History of Davenport and Scott County Iowa, Volume I, Part 50

Author: Downer, Harry E
Publication date: 1910
Publisher: Chicago : S. J. Clarke
Number of Pages: 1042

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The jury impaneled October 7th was discharged on the same day and the proper allowance of per diem and mileage allowed.

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HISTORY OF SCOTT COUNTY

The first case docketed in the district court was that of J. A. Birchard, Jr., administrator, vs. Horatio G. Stone, C. C. Applegate, William Stacy and Al- fred White, in which leave to file declaration was granted.

The second was that of Paul Fullmer, vs. Martin W. Smith, and Philip Suiter. The defendants were the owners of a mill, just below the present city of LeClaire. Various cases followed, in which Elias Moore, Jacob Parlin, Ben- jamin W. Clark, William Gibbons, Otis Bennett, Philena Brown, Smith Mounts, John Henning and various other parties were mixed up in the meshes of the law. The most interesting one, probably, was that of Alexander W. McGregor vs. John Wilson. In speaking of the case the Democrat, of Davenport, says : "Now the plaintiff was a lawyer, or had been before his coming west. He came with a considerable stock of goods, which he soon disposed of and then settled on a farm in the lower part of the township. As all men are liable to be elected to places of honor, so was McGregor elected to the territorial legislature which then had its sessions at Burlington. Men had axes to grind in those days as well as in this more advanced generation, and John Wilson had a dull implement of that sort in connection with a coveted ferry franchise between Davenport and Rock Island. The story goes that Wilson induced McGregor to lend him a helping hand in this ferry job. In fact, it is said some notes of hand were passed -the consideration of which had to do with able services to be rendered in Wilson's interest. There is a tradition among the old settlers that the labor was duly performed ; but somehow Wilson became a defendant in court, the bone of contention being these promissory notes already alluded to. The suit was brought before John Forrest, justice of the peace, who after hearing the testimony and looking up the law points, satisfactorily, decided in favor of the plaintiff.

"It is pretty generally noticed, even in this day, that when a party in a law suit loses his case he thinks the judge, or jury, or the attorneys haven't done their duty by him, and he wants to appeal. If he has property to stand the racket of the law, there are plenty of good attorneys who will stand by him to the end -- the end of the cash balance anyhow. Wilson's pocket was thrifty and his blood up. He would appeal. But the justice could see no use in that. He had decided the case just right, as he verily believed, and he would hear to nothing of the sort. But the records of the court show Judge Williams' order, that the in- ferior court have all the papers and proceedings thereof touching the McGregor- Wilson case brought before him by the opening of the court the next morning, or be attached. It is probable that the papers were forthcoming.

"The judge and the parties to the suit are all dead and gone. The justice, now a venerable old man, is still a good citizen of Davenport. Mr. McGregor, having retired from farming several years after the time hereof written, moved into the city and established a law office, and in time drifted into the banking business. Speaking of Mr. McGregor, it may be in order to relate a practical joke in which he and Ebenezer Cook had a slight interest. Mr. McGregor being away from Dav- enport awhile, sought to surprise his friend, Mr. Cook, who, going to the post- office one day, was surprised when Postmaster Eldridge handed him out a con- siderable package, on which the postage amounted to $5.40 cents. Postage was not prepaid then as now. The parcel was from Pekin, Illinois. Mr. Cook looked it over in astonishment. He knew no one at Pekin; the handwriting, moreover,

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HISTORY OF SCOTT COUNTY

was not familiar. He was not a Rothschild, and $5.40 for the single item of postage was a good deal of specie. After much hesitation and not without some misgivings, he paid the postage and opened the package. Pebbles and sawdust ! that and nothing more, save a mere scrap of writing, which revealed the identity of the sender. Whether Mr. Cook ever retaliated or not is not known."

The cases already mentioned pertained to the first day's session of the dis- trict court of the county of Scott, territory of Iowa. A grand jury had been called, also a petit jury, and the machinery of the court placed in running order, though the petit jury venire had not been returned when the court adjourned for the day, on the 4th day of October, 1838. The court convened the next morn- ing. The first case on the docket was that of William Gibbons vs. Otis Bennett, entitled "Trespass in the case"-probably a "claim jumping" case, involving as the plaintiff swears in an affidavit for bail, about $700. The parties were Clinton county people, that county being attached to Scott for judicial pur- poses. The noted firm of Rorer & Starr, of Burlington, appeared for defendant. Plaintiff nonsuited and the order of the court entered up "that the defendant go hence without delay, and recover against plaintiff the costs by him, about his defense, in this behalf expended." Whether he ever suc- ceeded in getting even with said plaintiff is not recorded upon the papers at hand. The court papers fail to show the name of the plaintiff's attorney, if he had any. Of the defendants, Mr. Rorer was regarded as one of the first judicial minds of the commonwealth. Mr. Starr is dead. When the lamp of his life went out one of the rarest, brightest intellects of the state was taken.

Some very important business was transacted on the second day; for on mo- tion of Gilbert C. R. Mitchell, W. B. Conway, the first territorial secretary of Iowa, James Grant and J. Wilson Drury were admitted to practice at the Scott county bar. Conway, during his short residence here, took up the quarter section now known as the Camp McClellan tract. He died in Burlington, the territorial capital, the following year, 1839. His body was brought to Davenport for burial, the funeral rites being performed by Rev. Father Pelamourgues, of St. Anthony's church. James Grant was for many years a citizen of Scott county, while J. Wil- son Drury resided here and in Rock Island. Both became noted lawyers and oc- cupied the judicial bench, the former in this district, the latter in that of Rock Island. At this time Mr. Grant had but recently come in from Chicago, then part corn field and nearly all mud hole. He was a farmer also, having located on a farm in Blue Grass township. On his coming into this district he brought the most extensive law library then in the territory, and held the reputation of keeping the best private one until his death.

On this same day of court the grand jury which had been in session, made the first report of indictments, as follows: the first finding was not "a true bill," in the case of Jemima Bennett for adultery; and the same was true of Otis Bennett; Catherine Miller, having been considered by that body on a charge of "assault with attempt to kill," was likewise found not guilty. William Gib- bons was prosecuting witness in the first two cases. The fourth case reported was that of Philena Brown, for arson, against whom "a true bill" was found. George Eldred was prosecuting witness. This latter case, like the first two, originated in Clinton county before William Hogan, a justice of the peace

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HISTORY OF SCOTT COUNTY

there, and was founded on a charge that "on the night of the third day of September, 1838, she did burn one certain log house or cabin, which was the property and residence of this deponent (George Eldred) with a number of other articles; or that he believes the above named Philena Brown is guilty of the act, and further deponent saith not." She was held to bail in five hundred dollars to appear at the next term of the district court, Matthew A. Harrington and R. C. Brown, sureties. The case came on for hearing before Judge Wil- liams, with Simeon Meredith, prosecuting attorney, and Rorer & Starr, attor- neys for defendant, who cleared their client and an attachment was issued against Mr. Eldred for the costs, amounting to $100.31, which Deputy Sheriff Broddleston returned with "no property found." The fee bill may not be un- interesting. It was as follows:

CLERK'S FEES.

Entering defendant's appearance

$ .121/2

Discharging bail .25

Entering suit on court calendar

.121/2

Docketing cause .183/4

Filing papers

.311/4

Swearing and impaneling jury

.50

Taxing costs

.371/2

Entering motions

.113/4

Issuing subpoenas

.371/2

Issuing writ of executions

.25

Taking two recognizances

.50

Entering discharge

.121/2

Total

$5.311/4

SHERIFF'S FEES.

Attending prisoner before court. $ .25

Making out jury list .25

Appearance of defendants .121/2

Opening court .121/2

Serving on nine witnesses 1.6834

Mileage, forty miles

3.20

Total

$5.633/4

OTHER FEES.

District attorney's fee $ 6.00

Witness fees

.83.36

Total fee bill $100.31

All of which Uncle Sam had to pay himself, as he undoubtedly did. Thus ended the first criminal prosecution in the Scott county district court. Nobody convicted, nobody responsible for costs, but the government.

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HISTORY OF SCOTT COUNTY

Next followed an indictment for perjury. Then the grand jury retired, but, finding no further business, was discharged with two days' fees and mileage, excepting John Work, who, having taken himself off without leave, stood attached to appear at the next term of court for contempt.

As previously stated, the first case docketed in Scott county district court was entitled: "Jabez A. Birchard, Jr., administrator, vs. H. G. Stone, C. C. Apple- gate, William Stacey and Alfred White." The suit was brought on a certain promissory note of defendants, made to the plaintiff, as administrator of the estate of one Daniel Wyman, deceased, whereby they "jointly and severally prom- ised to pay five hundred and fifty dollars without defalcation or stay of execu- tion, value received in a quit-claim to a certain tract of land lying at the mouth of Sycamore creek." The note was drawn July 1, 1837, payable nine months after date. It was not paid as agreed, and suit was brought for the October term, 1838 the first court held in the county. James W. Grimes, of Bur- lington, was the plaintiff's attorney, and G. C. R. Mitchell and Jonathan W. Parker, of the law firm of Parker & Mitchell, of Davenport, for defendants.

The musty old papers in the office of the clerk of the district court contain the usual proceedings-the original petition in the lawyer-like handwriting of the future governor of Iowa and senator of the United States; the answer of the defendants in the more plain and leisurely written hand of the future judge, Mr. Mitchell. The subpoena by which Roswell H. Spencer, Andrew J. Hyde, Medad J. Lyman, George Carpenter and Ira F. Smith were summoned to ap- pear, is made out on a roughly printed blank from the Iowa Sun printing office, by D. Hoge, clerk of the court in the May term of 1839.

The answer contains the usual denials, denying everything that the plaintiff's petition contains, slick and clean. The case went for the plaintiff, and execu- tion was issued for the sum of $353.73, which was paid July 5, 1839, to Mr. Birchard, and the execution was declared satisfied in full, by A. H. Davenport, sheriff, by Richard Hamer, deputy. The entire cost of the suit amounted to $17.121/2. This would be considered a very moderate bill in these late days of more expensive litigation. A scrap of paper in the bundles shows that the witness, Carpenter, did not live to collect his witness fee, but that it was collected into the estate after his decease by William Nichols, administrator.

In December, 1873, the Democrat of Davenport had this to say of this case : "Thirty-five years have elapsed since James W. Grimes drew up the petition and Ebenezer Cook filed it. The judges, the two clerks of the court (Ebenezer Cook and David Hoge), the attorneys on both sides, the plaintiff and two of the defendants (Stacey and White), have passed beyond the bench and bar of earthly tribunals ; the two sheriffs and two of the defendants are yet among the living. Frazer Wilson, the first sheriff of Scott county, is a resident of Rock Island, we believe; and A. H. Davenport is a merchant residing in LeClaire, where also lives Applegate, and (we believe) Mr. Stone. Two of the witnesses, Roswell H. Spencer and Andrew J. Hyde, are yet living, the former in Rock Island, the latter on the same farm of many broad acres on which he lived at the time of which we write. The original papers before us, in all their mustiness, seem not to have been opened out to the light for a third of a century. The paper is coarse, dingy white, rough of surface and guiltless of ruled lines. The

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HISTORY OF SCOTT COUNTY

seal bears the impress of the 'silver quarter,' and wherever used is denominated the 'temporary seal.'

"Exceedingly has the business of this court swelled since the filing of these original papers. Numerous judges have occupied the same bench since then, one of them, G. C. R. Mitchell, one of the attorneys in the case. Lawyers by the hundreds have appeared within the bar since then, and clients by the thousands have sought justice thereat, sometimes in vain, more often, let us hope, sought and found ; millions have rained from the pockets of those who thought to secure their rights or defend their wrongs, and still the court sits on, the suing and the sued ; lawyers and clients gain in numbers year after year as the earth re- volves, and the world increases in light and knowledge. So it has and does; so it will until the mystic millennial day, when the lion plaintiff and the lamb- like defendant shall lie down together in peace, and the child-like lawyer shall lead them-no more forever."

The second session of the district court of Scott county was opened May 27, 1839, and as before, in St. Anthony's church. Hon. Thomas S. Wilson had succeeded Judge Williams upon the bench; A. H. Davenport had been ap- pointed sheriff by the territorial legislature; and at chambers in Dubuque, on the 21st of the previous February, Davis V. Berry was appointed district at- torney. This was an entire re-organization of the tribunal of justice in this judicial district, which embraced the counties of Scott, Clinton, Dubuque and Johnson. There was no lack of business on the docket. In fact, for a com- munity so young and a population so sparse the alacrity with which it embraced the courts was highly gratifying-to the lawyers. On the first day of the court James Grant, an attorney for the village of Rockingham, moved that "this court do now remove to the village of Rockingham, for reasons by him filed." The records assert, "Therefore, the court, after having heard the argu- ment of the counsel on the part of the motion and that of counsel opposed, took the same under advisement until tomorrow morning." Again we quote the Democrat :

NOTHING CAME OF IT.

"Right diligently have we searched the old papers of the court in quest of the 'reasons by him filed,' but all in vain. Of course the record books show nothing of the stir that the motion made in court. But what naturally would be the result of such a high-handed attempt to forever wipe the then infant metropolis of the state out of existence, and by the removal of the court condemn it to ever- lasting odium and disgrace, may be easily imagined. It was not enough that Judge Irwin, of the United States district court, had turned his back on the in- fant city, because of the unexampled nastiness and discomfort of the local tavern, and opened court in Rockingham, that he might fare sumptuously every day at the more magnificently kept caravansary of Henry W. Higgins; it was not enough that the legislative triumvirate of the county had hoisted its flag at the doomed village, utterly refusing to acknowledge Davenport, save as a neigh- boring dependency ; all this humiliation was not enough; but this belligerent gen- tleman, then as now the farmer-lawyer, must rise in his place and in a loud voice, a motion make that this court adjourn to Rockingham! The only reason

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HISTORY OF SCOTT COUNTY

that can be assigned for this willful attempt at urbicide is found in the fact that Mr. Grant's farm was two miles nearer Rockingham than Davenport, and conse- quently if his motion prevailed he would have a full hour more in each day of the session in milking his cows and hoeing his bean patch.

"But the motion didn't prevail, and Davenport was saved from the very brink of everlasting disgrace! The friends of Davenport arose in their might. It is not necessary to say that the pure-minded judge was in any way influenced, for judges never are; nor yet will it suffice for the Rockinghamers to say that he was a Dubuque man, and in all matters between Davenport and Rockingham, Dubuque sided with the former. We will say nothing about the reason for the refusal to grant the motion, but simply to reproduce the words of the court as recorded in the court record: 'The application to remove the district court of the United States in and for Scott county from Davenport to Rockingham. For that it seems to the court that the subject matter of this motion does not come be- fore the court in the proper form; it is therefore considered by this court that the relators take nothing by their motion, and that the same be overruled.'

"It is needless here to depict the chagrin that mantled the expectant Rock- inghamers, or the exultant joy that thrilled the Davenport heart, as the decision fell from the lips of this noble Daniel of the law. The town rang out with re- joicing, and an old settler informs us that some of the 'boys' didn't get well over the excitement for as much as a day or two, so intense was their enthusiasm. The district court never adjourned to Rockingham. Mr. Grant took the case up to the higher tribunals, but while it was stewing in the court the pluck of the good people of Rockingham gave out; they abandoned the idea of making it the county seat, withdrew all proposals to the county commissioners to build a court- house and jail at their own expense, and so the matter of removal ended forever."

Hon. Thomas S. Wilson, the second judge of the district, was identified with the interests of Iowa before it became a state. While it was a territory he was appointed one of its judges ; and there are persons now living who recollect him, with his boyish look, sitting on the bench about forty years ago. His history presents points of no inconsiderable interest.

On the admission of Iowa into the Union, and under its first constitution, Scott county formed a part of the second district, together with the counties of Buchanan, Cedar, Clayton, Clinton, Delaware, Dubuque, Fayette, Jackson, Jones and Muscatine. In 1847 Allamakee and Winneshiek were added to the district, and in 1851 Black Hawk, Bremer, Butler and Grundy.

James Grant, of Scott county, was the first judge of the district, and was elected April 5, 1847, and commissioned April 27th. Thomas S. Wilson, of Du- buque, who served for several years as territorial judge, a sketch of whom ap- pears on another page of this work, succeeded Judge Grant. He was elected April 5, 1852, and served until legislated out of office the following year.

On the 9th of February, 1853, a new district was formed named the eighth, composed of the counties of Scott, Cedar, Clinton, Jackson, Jones and Muscatine. William E. Leffingwell, of Clinton county, was elected April 4, 1853, judge of this new district. He subsequently resigned and John B. Booth, of Jackson county, was appointed by the governor to fill the vacancy, and qualified April

543

HISTORY OF SCOTT COUNTY

15, 1854. He served until the election of his successor, William H. Tuthill, of Cedar county, who was elected in April and qualified May 3, 1855.

In accordance with article V of the constitution of 1857, eleven new districts were created and Scott, Clinton, Jackson and Muscatine comprised the seventh judicial district.

John F. Dillon, of Scott county, was elected judge of this district, October 12, 1858, and re-elected October 15, 1862. He subsequently resigned, his resig- nation to take effect December 25, 1863, having been elected judge of the supreme court. J. Scott Richman succeeded Judge Dillon, having been ap- pointed by the governor to fill the vacancy, October 27, 1863, and elected by the people November 18, 1864. He was re-elected October 9, 1867. Next Judge W. F. Brannan, of Muscatine county, succeeded Judge Dillon and served until 1875. Walter I. Hayes, of Clinton county, succeeded Judge Brannan, and the present judge is James W. Bollinger, of Davenport.

However great the volume of business now before the district court, there have been times in the history of the county when little was done. In April, 1846, the court met and adjourned the same day, there being only one case on the common law docket, and none on the criminal. In September, 1847, the Gazette, under date of the 9th, said :

"The district court adjourned last Tuesday for want of business, it having been organized the day previously. When we take into consideration that on ac- count of the sickness of Judge Wilson we had no court last term, this speaks well for the peaceful character of Scott county."

The clerk of the district court in his annual report, November 1, 1848, says:

"I have the pleasure to report that there has been no conviction for crimes or misdemeanors since my last annual report in said court, and would add further, that there have been but five indictments in all found for the past year. James Thorington, clerk."

These five indictments proved to be, two malicious, two abandoned by the prosecuting attorney, and the other party was acquitted without the jury leav- ing the box. But the business of the court has increased since that day, and the criminal record has grown, though taking its population and other circum- stances into consideration, Scott county will favorably compare with any county in the state.

CIRCUIT COURT.

In 1868 circuit courts were created having jurisdiction in all common law cases together with probate jurisdiction. The circuit comprised the same coun- ties composing the district court-Scott, Muscatine, Clinton and Jackson. Henry H. Benson, then of Muscatine, but later of Scott, was the first circuit judge in this circuit, being elected in the fall of 1868 and beginning the discharge of his duties in January, 1869.

D. W. Ellis succeeded Judge Benson January, 1873, and was reelected in 1876. In 1878 the district was divided into two circuits, Clinton and Jackson, comprising the first circuit, and Scott and Muscatine the second circuit. Mr. Ellis, living in Clinton county, was continued as judge of the first circuit of the seventh judicial district ; D. C. Richman was elected for the second circuit. Fol-

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HISTORY OF SCOTT COUNTY

lowing him came Nathaniel French, of Davenport, who served from 1883 until 1886, shortly after which the court was abolished.

PROBATE COURTS.

A probate court was established in Scott county at the time of its organiza- tion and Jonathan W. Parker was the first judge of probate, receiving his ap- pointment from the governor of Wisconsin territory of which it formed a part. He served about one year and was succeeded by Ebenezer Cook. The first term of the court under Judge Parker was held May 14, 1838. The first business tran- sacted was the filing probating the will of Abraham Trucks, who died in Daven- port a few months previous.

In May, 1839, Judge Cook held his firm term. He served until 1842, when James Thorington was elected. Judge Thorington served until 1851, when the office was abolished by law, the duties of which under the new law devolved upon the county judge.

COUNTY COURT.

In 1851 county courts were established and the office of county judge created. By the same act the office of probate judge was abolished, as were also the offices of county commissioners, the duties of the commissioners and probate judge de- volving upon the county judge. William Burris was the first county judge. He was elected in the fall of 1851, qualified and at once entered upon the dis- charge of his duties. Judge Burris served four years, and was succeeded by William L. Cook, who also served a term of two years. Charles Weston was clected in 1857 and served two years. R. Linderman was first elected in 1859 and re-elected in 1863. In 1867 he was succeeded by T. D. Eagal, who served until the office was abolished, January, 1869.

SOLDIERS' ORPHANS' HOME, 1865

SOLDIERS' ORPHANS' HOME

BUILDINGS AT SCOTT COUNTY POOR FARM

CHAPTER XIX.

ADMINISTRATION OF THE COUNTY.

THE CONDUCT OF THE COUNTY'S BUSINESS AFFAIRS-THE COUNTY COMMISSIONERS" COURT AND ITS WORK OF ORGANIZATION-ROAD DISTRICTS AND VOTING PLACES -COUNTY JUDGES-BOARD OF SUPERVISORS-OFFICIALS FROM EARLIEST TIMES TO THE PRESENT-A RECORD FOR REFERENCE-GROWTH OF THE COUNTY IN WEALTH AND POPULATION.

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History of Davenport and Scott County Iowa, Volume I, Part 50

Author: Downer, Harry E Publication date: 1910 Publisher: Chicago : S. J. Clarke Number of Pages: 1042

Author: Downer, Harry E
Publication date: 1910
Publisher: Chicago : S. J. Clarke
Number of Pages: 1042