Mr. Lee Monroe, of Topeka, Kan., for plaintiff in error.
Mr. B. I. Litowich, of Salina, Kan., for defendant in error.
Memorandum for the Court by the CHIEF JUSTICE.
Having previously considered this case (82 Kan. 216, 107 Pac. 559; 87 Kan. 842, 126 Pac. 1093) the court awarded relief because of the violation of a contract of employment to procure the sale of real estate. 96 Kan. 109, 150 Pac. 559.
The case is here in reliance upon a federal question based upon the assumption that the authority to sell included land belonging to the United States covered by an inchoate homestead entry. But the court below expressly [248 U.S. 23, 24] found that such land was not included in the contract, hence the sole basis for the asserted federal question disappears.
And this result is not changed by considering, to the extent that it is our duty to do so, the question of fact upon which the existence of the alleged federal question depends. Northern Pac. R. R. Co. v. North Dakota, 236 U.S. 585, 593 , 35 S. Sup. Ct. 429, L. R. A. 1917F, 1148 Ann. Cas. 1916 A, 1; Creswill v. Grand Lodge K. P., 225 U.S. 246, 261 , 32 S. Sup. Ct. 822; Kansas City Southern R. R. Co. v. C. H. Albers Commission Co., 223 U.S. 573, 591 , 32 S. Sup. Ct. 316. We so conclude because the result of discharging that duty leaves us convinced that the finding below was adequately sustained; indeed, that the record makes it clear that the alleged ground for the federal question was a mere afterthought. The case, therefore, must be and is
Dismissed for want of jurisdiction.