USA > Iowa > O'Brien County > Past and present of O'Brien and Osceola counties, Iowa, Vol. I > Part 26
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"In view of the good moral character of applicant, the practical knowl- edge of the statutory law already acquired by him, and his avowed purpose of pursuing an extensive course of reading of standard works upon the ele- ments and principles of law, the committee recommends that the applicant be licensed to practice as an attorney and counselor in the courts of the state of Iowa.
"17th day of April, A. D. 187.4. "By order of the Committee, "CHARLEY ALLEN, Chairman."
The first jury case tried was in April, 1874, in Ransom Bartle vs. Will- iam Lyle. D. A. W. Perkins was attorney for plaintiff and John Connell for defendant. The jury found for plaintiff and assessed the amount to be re- covered at sixty-nine dollars and costs.
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The circuit court extending, as has been said, in this state from 1868 to 1886, was presided over in this county by but four judges, Addison Oliver, John R. Zuver. Daniel D. McCallum and George W. Wakefield.
Addison Oliver, born in 1833, was an early settler of Monona county and has often been honored with the confidence of the people in election to office. In 1863 he served in the state Legislature as representative, and in 1865 served in the state Senate. He held office as circuit judge from 1868 to 1873, inclusive, at which later date he was elected to Congress and served in that capacity for four years from this congressional district. He was a man of strong individuality, honest, industious, talented and of strong will power. He was public spirited. giving to his home town of Onawa a public library and manual training school. His life work is studded with many instances of his benevolences and kindnesses. He was a good fighter, strong in his likes and dislikes and ever ready to defend his opinions and his just rights. Judge Oliver was in charge of court in the first circuit only of this district. which included Woodbury, Plymouth, Ida, Cherokee. O'Brien, Monona, Harrison and Shelby counties.
The first term in this county began November 25. 1869. But one case was disposed of at that term, an entry of default in the suit of Loren Inman vs. Chester W. Inman. Judge Oliver believed in expediting business of trial work and at the second term he held in the county he promulgated the fol- lowing rules of practice :
"First. The defendant shall demur or answer, or do both as to the original petition before the morning of the second day of the term and as to an amended petition by the convening of court at its next session after the same is filed.
"Second. The plaintiff shall demur or reply or do both as to the orig- inal answer by noon of the second day of the term and to an amended or supplemental answer, or answer after notice, or demurrer, by the convening of court at its next session after the same is filed.
"Third. The defendant shall demur as to the reply by the convening of court at its next session after the same is filed."
A proceeding in the probate court of Clinton county, Iowa, transcripted to this county at this time, shows that H. F. Parker, J. R. Pumphrey and R. B. Crego were appointed to fix the value of one hundred and twenty acres of land on north half of section 31, in what is now Summit township, in the matter of estate of Jacob Whistler, deceased. They valued the land at one thousand one hundred and twenty dollars. Publication of the notice of sale was made in the Sioux City Journal and the land was sold to the attorney for the estate for three hundred dollars.
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The first contested legal action in the circuit court is shown to have been that of Tallmage E. Brown vs. Rouse B. Crego, as treasurer of the county. The files in the action are missing from the clerk's office, but it is indicated that the action was an attempt to mandamus the county officials. A demurrer to the petition was sustained, the court finding that he had no jurisdiction. Same entry was made in case of Eugene Childs against same defendant.
February 10, 1871, Judge Addison Oliver gives a side light on the sparsely settled condition of the county when he orders :
"It appearing that there is no practicing physician or lawyer in the county of O'Brien it is ordered that Dr. Butler and C. H. Lewis, Esq., of Cherokee county, Iowa, be and they are hereby appointed as commissioners of insanity protempore."
One wonders at the need of such a commission at that time when the population was so small, but the need must have been great, for the court entered another order July 4, 1871, appointing L. E. Head and B. F. Mc- Cormack as members of the insane commission in place of the Cherokee county residents.
Judge Addison Oliver resigned his office in 1874, when he was elected to Congress and J. R. Zuver was appointed to succeed him. He was after- ward elected to the office, but did not hold court regularly on account of de- clining health. Under the arrangement two terms of circuit court and two terms of district court were held each year, the different courts alternating.
Judge Zuver's early opportunities for education were limited, and not well calculated to fit him for the bar. His life struggles commenced as a deck hand on a tug boat on the Ohio river and he finally became captain of the boat. Coming to Iowa in the sixties, he settled in Harrison county and was admitted to the bar in 1868. He was rather austere and a man of many peculiarities. Of strong convictions, he would not swerve from what he thought was the right. He possessed a good legal mind, but was better adapted for the service at the bar than on the bench. Frequently hasty and captious and zealous in the insistence of his views, he often gave offense by the earnestness with which he expressed his opinions. At one time he se- cured the disbarment of an attorney who had offended him, but the supreme court reversed the action. The case is reported in 45 Iowa Supreme Court Reports, page 155. A Sioux City lawyer who came under the ban of his dis- pleasure was confined in jail as punishment for a contempt of court, until he was released by Judge Lewis on a writ of habeas corpus. Becoming physi- cally disabled through a fall that resulted in an injury to his head, he was
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unable to hold court, but continued in office for practically the last three years of his term without holding court. In 1890 he removed from Sioux City to Boulder, Colorado, where he died November 7, 1896.
Daniel D. McCallum, elected circuit judge in 1884, ended his service when the court was abolished by the Legislature, in January, 1886. Judge McCallum lived at Sibley, in Osceola county, was a man of pleasing person- ality and well liked by the bar. At the conclusion of his term he thought that, having been elected by the people to fill the office for a full term, the Legislature could not sooner end the term by abolishing his court. The mat- ter was tested in court, but resulted adversely to Judge McCallum and other circuit judges who had been legislated out of office. Judge McCallum died of cancer of the face in 1895.
George W. Wakefield. serving as circuit judge 1885-1886, did not hold court in this county during those years and will be spoken of later.
Charles H. Lewis was born in Erie county, New York. in 1839, and died September 26, 1904. He served with distinction in an Iowa regiment in the Civil War and engaged in the practice of law at Cherokee in an early day. From 1871 to 1875 he ably served as district attorney of this judicial district. In the fall of 1874 he was elected district judge and held the office until January 1, 1887. Craig L. Wright once wrote of him: "Personally he was the most lovable man to those whom he knew well. His character was one of the purest and mere contact with him left a marked impress. I have always had the highest regard for him as a lawyer and a judge. Be- fore the bar he was stronger in consultation than as an advocate and was one of the most learned men who ever practiced in this state."
George W. Wakefield, born in 1839, died in Sioux City March 10, 1905. He served in an Illinois regiment in the Civil War, was wounded at Jackson, Mississippi, and entered the practice of law at an early day in Sioux City. After his two years' service as circuit judge, he began his term as district judge January 1, 1887, which service continued until his death. In early life he became owner of some real estate in this county, which he held till shortly before his death. He was kindly by nature, methodical in his habits and well versed in the law. He had a high order of ability in logical analysis and marked impartiality in his judicial methods and decisions. Besides his in- terest in law, he was foremost in a number of scholarly and public activ- ities that indicated his breadth of mind and wide range of interests and studies. He was a forceful personality, not because of any aggressive dis- position, but rather because of his modest and genial temperament, combined
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with distinguished ability that compelled general dependence on his judgment and confidence in his sincerity.
Judge Ladd has been referred to in the chapter on the Bar. He was a good politician because he conducted his office with industry, ability, integ- rity and honesty. His service on the bench did not repress his sense of humor, however, and frequently we hear stories from the older members of the bar as to his wit. At one time he had taken an equity case under ad- visement and when some time had elapsed with no decision, litigants and at- torneys became anxious. As a smooth way of suggesting to the court that it was time to decide the case, the attorneys, after conference with each other, prepared and filed a motion asking that the court issue an order to require the judge to render his decision. The clerk was delegated to hand the motion to the judge and he slipped it upon his desk and promptly with- drew. Judge Ladd read it to the end, but soon afterwards placed on file his reply as follows :
"Come now the judge before whom this cause was tried and submitted and begs to sumbit the following :
"He admits that decision in said cause has not been rendered, but as reason therefor states: That there have been employed as attorneys in said cause members of the bar who have so artfully twisted and concealed the facts and law that decision of said case on its merits is impossible. Where- fore this judge prays that he may go hence in peace."
The attorney's accepted the joke and were soon afterwards respectively pleased and disappointed to hear from the judge with his decision.
Anthony Van Wagenen, appointed by Governor Boies in 1892 to fill vacancy created by addition of another judge in this district, had been in the practice at Rock Rapids in Lyon county. He made a good judge, but was ill during a portion of his term, that precluded his holding all terms of court regularly. He afterwards entered the practice at Sioux City and has been prominent in Democratic councils and politics. He is a fluent speaker and talented in debate.
Frank R. Gaynor, elected to the district bench as a Democrat in 1891. later became a Republican, largely turning upon the money question,-gold versus silver,-that was an issue between the parties. Judge Gaynor resided at LeMars and was a highly qualified lawyer, a thorough gentleman, kindly considerate of all. He brought to his office a grace and dignity that charmed the bar. litigants and court officials. His record in the appeals of cases to the supreme court has been exceptionally good and he has long been con-
(17)
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sidered one of the strong judges of the state. In 1912 he was elected to the supreme bench and began his office there with the year 1913.
John F. Oliver, elected first in the fall of 1894, has continuously served as district judge to the present time, although his work has not brought him into this county since we were set out of the fourth district in March, 1913. He is a son of Addison Oliver, the pioneer circuit judge of this district, and partakes of the strong qualities of his father. He is highly qualified as a lawyer, well read and with a mind well fitted to study and digest the law and come to the right conclusion. Absolutely honest in his decisions, his natural sense of right and wrong has sometimes caused him to assist the litigant whose case may not be quite properly presented, in getting the entire evidence before the court and jury and thus he has at times antagonized some of the attorneys. His continued service on the bench shows the high opinion of him held by the voters and he has proven an acceptable judge.
William Hutchinson, of Sioux county, elected to the bench in 1896, is one of the most popular judges. Of good legal training, a keen knowledge of human nature, a polished and convincing speaker, he has shown marked ability in rightly deciding the equities of matters presented to him for de- cision. Prior to his elevation to the bench he had long served as a success- ful practitioner, including service as county attorney of Sioux county. He possesses a clean Christian character and is verily beloved by even the litigant whom he smiteth.
J. L. Kennedy, appointed to the judgeship to fill vacancy in 1905, served till the end of his term, but was not a candidate for election. He was an exceptionally good lawyer and successful in his practice and found the sac- rifice in income too great to longer continue in office.
David Mould, successor to Judge Wakefield, resides in Sioux City. He is of the same quiet temperament as Judge Wakefield. a good lawyer and a righteous judge.
Judge Boies, the youngest judge in point of service, has been discussed in another chapter. His friends are pleased to note that he is giving uni- versal satisfaction as a judge, bringing to the office not only the ability but the industry that results in quick trials, quick decisions and no business de- layed.
Within the limits of this chapter it will be possible to give but frag- mentary statements in regard to a few of court officials.
Ed. Nissen was sheriff from 1872 to 1877, inclusive. He was a drink- ing man and an indifferent officer. In his final campaign for office in 1877 he
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canvassed the county and urged upon the voters, who had been sorely pressed by creditors during their days of poverty that followed the grasshoppers and crop failures, that he would be drunk most of the time and they could not expect him to hurt them much in the way of serving process. Mart Shea, opposing him, announced that while he would serve all papers handed him he would serve nothing unless fees were paid in advance, and would not, as Nissen had done, extend credit to persons desiring the papers served. The people believed in Shea and elected him and, sure enough, when he de- manded fees in advance, litigation fell off and many creditors refused to sue when they had to pay in advance. Shea held office for four years and was followed by W. C. Green, or, as he was familiarly known, "Clark" Green. The latter had been a settler from the early day, closely identified with the business life of the county, a merchant, and owner of half the town plat of Primghar. Green held the office eight years and was an exceptionally good and capable officer. During his term of office there was commenced that sea of litigation over the railroad lands in the county that not only kept the sheriff busy, but helped his finances as well. In one day the Western Land Company, purchaser of the Chicago, Milwaukee & St. Paul Railway lands, filed one hundred and fifteen suits in ejectment and the sheriff and his depu- ties handled the notices in all these cases. At another time over fifty similar cases were filed in one day. Green was a Democrat and his popularity was shown in his repeated election in a county that normally was strongly Re- publican.
W. H. Noyes, who followed Clark Green as sheriff, had previously held office as county recorder and made a good official. He was of a kind-hearted and liberal disposition, careless in acquiring money, but ever ready to do another a kindness, even at the sacrifice of his own pocketbook. In his office as sheriff he was always ready to do his duty, but at the same time strove to make the service as pleasant as possible to the defendant. He was fol- lowed by S. A. Carter, O. F. Morgan, George Coleman, Theodore Price, J. G. Geister and H. W. Geister, who have all ably filled- the office.
One of the popular clerks of courts in the history of the county was Frank A. Turner. An expert penman, a first class office man, with a genial smile, obliging temperament and a desire to work, he was the favorite among attorneys. He possessed a thorough legal knowledge and was able to assist many an attorney in a perplexing question of practice. His kind-heartedness was proverbial and while he did not leave the office with much of this world's goods to his credit. he left it with the high regard and affection of
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every court official. Indicative of this was the beautiful diamond watch charm presented to him by the members of the bar at the last term of court which he attended. The method of presentation was novel. Turner had been served with a subpoena in regular form requiring his attendance before court as a witness and without knowing just what case it was, but thinking it was one of the many matters wherein he was frequently called to testify. he was made to take the oath of a witness and then required to testify as to his length of service of clerk and asked to give his opinion as to his quality of service rendered to the public. This line of questioning was followed by a neat presentation speech by W. D. Boies, in which the questions un- answered by Turner were explained to him and it was with tears in his eyes that he accepted the emblem of love and appreciation, and attempted to ex- press his thanks.
W. S. Armstrong, clerk for 1893 to 1896, inclusive, made a good record in his office. He was well qualified for the position and possessed in con- nection with his ability an affability and delightful personality that made hin many friends. S. A. Martin, E. R. Wood, H. C. May and W. J. E. Thatcher have all made good clerks. Mr. Thatcher, from his legal knowledge, has al- ways had a high sense of his duty and has especially been diligent in keeping up the work of his office, regularly checking bonds in probate matters and requiring filing of reports and schedules that have been omitted by representa- tives of estates and persons under disability. His administration has greatly expedited the settlement of estates and completion of court business.
OFFICE OF SHERIFF.
The following is a list of the sheriffs of O'Brien county, with their terms of office in calendar years unless otherwise stated: L. McClellan, from February 6, 1860, to January 1, 1861; Archibald Murray, 1861; George Hoffman, 1862-1865; Charles M Stevenson, 1866-1867; Chancy Chesley, 1868: S. B. Hurlburt, 1869-1870; George A. McOmber, 1871 ; Ed. A. Nissen, 1872-1877: Mart Shea, 1878-1881 ; W. C. Green, 1882-1889; W. H. Noyes, 1890-1893; S. A. Carter. 1894-1897: George Coleman, 1898-1901 ; Oscar F. Morgan from January 1, 1902, to January 20, 1902 (died January 20, 1902). After Mr. Morgan's death Dr. F. E. Brown, coroner, acted as ex-officio sheriff for ten days pending the appointment of George Coleman, who acted under appointment for the balance of the term; Theodore Price, 1903-1967; Joseph G. Geister. 1907-1910; Henry W. Geister, 1911-1914.
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CLERK OF COURTS.
Relating to the office of clerk of courts, it is difficult from the records up to January 1, 1871, at all times to determine either who was elected, who qualified or who in fact was clerk. At the first election, February 6, 1860, it is definite that Archibald Murray was elected and that Henry C. Tiffey was elected for the term beginning January 1, 1863, and served until January I. 1866, though in one place it would appear that John Moore acted as such at a time in 1865, though that might be explained in that he might have acted as deputy. John Moore was, however, elected for the term beginning January I, 1867, and he later resigned and Archibald Murray was appointed in his place, though both the resignation and appointment are undated, though prob- ably in 1868. At the regular election held November 9, 1868, Hannibal H. Waterman was declared elected, but evidently did not qualify, as the record again shows another appointment of John Moore March 13, 1869. It also appears that John Stratton acted in 1868, but by what process he got there the record does not disclose. However there was but little work for a clerk of courts to do, other than to draw the salary, until the settlers arrived in 1870. The first real clerk of the courts was Stephen Harris, who was elected and assumed the office January 1, 1871.
The following is a list of clerks of courts since said date, each assuming his duties on January Ist of the year named: Stephen Harris, 1871-72; A. H. Willitts, 1873-1878; Frank N. Derby, 1879-80; W. N. Strong, 1881-82; Frank A. Turner, 1883-88: John W. Walter, 1889-92: William S. Arm- strong, 1893-96: Scott A. Martin, 1897-1900; Ed. R. Wood assumed the office January 1, 1901. His health failing and later resulting in his death, John F. Boyer was, in May, 1903, appointed clerk to fill the vacancy, first caused by his sickness and inability to act and later death. Mr. Boyer served until November election for 1904, when William H. Downing was elected for the vacancy and served six weeks; Harry C. May, 1905-1908; W. J. E. Thatcher. 1909-1914.
CHAPTER XVIII.
THE O BRIEN COUNTY BAR.
Popular comment is ever ready to portray the result of a lawsuit as enriching the lawyer. Even a lawyer has been known to speak of his suc- cessiul cases and the rich fees he earns. But while he is continuously reap- ing, the lawyer never seems to accumulate wealth. I think it was Webster who said that the lawyer's life was that of one who worked hard, lived well and died poor. D. A. W. Perkins once wrote: "Life is a battle, with each to wage his own individual warfare, and when one takes upon himself the burden, and advertises to fight the battles of other people, along with his own, he enters upon an arena of some grief, and much responsibility and without sufficient compensation." Some of the lawyers of the county have grown rich, but not one can trace his entire wealth to the legitimate practice of law An investment in land has helped many. and others have won riches in other lines. The glamour and excitement of striving to win, the hope of victory, and satisfaction of pleasing a client and proving correctness of opinion, have spurred many an attorney and kept him in the practice just for pure love of the game, when he has perhaps realized that his talents would be better re- warded in another line of action. The vocation of a lawyer is an official position, not a business. An officer of the court, he is charged with specific duties and responsibilities. More than any other licensed professional man, the lawyer must not only have a license to practice, but he must qualify as an officer of the government, swearing to faithfully perform the duties of his high office, maintain the respect due the courts, to encourage and maintain only just actions, use only such means as are consistent with truth, and never reject for any consideration personal to himself the cause of the defenseless and oppressed.
No one, considering the records of the country lawyer, as written in the pages of O'Brien county history, can receive any encouragement to believe that the lawyer's life leads to financial gain. Most of the lawyers were poor in the wealth of the realm, but the industrious and honest receive the just
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rewards of a good name and the kindly esteem of their neighbors. If there have been any lawyers in the county who have not lived the righteous life, who have strayed from the path of duty and not lived up to the high ideals of the legal profession, may charity permit us to leave the ugly record out of these pages.
It is with some trepidation that the associate editor of this work has consented to write the history of the lawyers-many of them his contem- poraries-and risk the charge of unfair criticism. Those that are dead and gone have left their record and we shall try to truthfully portray their work as viewed from the present day. Those that are yet among us have a future before them; they may brighten or blacken the present prospect. We shall try to restrict our discussion of merits and demerits more to the past genera- tion than the present, but do justice to all. The lawyers have all left their impress on the history of the county, some for good, and some for ill. Fre- quently leaders in their community, the nature of the practice necessarily connects them closely with many of the industries and public and private business of the community. .
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