USA > Iowa > Benton County > History of Benton County, Iowa. From materials in the public archives, the Iowa Historical society's collection, the newspapers, and data of personal interviews > Part 26
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"Signed by J. S. Forsyth and many others."
COURT AGAIN HELD.
It is said that the very next mail brought letters from Judge Carleton, assuring the people that he would be at the court honse, Vinton, on the 18th of June. prepared to open court aud assist in reorganizing the county. And he was there on time. al- though he was nearly drowned while crossing Prairie creek. With him also came 1. M. Preston. of Marion, long the Nestor of the bar; N. W. Isbell, who afterward served both on the district and supreme court benches, and Wm. Smythe, his successor as district judge. Judge Carleton was in court; so was Sheriff C. C. Charles; but Irwin D. Simison. the clerk elected in April, had been so intimidated by the lawless set that he had not qualified. After earnest persuasion he was induced to accept and was sworn in. As the prosecuting attorney had also failed to report. Mr. Isbell was appointed as a temporary substitute; a grand jury was im- paneled, and court was really and truly opened. notwithstanding
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that Judge Carleton had been warned that the county officers were in league with thieves and outlaws, and that it would be impossible to hold court, or at least to get an honest jury, at any place but Marysville. the headquarters of the Regulators, or the law-and-order party.
BILL AGAINST "UNCLE" WAY.
The grand jury was called and sworn. in spite of all threats, its members consisting of the following: James Rice (foreman). David S. Brubaker, Lyman D. Bordwell. Abraham Garrison. Charles Epperson. AAlbert Johnson. H. Mahan. James F. Young. John Royal (ex-sheriff ). James Johnson, Thomas Dudgeon, Samuel Osborn. Charles N. Moberly. Sanmel Alexander. Joseph Remington. James M.Mickle. Elijah Evans and Fleming Sanders. Notwith- standing the mutilation of the court docket the jury found a num- ber of bills, one of which was lodged against open-hearted Uncle Tom Way for selling liquor to the Indians. Undoubtedly, like many other early pioneers, he was technically guilty, although his more usnal custom was to offer his jug and his larder freely to red man and white, minister or horse thief. bond or free. While he lived in the country the log house of Mr. and Mrs. Way was open to all. and this large hearted sociability and liberality more than once threw a suspicion over the character of Uncle Tom that he was a real pal of the outlaws himself ; but the cloud never rested on the good old man over night. As testified to by his old neighbor and friend. Mr. Rice, the foreman of the grand jury, which re- established law in Benton county. Thomas Way was "one of the most charitable, open-hearted. generous men I ever knew." He was one of the characters of these times who lightened and braced the hearts of the pioneers and helped to lift them bravely over their hardships and dangers.
SCAPEGRACE BERRY WAY.
But Unele Tom had a son Berry, and he was a horse thief and desperado: also the cause of the indictment which the grand jury placed against the father. During the election of 1849 Berry Way assaulted Tom Kendrick and nearly killed him. He was arrested and taken before Justice Cox. of Marysville. with whom Unele Tom arranged to allow his wayward son to plead guilty and pay a fine of five dollars and costs. a goodly portion of which was
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to go into the pockets of the squire as fees. Justice Cox assessed the fine accordingly and accepted, in payment, county warrants at their face value, thinking that they would be readily received by the commissioners of the school fund to whom they were legally paid. But when he tendered them, Commissioner E. Il. Keyes re- fused to take warrants at full value which he could sell for only about thirty cents on the dollar, and demanded good yellow gold. Thereupon Justice Cox was wroth. He paid the gold into the school fund. but. as he considered that Unele Tom was responsible for his loss. he made the complaint against him of selling liquor to the Indians which the grand jury voted as a true bill.
FAREWELL TO UNCLE TOM WAY.
Uncle Way was arrested, as a matter of form, and there was a general stampede among his neighbors to see who could first get on his bail bond. Before the day fixed for the trial. the follow- ing year, he had decided to go to California and his family had already started. Unele Tom was ready to remain and be tried, but his friends urged him to leave, feeling certain that the charge against him would hold and agreeing to pay his bail. He started. but, to the surprise of his neighbors, on the day fixed for his trial he rode up to the court room and dismounted from his horse. being convinced. he said. that he would be acquitted.
On the trial. the principal witness appeared to have had a complete lapse of memory and the jury disagreed. James Harlau, then prosecuting attorney, became convinced that Way could not be convicted. and suggested to the court an assessment of the costs against the defendant. Unele Tom agreed to this. paid over about thirty dollars, mounted bis horse. wrung the hands of his warm friends who had gathered around him, bade them a husky good- bye. and rode away. never more to be seen in Benton county.
THE DISTRICT JUDGES.
When Judge Carleton retired from the bench of the fourth judicial district in October, 1853. the courts were again established institutions of the county. Wm. Smythe, who succeeded him in Benton county, was appointed judge of the entire district. in the following April. He held his first term in Benton county in May. 1854, and his last in September, 1856. resigning at the beginning of the following year to take his seat in the national house of rep-
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resentatives. He was succeeded by Isaac Cook, of Marion. also of the fourth district, who held his first term in the county in April, 1857, and continued to hold court until the creation of the eighth judicial district in 1858.
Judge G. M. Gilchrist has continued the history of the district court in Benton county in the following words: "In the fall of 1858 William E. Miller was elected judge of the new eighth judi- cial district, and he held his first term in the county in the spring of 1859, and his last term in the spring of 1862. The September term, 1859. was held by John F. Dillon. N. W. Isbell succeeded him, and held his first term in the county in September, 1862, and his last in February, 1864. Judge Miller is better known as one of the supreme court judges. C. H. Conklin was appointed to Isbell's vacancy in September, 1864, and he held his first term in the county in September of that year, and his last in September following.resigning November 15. 1865. N. H. Hubbard was op- pointed his successor, and held two terms in the county, the spring and fall terms of 1866. In this fall James II. Rothrock was elected, and held all our courts from the spring of 1867 until November, 1875. about which time he was appointed to the supreme bench, and was succeeded by Col. John Shane, who held his first term in the county in the spring of 1876, and the last one in March, 1882. In the summer of this year he suffered from a stroke of paralysis, and never after was able to command words in which to express himself, though he lived for years and was apparently. as well as ever in other respects.
"James D. Giffin succeeded Judge Shane and held his first term in the county in March. 1883. and his last one in October. 1586. but continued on the bench in the new Dinn district for some years after. In the new seventeenth judicial district. formed about this time, were comprised only the counties of Benton and Tama. The first election resulted in favor of b. G. Kinne, because of the political upheaval that two years made Horace Boies gov- ernor. Judge Kinne's first term in the county was in March. 1887, and his last for that judicial term was in the fall of ISSS. About Jannary, 1889, G. M. Gilchrist was appointed to fill the vacaney created by Kinne's resignation to become editor of a paper in Des Moines. But the new work did not suit him and. giving it up. he returned to Toledo, and in the fall of 1889 became a candidate for the remainder of the term, and was elected over G. M. Gilchrist by a few votes. Hence Gilchrist held only two terms in the county. one in the spring and the other in the fall,
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while Kinne held those for 1890 and 1891. In November of the last year Judge Kine was elected to the supreme bench, and his place was filled by another democrat. John R. Caldwell, who held all the terms of court in the county for the years 1892-3 and 4." In the fall of 1904 George W. Burnham was elected to the district bench. The general election of 1906 resulted in the choice of C. B. Bradshaw. of Toledo, and John M. Parker, of Marshalltown. the latter taking the place of Obed Caswell, deceased.
COUNTY JUDGE AS CZAR, OR TSAR.
By legislative act of February 5. 1851. the office of county judge was created and the board of county commissioners abol- ished. By law the new official was invested with their functions and with probate powers as well. and during the nine years' life of the county judgeship its incumbent was supreme in county affairs.
John S. Forsyth was the first county judge, being chosen in the August election of that year. and the first record in his books was a marriage license issued to Lewis Ferguson and Rachael Phidela Jewel on the 19th of that month. Theirs was also the first marriage recorded in the county records.
FIRST COUNTY COURT SESSION.
Judge Forsyth opened his first term of court in the unfinished court house November 3. 1851, with G. W. Vardaman as clerk and C. C. Charles. sheriff. An adjournment was soon taken to the sheriff's honse, which was more comfortable, and the court ordered that. I. M. Preston be paid one hundred dollars for his services as proseenting attorney from December 19. 1845. to April 10. 1848. and that Norman Isbell be paid thirty dollars for services rendered at the special term of the district court in 1851.
COUNTY JUDGES BUILD COURT HOUSE.
The old log court house was burned in January. 1853. after being occupied as a store. a school. court room, county head- quarters and "what not." and then came the issuing of $14,000 bonds. their negotiation by Dr. Traer and purchase at par. by Green & Brother of Cedar Rapids. The county judge contracted with the builders, paid them and was altogether the business agent
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in the entire construction of the court house. E. E. Downing was the chief contractor, and threw up his $7,000 job in a huff because Judge Forsyth would not allow him to draw money con- siderably faster than he earned it.
The court house was therefore no further along than its foundation when Samuel Douglas surceeded Judge Forsyth in August, 1855. The new judge formally annulled the Downing con- tract, advertising for new proposals, with the stipulation that "'a moderate portion will be advanced as the work progresses." In about a year the second court house, a two story brick structure, was completed under the energetic supervision of Judge Douglas. He was not even a lawyer, but was a man evidently of good inten- tions and considerable ability. He held the office of county judge until it was abolished July 4, 1860. The county judge of the pres- ent has the usual powers.
Says Judge Gilchrist : "In the days that the county judge was Tsar in county matters, it is commonly understood that Samuel Douglas had things as he wanted them and did much as he pleased. No one thinks he grafted, except in so far as his bank could make money buying warrants and the county had no funds to pay until so bought. Otherwise his administration was clean, as was that of his predecessors. Douglas was a democrat and a leader of his party. Tom Drummond was the leader of the repub- Iicans. These two were expected by the people to antagonize each other, and it is said that after some of their 'meetings' on the streets. and while the air was yet blue with their vituperation of each other, they were in the home of Douglas strengthening the inner mian and their real friendship.
"Then came the days when the county judge was shorn of all powers except in matters of probate. John MeCartney filled the office for a time, but no one has ever found any of the records he made. The last county judge was G. M. Gilchrist, legislated out as judge and in as auditor. These probate judges seldom had an attorney to appear before them. They were their own clerks, and made out most of the reports required from guar- dians and administrators. Fully advised of every step taken in any matter of probate, it is questionable if they did not administer such matters in a better and much more economical way than is done today, and at much less expense to the public."
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CIRCUIT COURT ESTABLISHED AND ABOLISHED.
A legislative act of April 3. 1868. abolished the probate judge system and established the circuit court, providing for an election of judges in October and an assumption of their duties in January 1, 1869. The act gave to the circuit court exclusive jurisdiction of all probate business, and also of all appeals from justice, mayors, and all other inferior courts, either in criminal or civil cases. Benton county was included in the first circuit of the eighth judi- cial district.
The first term of the circuit court was opened January 19, 1869, by llon. William E. Miller, of Iowa City ; Henry M. Wilson, sheriff. and B. R. Sherman, clerk. Judge Miller served until the close of the November term of 1870. and was succeeded by George R. Struble, of Toledo, in January. 1871. who continued on the bench until the close of the Angust term. 1872. William J. Had- ock. of Iowa City. filled out the remainder of the year by appoint- ment and John MeKean. of Anamosa, who was elected in the fall of 1872.continued until the close of 1880. The last circuit judge to hold court in Benton county was Christian W. Hedges of Marengo. who was upon the bench when the office was abolished in December, 1886.
LEADING MEMBERS OF THE BAR.
Mention has already been made of such early members of the bar as I. M. Preston. N. W. Isbell and Wm. Smythe. "A little later when the county was rapidly growing more populous. such men as Colonel Shane. Joseph Dysart. John MeCartney and C. II. Conklin became members of the bar. These. as most men know. were men of high character and fine legal ability. Two of them graeed the district court bench and one was lieutenant governor. This one though fit to preside over the senate of the state, was not able to govern his temper at all times, for on one occasion he de- stroved a law book on the pate of opposing counsel. But he is not the only one guilty of contempt of court in that way, for our amiable. even tempered Al Haines, on one occasion belabored Mr. Cody. the opposing attorney. for some insulting remarks and at an- other time G. M. Gilchrist. only to aid the court in the enforcement of repeated rulings disregarded, threw an ink stand into the
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breast of the delinquent attorney. In none of these cases, however, did the court impose any penalty for these rude shocks to its dignity."
GOVERNOR BUREN R. SHERMAN.
The bench and bar of Benton county includes among its most distinguished and honored members Buren R. Sherman, twelfth governor of Iowa. who served the state with marked ability and fidelity for two terms, from 1882 to 1886. He is the only chief executive of the Hawkeye state to be furnished by the county, albeit there may be others on the way. Buren Robinson Sherman, who was a resident of Vinton for abont forty-five years, was a native of Phelps. Ontario county, New York, where he was born May 28. 1836. coming with his parents to Tama county iu 1855. His earlier years as a youth and young man were devoted to the work of assisting his father in the homestead improvements, only his odd. or "left-over" moments, being applied to his law studies.
Admitted to the bar in 1859. Mr. Sherman had but fairly com- meneed practice at Vinton before he enlisted for service in the Civil war. He was severely wounded at the battle of Shiloh, and as a reward for his good conduet was advanced to the rank of cap- tain. He resigned from the service in 1863 on account of failing health, and after his return home was elected to the office of county judge, and later. «lerk of the district court. Mr. Sherman was elected to the office of auditor of state in 1874, which position he held for three successive terms. He was elected governor of Iowa in 1881, entering upon the duties of his office the following Jannary, and two years later succeeded himself as chief executive. The
last years of his life were spent in comparative retirement at his home in Vinton, where his death occurred November 11. 1904.
However agreeable. it would be far beyond the limits of this article to mention in detail the . numerous members of the Benton county bar who have made honorable records for them- selves on the bench and in public life. Besides those who have already figured may be mentioned J. C. Traer, member of lowa's first constitutional convention, banker and leading citizen of Vin- ton : C. Il. Conklin, S. P. Vanatta; G. W. Sells and Cato Sells. father and son ; W. A. Tewksbury. a highly educated and eloquent lawyer whose mental gifts might have placed him at the head of the early bar ; Robert St. Clair, Alfred Haines, George Serimgeour;
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John D. Nichols, who entered the state senate four years after his admission to the bar and still stands among the foremost of the criminal lawyers of the county; Hon. William P. Whipple, perhaps altogether the leading attorney of today; E. F. Brown, his son-in- law. county attorney. and MM. J. Tobin, who formerly held that office : Tom Il. Milner, C. W. E. Suyder, Charles F. Stookey, Charles I. Vail. P. Il. Lynch, and --- the temptation is too strong not to unite it -"ad infinitum."
WILLIAM C. CONNELL.
Among the pioneer members of the Benton county bar, and those who were most instrumental in maintaining the local reputa- tion of Vinton for stanch patriotism during the Civil war, was Wil- liam C. Connell. With Captain Hunt, he was chiefly instrumental in raising Company G, Fifth lowa Volunteer Infantry, the first organization formed in Benton county for the Union cause. Al- though commissioned first lieutenant by Governor Kirkwood. he was compelled to resign. He stanchly upheld the cause at home, however, and was also dispatched to the front by the governor to take the soldiers' vote in the field, both during 1862 and 1863. Mr. Connell was born in Ripley county, Indiana, June 18. 1830. Soon after his marriage in Pennsylvania, he started for lowa with his wife and brother-in-law, the financial backing of this enter- prise, so far as he was concerned. being five dollars and forty-five cents in cash. The three journeyed by wagon and arrived at Benton county June 30. 1854, Mr. Connell's capital having been so wisely husbanded that when he arrived upon the ground he had ten cents in his pocket. In the fall of 1854. he located at Vinton and in the following year commenced reading law with Judge Shane, and was admitted to the bar in April, 1857.
HON. WILLIAM P. WHIPPLE.
Of the active class of practitioners perhaps Mr. Whipple would be more generally accorded the leadership than any other member of the Benton county bar, and among the younger men none are more able or popular than Judge E. F. Brown and MI. J. Tobin. Mr. Whipple was born on his father's farm near Vinton. where he commenced practice thirty-two years ago, and has been associated with such men as Hon. Cato Sells, now of Texas; Judge G. M. Gilchrist and Judge E. F. Brown. He has served five terms
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in the state senate and the statute books bear numerous evidences of his ability, especially as regards the systematie regulation of its educational institutions. As conelusive proof of this statement and Senator Whipple 's general eminence as a lawyer and citizen, reference is made to his more extended biography published in other pages.
O. L. COOPER.
Judge Shane's office seems to have been for many years a sort of kindergarten for the edneation of young aspiring attorneys of Benton county. Among the many who received the benefits of his kindness and wisdom was O. L. Cooper, who came to Vinton in 1867. Two years later he married Judge Shane's daughter, Annie S .. and was admitted to the bar in October. 1871. He was afterward associated with Judge Shane in the practice of the law until the latter went on the bench, and in January, 1878, became a partner of .J. D. Nichols, under the firm name of Nichols and Cooper.
J. J. MOSNAT.
J. J. Mosnat, one of the early attorneys at law, who located at Belle Plaine, was also one of the first of the educated and enter- prising Bohemians to locate in that city. JIe was born in that country. September 28. 1849, and came to the United States with his parents when he was fourteen years of age. The family settled at Weston, Missouri, where they remained until 1862, when they moved first to Wisconsin and then to Belle Plaine. The year of his arrival at this place also marked his majority and the commencement of his law studies in the office of Johnson and Tewksbury. Ile afterward continued in the law department of the Iowa State University. from which he graduated in June. 1874. Mr. Mosnat commenced practice in October. of that year. served as vity attorney. and. besides earning a fine practice and professional reputation, became prominent in local banking circles, serving for eleven years previous to his death in June, 1903, as vice president of the Citizens' National Bank.
FIENDISH MURDER IN KANE TOWNSHIP.
In November. 1874. Carl Allers, a farmer living in Kane town- ship, suddenly and mysteriously disappeared. Search was made.
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for him at the time, but no traces of the missing man could be dis- covered. Meanwhile his nephew, Fred Allers, remained on the farm, and after the search was abandoned, quietly settled down to work.
More than three years passed, until. in the spring of 1878. a brother of the missing man employed a detective to ascertain his fate, if possible. The detective. A. II. Shoemaker, arrived, and quietly commenced work. He soon discovered circumstances that pointed strongly to the nephew as the murderer of his uncle. He was arrested, brought to Vinton and committed to the city calaboose for examination, which was set for Thursday, June 6. 1878, before W. B. Reynolds .Sr .. justice of the peace.
Between the time of the arrest and the day set for examination the German citizens in Allers' neighborhood worked themselves into a state of excitement that threatened mischief to the accused. This excitement seemed to be much increased by the discovery o. several forgeries and burglaries, which pointed an aceusing finger at him, in addition to the foul murder with which he seemed to be justly charged. Some time in the night of Wednesday they came to Vinton, about a hundred strong, with the evident purpose of meting out swift and condign punishment upon the culprit. Sheriff Smith. however, was advised of the movement, prepared for it, and there were no outward demonstrations. At the preliminary ex- amination. Nichols & Cooper appeared for the state and Traer & Burnham and Tewksbury & Worthen for the defense. Sheriff Smith, the first witness, testified, in substance, that the prisoner. Fred Allers, came to his office with A. II. Shoemaker, May 28, 1878. and said he wanted to talk to him (the sheriff) about his Uncle Carl. lle said he killed his uncle at his stable, early in the morning of November 25th, three years ago last fall. by striking him on the head with a hammer; that be covered the body with straw, near a straw-stack, a short distance from the house; that he then went to Belle Plaine with a load of wheat: that on his return. about 1 o'clock, he dug a hole near where the body had been concealed and buried it. together with his clothing, except a pair of boots, which he. (Fred) afterward wore out. The motive for killing his uncle he stated to be, that he owed him money, above $200, which he could not pay.
W. b. Parmater, deputy sheriff. testified that on the morning of May 29th. he was one of a party who went to the premises of Allers, in Kane township; that he examined the ground indicated by Allers as the place where the body of his unele was buried; that
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on digging a few inches from the surface he first discovered a small piece of bone: next, fragments of clothing; on further dig- ging, a part of a satchel, clothing, a watch, seraps of leather. bones. ete .. were found.
Dr. C. C. Griffin, one of the party in search of the body, testi- fied to the finding of the articles mentioned by the former witness ; he testified also that the bones were those of a human being; among them were the breast bone. collar bone, bones of one arm, bones of the wrist, shoulder blade and vertebrae, also a part of a thigh bone.
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