Kelly v. Central Union Fire Insurance , 101 Kan. 636 ( 1917 )

The opinion of the court was delivered by

Marshall, J.:

An opinion in this case is reported in Kelly v. Insurance Co., ante, p. 91, 165 Pac. 806. After that opinion had been rendered a rehearing was granted. The cause has been reargued, and the original abstract and briefs have been reexamined. Additional briefs have been filed, and these briefs have been examined. Every principle of law announced in the former opinion has been reconsidered. The court is satisfied with that opinion and adheres to it.

A new question is now presented. The action was commenced in the district court of Miami county, and, on the application of the defendant, was removed from that court to the federal court. Thereafter certain correspondence took place between the insurance department of this state and the defendant, in which correspondence the department strongly recommended that the removal of the cause from the state courts be abandoned. On that recommendation a stipulation was sighed, on which the federal court remanded the cause to the state court for trial. The defendant contends that the stipulation, on which the action was remanded from the federal court, was obtained by threats and duress, and that the action is still pending in the federal court, and that, therefore, this court is without jurisdiction to hear this appeal. This matter was not presented to the trial court. It. was first brought to the attention of this court by the petition for a rehearing. In that petition the defendant set out the correspondence between it and the insurance department. The petition for the removal of the cause, to the federal court, and the order of that court remanding the cause to the state court for trial, are set out in an additional abstract of the record which has been filed since the cause was set down for rehearing in this court. The correspondence between the defendant and the insurance department does not appear in any abstract. It nowhere appears that the attention of the district court was in any way called to the matter that is now under consideration. This court has often said that it will not consider questions presented for the first time on appeal. (Sleeper v. Bullen & Dustin et al., 6 Kan. 300; Stewart v. Murphy, 95 Kan. 421, 148 Pac. 609; Hennerich v. Snyder, ante, p. 403; and numerous other decisions by this court.) One reason for this rule is that appeals must be determined on the record coming from trial courts. (Root v. Street Railway Co., 96 Kan. 694, 153 Pac. 550; Girten v. Zinc Co., 98 Kan. 405, 408, 158 Pac. 33.)

The judgment is affirmed.