In the case of McCune v. Essig, 1905, the United States Supreme Court was asked to determine whether a Kansas law that allowed for the sale of mortgaged property without first notifying or obtaining consent from junior lienholders was constitutional. The plaintiff in this case, McCune, held a second mortgage on a piece of land owned by Essig and argued that his rights were violated when he wasn't notified about its sale. The court ruled against him stating that while due process requires notice before depriving someone of their property rights under normal circumstances, it does not apply here because McCune's interest in the property did not constitute an actual ownership right but rather only gave him priority over other creditors if there were any proceeds left after satisfying senior liens during foreclosure proceedings.

The dissenting opinion in the case of McCune v. Essig argued that the majority's decision to uphold a lower court ruling, which allowed for a new trial based on newly discovered evidence, was incorrect. The dissent contended that this new evidence would not have changed the outcome of the original trial and therefore should not be grounds for granting a retrial. They believed that allowing such an appeal undermined finality in legal proceedings and could lead to endless litigation as parties continually sought out new evidence after trials had concluded. Furthermore, they pointed out inconsistencies between this decision and previous rulings by the Court regarding what constitutes sufficient grounds for retrial due to newly discovered evidence.