The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-02-13
KERN MAKES CHARGES
He Accuses Eli L. Ritter of Gross
Deception Before Supreme Court.
Is a Petition for Rehearing in
the Stehlin Case.

The celebrated Stehlin saloon case again
came to tine front yesterday in the Supreme
Court John ". Kern, attorney for Stehlin
and Heidi, fling a petition for a rehearing.
This case first came up between two and
three years ago, in the Circuit Court of
this county, where Mary E. Haggart and
Sarah C. Boutwell, filed suit for the sup
preston of a saloon owned by John II.
Stehlin and George Heidi, at the corner of
College avenue and Seventh street, alleging
that it was a common nuisance. The plant
ifs won their case in that court after a le-
gal fight that attracted widespread atten-
ton. The saloon people then appealed it to
the Supreme Court, and secured a reversal
of the judgment, Judge Elliott, who was on
the Supreme Bench at that time, writing
the opinion. Mrs. Haggart and Mrs. Both
we'll, who owned property in the vicinity of
the saloon, were persistent, however, and,
through their attorney. Eli F. Ritter, petit
toned for a rehearing, which was granted,
and the former judgment of the court re-
versed. After a rest of some months the
saloon keepers concluded to once more try
their fortunes before the States highest
tribunal, and yesterday attorney Kern ap-
piled for a rehearing on the ground that in
the opinion of his clients the court erred
upon the following points:
L In deciding a question not presented
by the original appeal, the same being a
question which was excluded from the con-
sideration Of the court, and counsel for
appellees, by the affirmative declarations
and conduct of the attorney of appellant in
this court on the original hearing.
Z. because the question decided was not
presented by the issues in the lower court
nor by the assignment Of errors in this
court
ALLEGES CERTAIN MISCONDUCT.
.. Because Eli F. Ritter, chief counsel
for the appellant, was guilty of the fol-
lowing misconduct whereby this court was
deceived as to the status of the case and
! the questions to be decided on rehearing:
"First-When this action was commenced
in the lower court, the said Ritter re-
| quested the attorney for appellee TO so
frame his answer to the complaint that
the bare question presented by the issue
would be whether the law of Indiana licens-
ing the sale of intoxicating liquor is con-
stitutional. stating repeatedly that the only
stitutionality of such law; and that the
said attorney for appellee, relying i'm
plicitly on said declarations, did file the
answer set out in the records for the pur-
pose Of accommodating said Ritter and
enabling him to test such question and
none other.
"Second-That when the demurrer to the
answer was submitted in the Circuit Court,
the said Eli +. Ritter declared to said
/ court mat the only question: presented Dy
his said demurrer was as to whether the
license law aforesaid was constitutional
and the ruling of that court was made
upon the faith of the declaration so made
in open court by said attorney.
'Third-That when, on appeal TO this court,
oral argument was being made in response
| Supreme Judges then sitting, and in the
presence of the full bench, as to what ques-
ton was presented by the record for de-
| cision, the said Ritter again explicitly de-
| clared to the court that the sole question
presented was as to whether the State had
the constitutional right TO license the liquor
traffic, and that such oral argument was
had upon that question and no other.
"Fourth-That in the brief filed by said at
torney for the appellant IN this court the
the title to the pamphlet designated as
such brief, which title was. rs license con-
stitutional?'' and thereby waived every
other question which might by the record
| herein been presented.
~. In the original hearing a reversal of
| the Judgment of the lower court was asked
upon one theory alone, which theory was
entirely abandoned in the presentation or
the case upon a rehearing ana Tor the az
ditional reason that the decision OF this
court upon such rehearing was based upon
the theory which was never presented in
the original hearing and, therefore, could
not nave been considered by the court at
IS. on account of the gross misconduct of
said counsel for the appellant, not only
was the trial court and this court deceived
and misled, but the appelleeS nave had no
| oppOrtunity to be heard upon the question:
passed upon by the court for the reason
| that counsel for appelleeS relied not only
upon such representation of opposing coun-
sci but believed and had reason to believe
that on a rehearing no question would be
decided radically different from that pre-
sented in the original hearing:
&c. The court erred in holding that the
facts charged in the complaint were sutfi-
Client to a charge that the house and bust
ness of the appellee Stehlin were a null
sance. there being no allegation In such
connnlsint that the business had been con-
Quoted in an unlawful or disorderly man,
ner. nor in any other than a lawful and
legitimate way
SCORE COLONEL RITTER.
The petition for a rehearing is accom-
panied by a lively brief from attorney Kern,
wherein he rakes Colonel Ritter fore and
aft. "a question of extraordinary interest
To the bar. as we'll as to the BENCH the
brief saws, as presented by this petition. 1t
is a question of ethics as well as law, or
professional morals as well as public NOR
ais. II is. in effect. whether the Supreme
Court of Indiana will not only countenance,
but aid. a gross deception and bare-faced
fraud practiced by a lawyer upon opposing
counsel, the trial court and their appellate
After some preliminary explanation, Mr..
Kern continues: 'It will be apparent on a
moments reflection that this court mas Deen
IMPOSED upon by counsel for appellants
The imposition would, perhaps, have been
impossible had there not been a change IN
the personnel of the court after the orig
inal decision was originally rendered by
Judge Elliott, and before the decision now
complained of, and it would doubtless nave
been discovered had counsel for appellees
filed a brief after a rehearing had been
granted. Such a. brief was not filed because
counsel thought it unnecessary to reargue
the original case and did no. believe that
A. different conclusion from that announced
by Judge Elliott would be reached upon. a
theory never limited at in the original brleI
or oral argument theory never dreamed
Of by the trial court or mentioned IN the
original discussion. =.
1T has always been supposed that IL
there was a place on earth where deceiI
and Misrepresentation by a lawyer would
not be tolerated, but where good faith and
honorable conduct would be enforced, thai
place was the Supreme Court of judicature
of a great commonwealth but in this case
we find a lawyer, looking such a court In
the face, declaring that the sole question
for decision was the constitutionahty OF
a statute, and afterward, in the same case,
word. insisting on a rehearing on another
question essentially different and not be
fore discussed. And will this court, with
these facts before 1t, place a premium on
such conduct by reversing the frSt de
cision and fastening the costs of appea,
upon the party who has been thus tricked
and deceived in the very precincts or JUS
tice?'
The attorney refers to the large dis
cretionary powers granted by the Legis-
lature to county commissioners, and shows
that circumstances tc the establishment
of saloons should be made to that body