceed-
ings of any court of any such State, Ter-
ritory or Possession, or copies thereof,
shall be proved or admitted in other courts
within the United States and its Terri-
tories and Possessions by the attestation
of the clerk and the seal of the court an-
nexed, if a seal exists, together with a
certificate of a judge of the court that
the said attestation is in proper form.

Such Acts, records and judicial
proceedings or copies thereof, so authen-
ticated, shall have the same full faith
and credit in every court within the
United States and its Territories and
Possessions as they have by law or usage in
the courts of such State, Territory or Pos-
session from which they are taken.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1467%3A1. Public record. Not legal advice.