The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-12-02
STOPS AN APPEAL
Charles Lander to Test Supreme
Court Decision.
Alleges That 1t Destroys Rights
Of Many Litigants.
FIXED BY LEGISLATION
But This Doesn't Apply to Past
Decisions.
John f. Hanson Here Perfect
ing an Appeal.
FIXED BY LEGISLATION

It is likely that Charles Lander, a
member OF the last legislature. win ap-
peal to the supreme court Of the United
States from the decision of the Kansas
supreme court in the adverse decision
rendered in his mandamus suit against
ex-Judge w. H. Lewis of the district
court Of Mcpherson county.
This is the case upon which depends
the fate of hundreds of law suits
throughout the state of Kansas. If the
decision of the Kansas supreme court
is sustained, it means that a great
many ntigants will be unable to perfect
their appeals from decisions of the low
er courts to the state supreme court.
The question involved in the case is
whether a district judge who retires
from the bench has the right to sign
''case-made' or record of a case which
he heard while on the bench. without
The signature of the ex-judge the case
can not be appealed, and yet the SUI
preTne court has ruled that the ex-judge
can not be appealed, and yet the SUI
IS that when a transcript of evidence in
case cannot be completed before a
district judge retires from the bench.
the parties to the suit lose the chance
for appeal.
Such a manifestly unjust law was
reetif1ed by the last legislature by the
passage OF law distinctly authorizing
an ex-judge to sign the case made But
this does not help the people who were
shut out prior to the change in the
law
John +. Hanson. of Lindsborg, for
merly well known Populist politician
/ of the state, has charge of the Lander
case, and was in Topeka yesterday
making arrangements for an appeal to
[ the supreme court at Washington. His
( first move was to file a motion for d re-
/ hearing of the case by the Kansas su-
] will 11al
/ be overruled, and then he will be ready
to take the case higher up.
Il am going to fight this thing
/ through to a fnish,'' said Mr.. Hanson.
Il believe that the supreme court Of
the United States viii hold that such a
/ law as we have here which makes it
/ impossible for certain people to appeal
/ their cases to a higher court is uncon-
/ stitutional. It is class legislation, and
/ defeats the primary purpose of the
state constitution in providing a SUI
preme court with appellate jurisdic-
/ ton. 1t is an infringement on the
! held not to be a matter Of a constitu-
/ tiOnal right in any sense then we still
contend that this part of the
! statute can not be upheld under the
rules Of construction, for the reason
that it conflicts with other statutes
/ granting the right of appeal which
would fail on account of being class
/ legislation if their provisions are per-
mitted to be limited by upholding this
| statute which in its nature is sec
ondary to them
HOW Lander Was Left Out.
The beginning of the litigation was
a suit by Charles Lander and his
| partner j. NJ Nelson against S J.
Johnson. Johnson won, in a trial at
| the December term of the Mcpherson
| county district court. Judge w H
Lewis presiding. On December % the
motion for a new trial was overruled
days to make and serve a case made
for the supreme court and the de-
| PENDANT five days after service to
suggest amendments, the case to be
settled and signed by either party at
| any time thereafter. The judges term
| of office expired January 9, and on
January 2S, when the case made was
presented to him for his signature, he
refused to sign the same, claiming
! that he had no jurisdiction.
Then the mandamus suit was start
! ed to compel Judge Lewis to sign.
The supreme court decided unani-
mously that the mandamus would not
lie. This decision was in line with
| former decisions on the same point.
/ About two years ago, the court held,
| by vote of 4 to 3, that an ex-judge
could not sign case made and in
this case Judge Pollock wrote a strong
dissenting opinion, which was con-
CURED in by Justices Green and Gun
bingham. Judge Pollock said in his
dissenting opinion:
'sI deem the decision made so utter
~ and entirely at variance with a cor
rect Interpretation and construction of
the constitution and statute law of the
state with regard to the powsr confer
red on judge pro tenn. that refuse to
sanction the authority of it by my con-
currence. In so doing I attach but
little importance to the argument made
by some of my associates, that it is
better to abide by a former decision
long concuTred in, though Wr0E71y in
principle than frankly acknowledge the
error aneI correct the mistake, IS ap-
piled to this present case. That argu-
ment is not without great weight when
applied to an erroneous decision, long
followed, furnishing the foundation of
large property rights, bCt it is IN
F5ound when applied to recent dec1-
7 sion which transgresses such well
known rule of law as appeals are to be
favored, and acts as a p1tfalI to de-
prive q party of his day in court for
the correction of errors. In such cases.
nothing is ever settled. until it Is set
tied right Few institutions of human
origin can assert a valid claim to the
immortal attribute Of infallibility.
With all due respect to the members
of this court, past and present, it may
be said that this tribunal is not one Of
the few.s@s
with that decision, (61 K. 640,) I
do not agree. It is a decision per
! curiam, evidently rendered without
serious reflection or mature considera-
ton. and, on account OF its recent an
nouncement, has not been so long fol-
lowed, or become so hoary with age,
or so sacred from precedent as to rem
der it invuInerable, or, as the reputed
laws of the Modes and Persians. I'M
alterable and Interchangeable, though
wrong"
Burton Not a Candidate.
Cleveland. Ohio. Dec. 2--Congress-