(dissenting). Brown, as a matter of fact, never acted, or assumed to act, as attorney with Mr. Cherry for any of. the parties interested in this estate. All that Brown ever did was to advise Mrs. Van Gerpen to employ Cherry. Because Mr. Cherry at some prior time had remunerated him for sending business to his office, Brown entertained the idea that Mr. 'Cherry might in this instance pay him something- for having advised Mrs. Van Gerpen to employ him. Brown did not entertain the view that Cherry might pay him something because he had acted as attorney for Mrs. Van Gerpen in connection with Cherry, but solely and only because he had been instrumental in forwarding business to the Cherry office. It is conceded in the majority opinion that the relation of attorney and client never in fact existed between Brown and Mrs. Van Gerpen. The majority opinion states that he was assuming that such relation did exist, and was assuming to have the same rights as though he had accepted an actual retainer. This statement is untrue, and is pure fiction, not sustained by the record in this case. The only thing Brown 'ever did was to suggest to Cherry that he might be entitled to some remuneration for having forwarded the business. A banker or physician might, for a remuneration, forward business to a lawyer, and that certainly would not constitute the banker or the physician a lawyer, so that it could be said that 'he had assumed the relation of attorney -with the client whose • business was thus forwarded to the lawyer. The record in this case shows as a matter of fact that Brown never actually or inferentially assumed or even pretended that the relationship of attorney and client existed between himself and Mrs. Van Gerpen. The character of Judge Brown should not be crucified on any such fictitious grounds. None of the Van Gerpens or parties in interest are objecting to or questioning the right of Judge Brown to now act in the final settlement of said estate. But it is said that “it was the state of Brown’s mind — his belief that he was entitled to share in such fees — that disqualified him.” If Judge Brown as a matter of fact *638had become an attorney for Mrs. Van Gerpen, and had shared in the fees, as such attorney, along with Mr. Cherry, which he had a right to do, but did not, as said equity case was not in the county court, he would have been disqualified. Even if he had been in fact attorney for Mrs. Van Gerpen in that case, he might not have been of evil judicial mind; but the law, based on public policy, says:
“You shall not act as judge in respect to those matters involved in your relationship as such attorney.”
It is the interest of the attorney in the result of the litigation —the confidential knowledge of facts acquired -by him as such attorney, that forms the reason and basis of the public policy of the law that by construction prohibits such attorney from after-wards acting as judge concerning the same matters involved in the attorneyship, regardless of whether or not he might be of evil judicial mind, for the law constructively implies such evil-mindedness from such conditions. But in a case where it is conceded that the relation of attorney and client never existed, as a matter of fact, and where the attorney never had any kind of interest in the litigation, and never acquired any confidential knowledge as attorney or otherwise, that -by any reasonable possibility could bias or prejudice his judicial mind, it would be a wild stretch of imagination that would apply the rule of constructive evil-mindedness to such circumstances. There is no foundation of fact for the constructive inference that the mind of Judge Brown is not what it should be in reference to the Van Gerpen estate. That his mind is not right, as stated by the majority opinion, is based on pure fiction — something that never did exist.
It is true that Judge Brown may be in a position to pass upon the fees and charges, which have already been allowed to Mr. Cherry by the plaintiff, Marker, who was associated with M'r. 'Cherry in the law business, in the Cherry law office, at the time !Mr. 'Cherry secured his, Marker’s, appointment as guardian of Mrs. Van Gerpen, but that surely would not by, any, possibility work any prejudice against the parties in interest who are entitled to the proceeds of this estate on final distribution.
Assuming that we are in error in everything we have heretofore said herein, still we are of the view that the following is a *639full, complete, and absolute answer to the contentions of the plaintiff. Prior to instituting this as an original action in the Supreme Court, precisely the same action had been instituted in the circuit court on the same grounds and demanding the same relief, and after regular hearing, and finding in favor of Judge Brown upon the merits, an order was made by that court denying plaintiff the demanded relief, from which order and judgment no appeal has ever been taken. If the plaintiff had not taken action in the circuit court, hut had- taken his -first action in this court, then this court might have taken jurisdiction for like reasons, as was done in Huron v. Campbell, 3 S. D. 309, 53 N. W. 182. There can he no question but what under section 2, art. 5, Const:, this court has a superintending control over inferior courts in addition to its general appellate jurisdiction; ibut I am' of the view that such superintending control should be exercised in accordance with the laws of the land, and not according to any autocratic or arbitrary rule; that under the guise of such superintending control this court does not have jurisdiction to vacate and override the final judgments of inferior courts having jurisdiction of the parties and subject-matter. This plaintiff having elected to invoke the jurisdiction of the circuit court, at a time when the jurisdiction of this court might have been invoked, and having therein tried out, in the circuit court, the merits of the action to final determination and judgment, and lost, and hot having appealed, the judgment of that court became final and conclusive, subject only to be set aside on the ground of extrinsic fraud or mistake. This is the distinguishing difference between this case and the Huron v. Campbell Case. In that case the application for mandamus against the inferior court was initiated in the first instance in this court. But it is said that the court should take jurisdiction of this case, notwithstanding the judgment in the circuit court, because of an apparent necessity and emergency arising from the fact that plaintiff was about to be called into the military service of the United States, which would render an appeal from the circuit court judgment not an adequate or speedy remedy. While the record does not disclose the exact date when the action was commenced in the circuit court other than that it was about the 1st of October, 1918, yet the record does show that the said judgment of that court was rendered on the 23d day of October, *6401918. The same necessity — the same emergency which is now made the ground for holding that the remedy by appeal is not adequate because not speedy, existed at the time the action was commenced in the circuit court. An affidavit of plaintiff purporting to have been sworn .to on August 10, 1918, states -that affiant had tendered his services for the period of the war to the government of the United States, and had been accepted, and was then under orders of the proper officers to report at Camp Pike on the 12th day of August, 1918. With full knowledge of the existence of the said necessity an emergency the plaintiff then elected to proceed in the circuit court, and. therein tried out the merits of the controversy. No new or other or different emergency has arisen since said election so made to institute said action in the circuit court. From the record it appears that this action was instituted in the Supreme 'Court on the 13th day of November, 1918, at a time after the signing of the armistice, which had the effect of eradicating the existence and necessity of the plaintiff’s having to render war service. I am therefore of the view that under the circumstances of this case the plaintiff had a perfectly adequate remedy by appeal from the judgment of the circuit court; that such remedy would have been as speedy and as adequate as the present procedure, and that the judgment of the circuit court became and was an effective final judgment, conclusive upon the plaintiff, until reversed on appeal or set aside for extrinsic fraud or mistake.
The peremptory mandamus should be denied.
SMITH, P. J., concurs in dissent.