Hess v. Conway

• Decision Date: 14 November 1914
• Docket Number: 18,792
• Citation: 93 Kan. 246,144 P. 205
• Parties: A. E. HESS (C. F. HARDER and S. C. HOLMES, Appellants), v. E. S. CONWAY et al., Appellees
• Court: Kansas Supreme Court

144 P. 205

93 Kan. 246

A. E. HESS (C. F. HARDER and S. C. HOLMES, Appellants), v. E. S. CONWAY et al., Appellees

No. 18,792

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Appeal from Woodson district court; OSCAR FOUST, judge. Opinion denying a rehearing filed November 14, 1914. (For original opinion of affirmance see 92 Kan. 787, 142 P. 253.)

Petitions denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. SUPREME COURT--Distinction Between Original and Appellate Jurisdiction. The case of In re Burnette, 73 Kan. 609, 85 P. 575, so far as it points out the distinction between original and appellate jurisdiction and the lack of power on the part of the legislature to confer original jurisdiction on this court, followed.

2. SAME--Section 580 of Civil Code, Relating to Further Testimony in Supreme Court, Construed. Section 580 of the civil code, providing that in all cases except those triable by jury as a matter of right, this court may, on appeal, receive further testimony and adopt such procedure as may be necessary or expedient for a full and final hearing and determination of the cause, would be unconstitutional if construed to authorize a prolongation or renewal of the trial of issues of fact in this court on appeal.

3. SAME. To save the section from unconstitutionality it must be interpreted merely as providing this court with adequate means for exercising its true appellate jurisdiction. The nature of the court's function is not changed and the scope of its original jurisdiction is not enlarged, but the exercise of its appellate jurisdiction is facilitated by giving it command of aids to review supplemental to the strict record of the cause and sufficient to meet the exigencies of any case.

4. SAME--When Further Testimony May Be Considered by Supreme Court. Without the aid of a statute this court may, in the exercise of its appellate jurisdiction, avail itself of authentic evidence outside the record to prevent a miscarriage of justice, to avoid a useless circuity of proceeding, to protect its jurisdiction, to protect itself against imposition where the controversy has been settled or for other reason no longer in fact exists, and perhaps under other peculiar and extraordinary circumstances.

5. SAME--Further Testimony Not Considered Under the Facts of This Case. In this case a trial of the issues of fact occurred in the district court in August, 1912. A rehearing was granted, and another trial occurred in February, 1913, when the parties extended their evidence to their own satisfaction. Evidence which was available then and which merely supplements the proof offered in the district court is now tendered to this court. Held, the court is not authorized by section 580 of the civil code to receive and consider the evidence, and no occasion exists for departing from the rule that after the district court, which is created and equipped for that purpose, has made a final determination of the issues of fact in a cause, original investigation of such issues is closed.

6. PRACTICE--Disciplining Attorneys--Form of Procedure Not Material. The form of procedure which results in an exercise of the disciplinary power of a court over one of its attorneys is not material to the validity of the order, so long as the essentials of fair notice and opportunity to be heard are observed, and in this case it is held that every requirement of due process of law was satisfied.

7. Rehearing Denied. Upon reconsideration of the entire cause the original decision is adhered to.

C. W. Shinn, of Neodesha, S. C. Holmes, of Yates Center, Leonard S. Ferry, Thomas F. Doran, and John S. Dean, all of Topeka, for the appellants.

G. H. Lamb, and W. E. Hogueland, both of Yates Center, for the appellees.

OPINION

OPINION DENYING A REHEARING.

BURCH J.

Petitions for a rehearing have been filed by Harder and by Holmes. In both petitions complaint is made of the refusal of this court to disturb the findings of the district court upon the facts. Not only is the evidence offered in the district court reargued, but a mass of new evidence is presented here for the first time in an effort to show that the conclusions of the district court concerning the facts should be disapproved. As might be expected if such a practice were tolerated, the witnesses for the appellants carefully filled up the gaps and strengthened the weak places in the case made by their former testimony. Presumably, this course is taken pursuant to section 580 of the civil code, which reads as follows:

"In all cases except those triable by a jury, as a matter of constitutional right, the supreme court may receive further testimony, allow amendments of pleadings or process, and adopt any procedure not inconsistent with this act which it may deem necessary or expedient for a full and final hearing and determination of the cause."

This court can not consider the new evidence. If it had a thought of doing so it would be obliged to grant the adverse party time to produce countervailing evidence, which might possibly include impeaching evidence. The appellants would then likely desire to make a showing in rebuttal. The result would be that the court would have before it for determination a case which the district court could not identify as one which it had decided, and so this court would be plunged into an exercise of original and not appellate jurisdiction.

In the case of In re Burnette, 73 Kan. 609, 85 P. 575, the distinction between original and appellate jurisdiction was pointed out, as well as the lack of power on the part of the legislature to confer original jurisdiction on this court. The constitution creates the court as it creates the legislature, and that instrument, which both the court and the legislature must respect and obey, expressly limited the court's original jurisdiction to proceedings in quo warranto, mandamus, and habeas corpus, and granted to the legislature no power to confer any but appellate jurisdiction. The exceptional and extraordinary character of the court's original jurisdiction becomes apparent when the nature of the proceedings specified in the constitution is considered. A few years before the constitution of Kansas was framed, the supreme court of Wisconsin, discussing this subject, said:

"This class of writs, it would seem, appertain to and are peculiarly the instruments of the sovereign power, acting through its appropriate department; prerogatives of sovereignty, represented in England by the king, and in this country by the people in their corporate character, or in other words, the state; and from their very nature, from their peculiar character, functions and objects, to appertain to and appropriately belong to the supreme judicial tribunal of the state. . . . These writs differ essentially in their character and objects, from ordinary writs issued by the courts in the regular and usual administration of the law between parties. They go to accomplish peculiar and specific objects, carrying with them the special mandate of the sovereign power, addressed to the person, corporation or officer requiring them to do or not to do, to proceed, or to desist, to perform the duty required by law, or to abstain from the exercise of powers without lawful authority, etc. They bear no resemblance to the usual processes of courts, by which controversies between private parties are settled by the judicial tribunals of every grade." (The Attorney General v. Blossom and others, 1 Wis. 317.)

A few years after the constitution of Kansas was adopted, the supreme court of Missouri, discussing the same subject, said:

"It is very plain that were it not for the express exceptions contained in the constitution, this court could exercise no original jurisdiction. . . . This court was designed to be strictly appellate in its character, duties and functions, with certain marked and definite exceptions. The framers of the constitution doubtless saw that contingencies might arise when it would not only be fit but indispensably necessary that this court should interpose its process in the first instance. There may be occasions when not only the interests of the citizen, but the safety and welfare of the state, may depend upon the issuance from this tribunal of its original remedial process; and for such exigencies provision was made. Habeas corpus, mandamus, quo warranto, prohibition, etc., are high prerogative writs, emanating from this court by direct application and by the authority of the sovereign power of the state. They are only issued when applied for in a proper case, and are wholly variant from that process of summons or notice by which one party brings an adverse party into court to determine a private right or to settle a matter of ordinary litigation." (Vail, Contestor, v. Dinning, Contestee, 44 Mo. 210, 214, 215.)

These quotations are sufficient to illustrate the political and legal theory of constitutions like that of Kansas. Indeed there can be no difference of opinion that the true intention was to create an appellate court having power to expound the law, supervise the conduct of inferior tribunals, and correct errors in their proceedings, but with no original jurisdiction except in the extraordinary matters referred to. Neither can there be any difference of opinion that the legislature is powerless to add to that original jurisdiction.

If the statute quoted were to be interpreted as giving this court power on appeal to determine equity cases and others not triable by jury as a matter of right, in the same way that the district court determines them, it would be unconstitutional. It must, therefore, be interpreted merely as providing this court with adequate means for exercising its true appellate jurisdiction. The nature of the...