Schwandt v. Ballentine

The opinion of the court was delivered by Dawson, J.:

The petition for a rehearing makes the criticism that the court’s opinion did not discuss the effect of a recent survey of the land boundaries and the location of the public road involved in this lawsuit. This survey was made after the case was tried in the district court, and a copy of the surveyor’s report was filed in this court, but the plaintiff made no mention of it in his brief. The court invited him to suggest what significance can be attached to that new survey in this appeal which seeks a review of errors alleged to have been made by the trial court. Plaintiff now cites section 580 of the civil code. That code provision does not help to determine the question whether the trial court committed error, and on appeal that is the only matter which this court can consider. The trial court committed no error. It correctly decided the case on the evidence presented to it. Viewed in the light of the constitution, *297 section 580 of the civil code is not so efficacious as to provide .a cure for a failure to fully present a cause in the trial court, although an uncritical reading of its text might suggest that interpretation. (See In re Burnette, 73 Kan. 609 , 85 Pac. 575 ; and Wideman v. Faivre, 100 Kan. 102, 107, 108 , 103 Pac. 619 , and discussions in cases cited therein.)

The petition for a rehearing is denied.