ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS
White, McKenna, Holmes, Van Devanter, Pitney, McReynolds
MR. JUSTICE McREYNOLDS delivered the opinion of the court.
Plaintiff in error, Holmes, a lawyer practicing before the courts of Kansas, maintains that judgment has been rendered against him, in a cause where he appeared as counsel, without notice or opportunity to defend, contrary to inhibitions of the Fourteenth Amendment.
Acting for one Hess, he instituted proceedings against defendant in error in the District Court, Woodson County, Kansas, seeking personal judgment on a note and foreclosure of mortgage on real estate. Judgment was rendered November 16, 1910, for $2,612.00; and the sheriff sold the land January 19, 1911, to Hess for $1,700.00, subject to redemption within eighteen months. An assignment prepared by Holmes immediately transferred the certificate of purchase to C. F. Harder, but no public record of this transaction was made until August 24, 1912.
An insured building on the mortgaged property burned shortly before sheriff's sale and, upon motion presented by Holmes, the court made an order "restraining and enjoining the said defendant Conway from in any manner disposing of said insurance policies upon the buildings on said mortgaged premises, or disposing of any moneys
collected." Questions arose concerning validity of policies and following an agreement between Holmes and Hogueland, attorney for Conway, a compromise was effected under which the companies paid $1,075.00 -- $500.00, February , 1911, and $575.00, March , 1911. Conway and his attorney claimed that under the agreement this sum was to be applied towards redeeming the land. Holmes claimed it was to go towards discharging the personal judgment.
On February 24, 1911, $500.00 of the insurance money was paid into court by Hogueland. The clerk gave a receipt reciting, "the same being in part payment of the redemption in the above entitled cause." On the next day this sum was withdrawn by Holmes and, as he claims, remitted to Hess. On March 31, 1911, Hogueland delivered a draft for remainder of insurance money to Holmes, who claims that he remitted proceeds to Hess. Conway paid into court $738.03, July 15, 1912, which, with the $1,075.00 above referred to, made up amount necessary to redeem property sold by sheriff, and the clerk gave him a redemption receipt.
Exactly when Holmes began to represent Harder is not clear -- certainly it was not later than June 1, 1911. In August, 1912, Holmes as counsel entered a motion for an order directing the sheriff to convey to Harder the land theretofore sold. Conway resisted, claiming that by paying the necessary sum he had redeemed the property. Solution of the issue presented depended upon professional conduct of Holmes, and his affidavits were put in evidence. The motion was denied; but a rehearing was granted and took place in February, 1913. Additional proofs, including two more of his own affidavits, were offered by Holmes, then present in court, and taken under consideration. April 30, 1913, Holmes still being present, the court denied motion for instruction to sheriff and further "ordered, adjudged and decreed, that the plaintiff A. E.
Hess and S. C. Holmes, his attorney of record, within thirty days from this date, . . . return to and deposit in the office of the clerk of this court, the sum of One Thousand and Seventy-five ($1,075.00) Dollars, together with interest . . . down to the day such sum is paid into the office of the clerk of this court . . . to be used in the redemption and cancellation of certificate of purchase issued by the sheriff of Woodson County, Kansas, to A. E. Hess, plaintiff herein."
Without suggesting to the trial court that he had been surprised or prejudiced because no formal notice had been served upon him or that he wished the order set aside or desired to present additional proof or take any further action whatsoever, and when the thirty days were about to expire, Holmes entered appeals to the Supreme Court of the State for himself and Harder, and on very general assignments of errors, ...