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(92 Kan. 787, 142 Pac. 253.) the return of money belonging in its might possibly include impeaching own custody.

evidence. The' appellants would By the motion directed against then likely desire to make a showing the sheriff filed for his client, Hard- in rebuttal.

in rebuttal. The result would be er, the attorney himself instituted that the court would have before it the investigation of his professional for determination a case which the conduct. That was the only sub- district court could not identify as stantial issue in the case, and he was one which it had decided, and so this fully heard, both as a witness and as court would be plunged into an exeran attorney, in justification of his cise of original, and not of appellate,

The evidence which justi- jurisdiction. fies the denial of an order against In the case of Re Burnette, 73 the sheriff justifies the order against Kan. 609, 85 Pac. 575, the distinchim.

tion between original and appellate The judgment of the District jurisdiction was pointed out, as well Court is affirmed.

as the lack of power on the part of A petition for rehearing having

the legislature to been filed, Burch, J., on November

confer original ju- jurisdiction14, 1914, handed down the following risdiction on this power of additional opinion (93 Kan. 246,

court. The Consti144 Pac. 205):

tution creates the court as it crePetitions for a rehearing have

ates the legislature, and that instrubeen filed by Harder and by Holmes.

ment, which both the court and the In both petitions complaint is made legislature must respect and obey, of the refusal of this court to dis- expressly limited the court's original turb the findings of the district court jurisdiction to proceedings in quo upon the facts. Not only is the evi- warranto, mandamus, and habeas dence offered in the district court

corpus, and granted to the legislareargued, but a mass of new evi

ture no power to confer any but apdence is presented here for the first pellate jurisdiction. Const. art. 3, time in an effort to show that the

3. The exceptional and extraordiconclusions of the district court con

nary character of the court's origcerning the facts should be disap: when the nature of the proceed

inal jurisdiction becomes apparent proved. As might be expected if such a practice were tolerated, the ings specified in the Constitution witnesses for the appellants care

is considered. A few years before

the Constitution of Kansas was fully fill up the gaps and strengthen the weak places in the case made by framed, the supreme court of Wistheir former testimony. Presum- consin, discussing this subject,

said: “This class of writs, it ably this course is taken pursuant to § 580 of the Civil Code (Gen. Stat.

would seem, appertain to, and 1909, § 6175), which reads as fol

are peculiarly the instruments of, lows: "In all cases except those

the sovereign power, acting through triable by a jury, as a matter of

its appropriate department, prerogconstitutional right, the supreme

atives of sovereignty, represented in court may receive further testi- England by the King, and in this mony, allow amendments of plead- country by the people in their corings or process, and adopt any pro- porate character, or, in other words, cedure not inconsistent with this

the state, and from their very naact which it may deem necessary or

ture, from their peculiar character, expedient for a full and final hear- functions, and objects, to appertain ing and determination of the cause.”

to, and appropriately belong to, the This court cannot consider the supreme judicial tribunal of the new evidence. If it had a thought state.

These writs differ esof doing so it would be obliged to sentially, in their character and obgrant the adverse party time to pro jects, from ordinary writs issued by duce countervailing evidence, which the courts in the regular and usual

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administration of the law between theory of constitutions like that of parties. They go to accomplish Kansas. Indeed there can be no dif. peculiar and specific objects, carry- ference of opinion that the true in. ing with them the special mandate tention was to create an appellate of the sovereign power, addressed to

court having power to expound the the person, corporation, or officer re- law, supervise the conduct of in

ferior tribunals, and correct errors quiring them to do or not to do, to proceed or to desist, to perform the

in their proceedings, but with no duty required by law, or to abstain original jurisdiction except in the from the exercise of powers without extraordinary matters referred to.

Neither can there be any difference lawful authority, etc. They bear no

of opinion that the legislature is resemblance to the usual processes

powerless to add to that original of courts, by which controversies

jurisdiction. between private parties are settled

If the statute quoted were to be by the judicial tribunals of every interpreted as giving this court grade.” Atty. Gen. v. Blosson, 1

power, on appeal, to determine equiWis. 317, 320.

ty cases and others not triable by A few years after the Constitu- jury as a matter of right, in the tion of Kansas was adopted, the su

same way that the district court depreme court of Missouri, discussing termines them, it

Appeal-trial the same subject, said: “It is very would be unconsti- of facts-conplain that, were it not for the ex- tutional It must,

stitutionality. press exceptions contained in the therefore, be interpreted merely as Constitution, this court could exer- providing this court with adequate cise no original jurisdiction.

means for exercising its true appelThis court was designed to be strict

late jurisdiction. The nature of the ly appellate in its character, duties, court's function is not changed, and and functions, with certain marked the scope of its original jurisdiction

and definite exceptions. The fram- is not enlarged, but ers of the Constitution doubtless saw the exercise of its construction

Statutethat contingencies might arise when appellate jurisdic- anthorizing

appellate it would not only be fit, but indis- tion is facilitated by court to try pensably necessary, that this court giving it command should interpose its process in the of aids to review supplemental to first instance. There may be oc- the strict record of the cause and casions when not only the interests sufficient to meet the exigencies of of the citizen, but the safety and

any case. welfare of the state, may depend up- Sometimes the court is in need of on the issuance from this tribunal of extraneous evidence respecting some its original remedial process; and situation or fact to enable it to defor such exigencies provision was termine, not the propriety of the made. Habeas corpus, mandamus, conduct of the district court, but the quo warranto, prohibition, etc., are nature of the judgment to be directhigh prerogative writs, emanating ed. Sometimes a document, or pubfrom this court by direct applica- lic record, or other item of evidence tion and by the authority of the sov- of like character, material to a propereign power of the state. They are er determination of the appeal and only issued when applied for in a substantially incontestable, is called proper case, and are wholly variant for, or is examined if produced, and from that process of summons or then is treated in the same way as an notice by which one party brings an admission of the parties would be adverse party into court to deter treated if found in the record. These mine a private right or to settle a instances are illustrative, and, no matter of ordinary litigation.” Vail doubt, many occasions will present v. Dinning, 44 Mo. 210, 214, 215. themselves when it will be import

These quotations are sufficient to ant for the court to avail itself of illustrate the political and legal knowledge of some fact not estab



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(93 Kan. 246, 144 Pac. 205.) lished at the trial in order that it quoted above as the foundation of its may make just disposition of an ap- power to prevent a miscarriage of peal.

justice under the peculiar and ex. In the case of Caldwell v. Modern traordinary circumstances of the Woodmen, 90 Kan. 175, 133 Pac. Caldwell Case. In the case of Ridge 843, Jane Caldwell recovered judg- v. Manker, 67 C. C. A. 596, 132 Fed. ment on a beneficiary certificate is- 599, it is said, citing a long list of sued by the Modern Woodmen of authorities: "An appellate court America, insuring the life of her may avail itself of authentic evihusband, W. H. Caldwell. The proof dence outside of the record before it, of death consisted in proof of ab- of matters occurring since the desence for a sufficient length of time cree of the trial court, when such and under such circumstances as to course is necessary to prevent a misraise a presumption of death. While carriage of justice,

Appealthis court still had possession of the to avoid a useless extrinsic case on appeal, the defendant in the circuity of proceedaction not only furnished evidence ing, to preserve

ing, to preserve a jurisdiction lawshowing that Caldwell was still fully acquired, or to protect itself alive, but produced the man himself. from imposition or further prosecuThe court granted a new trial as to tion of litigation where the controthe single issue of death, with direc- versy between the parties has been tion that if the issue were deter- settled, or, for other reasons, has mined favorably to the defendant ceased to exist." 67 C. C. A. 598. judgment should be rendered ac- Whether the statute might have cordingly. In the opinion it was been invoked in the Caldwell Case said: “This court cannot determine,

or not, it cannot, consistently with it is true, from the new evidence, the

constitutional validity, be construed question whether Caldwell is living.

to authorize a prolongation or reIf if that issue is to be retried, it must newal of the trial of issues of fact be retried in the district court, but, in this court on appeal. The disin the exercise of its appellate juris- trict courts are established and are diction, this court may, and in the equipped for the purpose of investivery unusual situation presented gating and determining issues of should, in order to prevent a failure fact, and parties must prepare their of justice, consider the new evi

cases for trial there. A method of dence, in determining whether a

obtaining a continuance is prenew trial of that issue should be granted. This evidence, uncontra

scribed if a party cannot secure his

evidence in time for trial when his dicted as it is, shows that a mistake

case is reached. When the trial ocwas made in a finding of a fact essential to support the judgment. In

curs he may shape his evidence as view of the evidence presented at

he desires, but he is bound by his the trial, and the whole situation, it choice, and cannot, in the event of cannot be held that the defendant is defeat, better his case by offering precluded from proving the fact that more proof or different proof in Caldwell is living because of its fail- this court on appeal. In case of acure to discover and produce the evi- cident, surprise, want of fair oppordence at the trial. It may be con- tunity to produce evidence, or the ceded that when the end of orderly discovery of new evidence, a new judicial processes is reached, an ad- trial may be obtained upon seasonjudication, although based upon able application to the district court; mistake, is final. Still a miscarriage but after the tribunal created for of justice will not be tolerated so the purpose of making final deterlong as the court by the use of such mination of issues of fact has perprocesses can apply a remedy." 90 formed that function, original inKan. 177.

vestigation of such issues is closed, The court did not cite the statute and it is no ground for reversal that

-power to hear.

evidence exists which would have to the client precisely as it imputes turned the scale in favor of the de- the knowledge of the agent, C. F. feated party if it had been uncov- Harder, to his principal. Having ered in the district court.

knowledge of the facts, and having In this case Harder, by his attor. kept silent until after the period of ney, Holmes, brought on a trial of redemption had expired, Harder is the issues of fact in August, 1912, estopped from claiming that the last and was defeated. The court grant- payment, which he suffered Conway ed an application for a rehearing, to make in the belief that it would and another full trial occurred in effect redemption, did not accomFebruary, 1913, when the parties ex- plish redemption. tended their evidence to their own Holmes and Hogueland are not satisfaction. The appellants were in accord with respect to the nature then in communication with Hess, of their agreement. This court has and took his affidavit to be used as before it merely their affidavits and evidence at the second hearing the rest of the proof. The district Every other witness whose testi- court had before it the same affimony is offered here was a wit- davits, and the rest of the proof, ness at that hearing; all the evi- but the affidavits were those of two dence now tendered to this court of its regular practitioners with was available then; the issues now whose conduct and habits of mind it are identical with what they was perfectly familiar. Certainly were before; the appellants have this court is not qualified to questwice had a day in court in which tion the weight given the stateto produce their proof; and the con- ments of the two attorneys by the

troversy over the district court. It may be noted here

facts is ended. It that earlier in the same cause is said that, since the case is pre- Holmes


without taking sented here in substantially the thought, he says, an affidavit very same form it bore in the district wide of facts of which he had full court, this court should make an in- personal knowledge. dependent estimation of the facts, In support of Harder's petition giving due consideration to the ac- for a rehearing the rule is invoked tion of the district court. That that knowledge of an attorney will course has been pursued as far as not be imputed to his client when possible, but situations were en- the attorney acts fraudulently, or is countered which the district court so interested in the transaction that was better able to solve than this he would naturally withhold the incourt.

formation. There is no indication The question of first importance that Holmes diverted the redempin the case is how the insurance tion money for the purpose of permoney was to be applied. Did sonal gain to himself, and the court Holmes and Hogueland agree that it declines to express itself upon the should be applied to satisfy the ex- matter of fraud further than it has cess judgment or to the redemption already done. If redemption were of the real estate? . If the agree- not effected, Hess would have his ment were that the insurance money judgment paid in full and Harder should be applied to redeem the real would have the land. That situaestate, it is idle to contend that tion did not necessarily preclude the Holmes did not have the entire in- attorney from speaking. surance money episode in mind In the original opinion an ellipsis when, shortly afterwards, he began occurs which makes the court say to represent Harder's interest in the that the certificate of the clerk, sumproperty. The law does not permit marizing the appearance of Holmes him to deny that he performed his for Harder shown by the dockets of duty to his client by divulging the the district court which were ininformation he possessed, and im- troduced in evidence, was itself read putes the knowledge of the attorney in evidence. The court understood (93 Kan. 246, 166 Pac. 205.) the record, which was without am- had diverted from its treasury funds biguity. In this connection it may arising from the litigation. Then be stated that the court regarded the attorney asked for another hearprevious employments of Holmes by ing, which was granted. While on Harder as unimportant. Indeed, the the face of the record he appeared employment in June, 1911, might be as the attorney for Harder, the subleft out of account, since the judg- stance of the issue still was what the ment is supported by proof that F. character of his professional conduct H. Harder, the undisputed agent of had been. The nature of the charge C. F. Harder, was fully advised, be- against him had been fully disclosed fore redemption was completed, of at the first trial. It appeared in dethe fact that the insurance money tail and in writing in the affidavits had come into the hands of Holmes. filed in the case. It was that charge

Holmes still insists that the order which he knew he must meet at the upon him to restore to the clerk the second trial, which he had secured. redemption money which came into He had from August of one year to his possession was irregular for in- February of the next year in which formality of procedure. The form to prepare. To say that he did not of procedure in summary disciplin- make due prepa-ation would be to ary proceedings is not controlling so impute to him unfaithfulness to

long as the essen- Harder. He had command of the Attorneydiscipline tials of fair notice case, took such testimony from his procedure.

and opportunity to former client, Hess, as he desired, be heard are present. In this case and presented such other evidence Harder's right to a deed depended as he desired, including additional upon what his attorney's profes- affidavits of his own. At the final sional conduct had been. That was trial he was given full opportunity the primary issue tendered by the to defend in his own way and to an motion to require the sheriff to extent satisfactory to himself. Conmake a deed, and the attorney him- sequently every requirement of due self filed the motion and brought on process of law has been satisfied, the investigation. A trial was had and the court was not called upon in which all the facts were de- to go through the ceremonious perveloped. Holmes and Hogueland formance of instituting and prosegave their versions of the agree- cuting another proceeding, for the ment with respect to the application sake of stating the charges, giving of the insurance money. The money notice, and having a hearing, before was traced, step by step, from the entering the disciplinary order. insurance company through Holmes All the matters presented by the to Hess. Holmes was necessarily petitions for a rehearing have been compelled to describe and to defend duly considered by the court, and his conduct, and did so by his own both petitions are denied. testimony and by other evidence Affirmed by the Supreme Court which he adduced. The result was of the United States, June 12, 1916 that, in legal effect, he stood before (241 U. S. 624, 60 L. ed. 1211, 36 the court as one of its officers who Sup. Ct. Rep. 681).

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