(dissenting.)
I dissent.
I have no particular quarrel with the result in this case, but it seems to me the opinion circumscribes too much the power which may be given to this court under the Constitution. The Constitution simply provides that, in ordinary cases, the supreme court shall have “appellate jurisdiction.” binder, this provision, this court may not be given original jurisdiction in such cases. The opinion holds, however, that, in the consideration of evidence, the power of the court is limited by the Constitution to “the * * * purpose of determining whether the * * * findings of fact made by the trial court * * * are clearly and manifestly against the evidence.” This seems to me too narrow a construction of the term “appellate jurisdiction.” In the early case of Le Guen v. Gouverneur and Kemble, I Johns. Cas. (N. Y.) 436, Chancellor Kent said on page .507: “It is the settled rule of the House of Lords in England, upon appeals, always to give such a decree as the court below ought to have given. This is the great and leading maxim in their system of appellate jurisprudence.”
In' the Federal courts of appeal the question of the boundaries of appellate jurisdiction there was originally much in conflict between the circuits. The rule finally settled on was exhaustively stated in Richmond v. Atwood, 52 Fed. 10, 2 C. C. A. 596, 17 L. R. A. 615. The court quotes the case above cited and reviews the history of the appellate power in equity cases and concludes by reversing the findings of the trial court and making final disposition of *471the case. The court held in substance that where the court has a complete record of a full hearing on the merits, it was within the appellate function to proceed to correct fundamental error and finally dispose of the case in the manner in which it should have been disposed of in the court below. This practice was ■ approved in Smith v. Vulcan Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. ed. 810. See, also, Gilmore & Smith v. Ferguson & Cassell, 28 Iowa, 422; Yates v. Pelton and Gregg, 48 Vt. 314; Gaffney v. Megrath, 11 Wash. 456, 39 Pac. 973.
It seems to me this is within the scope of the constitutional term appellate jurisdiction.