[241 U.S. 624, 625] Messrs. leonard S. Ferry, Thomas F. Doran, and John S. Dean for plaintiff in error.
No counsel appeared for defendant in error.
Mr. Justice McReynolds delivered the opinion of the court:
Plaintiff in error, Holmes, a lawyer practising 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 14th 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; and the sheriff sold the land January 19, 1911, to Hess, for $1,700, 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 [241 U.S. 624, 627] 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,-$500, February ___, 1911, and $575, 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 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 On the next day this sum was withdrawn by Holmes, and, as he claims, remitted to Hess.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 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. [241 U.S. 624, 628] 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) 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 cancelation 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, making no mention of Federal right, the controversy was there again presented and considered upon its merits.
Among other things the supreme court said (92 Kan. 787, L.R.A.--, --, 142 Pac. 253):
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The sole question presented for our determination is whether plaintiff in error has been deprived of a Federal right.
Considering Holmes's position as an officer of the court, and patient hearings accorded him, his own testimony, and duty to offer in evidence whatever was obtainable and material, his actual presence at every stage of the proceedings, his failure to suggest surprise or desire for any further hearing, the inquiry touching his conduct, pending for many months, his perfect acquaintance with all the unusual circumstances, including his own liability, and looking at the substance, and not mere form, of things, we are unable to say that he has been deprived of adequate notice or fair opportunity to defend, and thereby denied due process of law. The cause undoubtedly presents difficulties not to be ignored; and our conclusion is restricted to the peculiar circumstances before us.
In Louisville & N. R. Co. v. Schmidt, 177 U.S. 230, 236 , 44 S. L. ed. 747, 750, 20 Sup. Ct. Rep. 620, the principles applicable here are announced and applied. 'It is no longer open to contention that the due process clause of the 14th Amendment to the Constitution of the United States does not control mere forms of procedure in state courts, or regulate practice therein. All its [241 U.S. 624, 632] requirements are complied with, provided in the proceedings which are claimed not to have been due process of law the person condemned has had sufficient notice, and adequate opportunity has been afforded him to defend.'
Mr. Justice Pitney dissents.