270
The Green Bag
happens that cases are reversed on matters not fairly presented to the trial court, and that questions on which no reliance was placed at the trial are urged as of prime importance in the reviewing court. While it is impossible to draw a definite line between the mere techni cality and the wholesome rule of procedure, between form and substance, it is possible to do away with many need less arbitrary rules, and to allow the courts at all stages of the progress of the case to do their best in working out substantial justice between the parties without so much regard to matters of form. There is no longer a valid reason for making a new history of a case for the Supreme Court in the form of a bill of exceptions or a case. It is entirely practicable to treat all the files, docu ments and exhibits in the trial court and the stenographer's notes of the pro ceedings at the trial as matters available for a review on appeal. It is altogether better to have the whole record avail able in the Supreme Court than only a part of it. The new code provides for an appeal by a simple notice served on the adverse party.. The Supreme Court thereupon becomes possessed of every matter that was before the trial court; pleadings, motions, affidavits, instruc tions and stenographer's notes when transcribed and filed, and all exhibits offered at the trial are available for a review of the cause. It is not compul sory, however, on the parties to present more to the Supreme Court than is necessary for the determination of the questions raised. Cases appealed are to
be presented by abstracts unless other wise ordered by the Supreme Court. These abstracts must be printed unless permission be granted for typewritten abstracts. The Supreme Court is author ized to allow amendments, take further testimony and adopt any procedure it may deem necessary in order to finally dispose of the case. It is required to either render final judgment or direct such judgment to be rendered by the court from which the appeal is taken, in all cases where it is practicable to do so. It cannot be denied that lawyers, who have not merely been required to learn the arbitrary rules of procedure found in the code, but also to study critically the construction placed on them by the courts of last resort, become attached to mere matters of form, and are prone to look on a violation of a settled rule of procedure as good grounds for overturning a judgment no matter how righteous in substance. It will doubtless be a matter of extreme diffi culty to eradicate this attachment to matters of form. On the other hand it has become manifest to the profession that the business community in par ticular, and the great multitude in gen eral, have little but contempt for the nice hair-splitting so often indulged in by members of our profession, not merely in discussing the rights of the parties but in wrangles over form and proce dure. The Revised Code of Kansas is a resolute attempt to exalt substance above form in all stages of the trial of a cause, to expedite trials and decisions, and to minimize the expense and annoyance of litigation.
APROPOS OF VACATIONS "Despite his material success, the American has still much to learn about the conduct of business, particularly with foreign nations. . He has yet to learn that twelve months work may be done in ten months or even in eleven, but that it cannot possibly be done in twelve."— Nicholas Murray Butler, in "The American as He Is."
