USA > Iowa > Shelby County > Past and present of Shelby County, Iowa, Vol. 2 > Part 12
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SHIELBY COUNTY, IOWA.
of Shelby county since 1878. Mr. Smith formed a partnership with P. C. Truman. then in Harlan. A. K. Riley came in April, 1879. S. A. Burke in 1878, J. G. Myerly in January, 1880, D. O. Stuart in August, 1880. G. W. Cullison in January, 1881. Warren Gammon, a native of Maine, came to Harlan in 1879, and in November. 1881, formed a partnership with N. W. Macy, who had come to Harlan in November, 1879. the firm name being Macy & Gammon. Cyrus Beard came in October, 1878. He became a member of the firm of Beard & Myerly.
One of the most distinguished of the early attorneys was the Hon. Platt Wicks, a native of Indiana. He received a collegiate education from a Baptist college in his native state and had had some experience in the practice of law as a district prosecuting attorney in Indiana before coming to Harlan. which was in 1869. Hle represented Shelby county in the Legislature in the sessions of 1879 and 1881 and was a very prominent candidate for speaker of the house. a position which he lost by but a few votes. Ile, for many years, was a trustee of the Iowa State College at Ames. He was an able man and was prominent in all local affairs during his residence in Harlan and being a man of force and some brusqueness of manner, with many warm friends, he had also a number of rather bitter enemies. In 1890 he went to Pueblo, Colorado, which county he represented in the Legislature, where again he was a leader. He was elected as a free-silver Republican. He built and lived in the house in Harlan now occupied by Dr. E. A. Moore.
Hon. Thomas H. Smith, familiarly known as "Tobe," is the oldest con- tinnous practitioner in Shelby county. having come to Harlan in the spring of 1878, at which time he formed a partnership with P. C. Truman. Mr. Smith served as one term as state senator for the Cass-Shelby district. He, at one time, served as county attorney of Shelby county.
In November, 1879, there located in Harlan, an attorney who was to make his mark in western Iowa, Hon. N. W. Macy, now a resident of Pasa- dena, California. He came to Harlan from Adel, Iowa, where he had been practicing immediately following some years experience as a school teacher in eastern Iowa. Possessed of fine native ability and equipped with a college education both in liberal arts and law, received in the State University of lowa at Iowa City, he at once took high rank at the Harlan bar. He first formed in 1879 a partnership with D. W. Smith. He later formed a partner- ship with Warren Gammon. In 1888, he contested with Cyrus Beard for the delegation from Shelby county to the judicial convention. having at that time become a candidate for district judge of the fifteenth judicial district of Iowa. Being successful in carrying the delegation of Shelby county, his name was
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presented to the judicial convention held at Red Oak in August, 1888. where on the fifteenth ballot he was nominated. He then served continuously for about twenty years, with an exceptionally fine record, having few reversals of his decisions by the state supreme court.
Hon. Cyrus Beard. above referred to. coming to Harlan in October, 1878, was destined to attain high rank in his profession. For some years he was in practice at Harlan with J. G. Myerly, now a citizen of Des Moines, for some years its postmaster, and lately a candidate for the Republican nomination for Congress. Moving to Wyoming, Mr. Beard was elected to a position as justice of the supreme court of that state, to which position he has been recently re-elected.
Another attorney who came from Adel, Iowa, at the same time that Judge Macy came, was D. W. Smith. Shortly after entering practice at Harlan, he became deputy treasurer of Iowa and did not again return to Harlan.
In August, 1880, D. O. Stuart came to Harlan from Des Moines. He was graduated from Simpson College in 1872 and has been continuously practicing in Harlan since coming here in 1880, and is second in point of longest continuous practice in Harlan. Mr. Stuart has tried many cases of importance.
In 1881, George W. Cullison began the practice of law in Harlan. He had previously been here as instructor in the Shelby county teachers' institute. but had been admitted to the bar in southern Iowa in 1876. He had been graduated from the State Normal School of Missouri at Kirksville in 1870 and had much more than a local reputation as a teacher in Iowa. In January, 18SI, he bought out the partnership interest of Attorney P. C. Truman and thereupon became a partner of Thomas H. Smith, under the firm name of Smith & Cullison, which for many years was engaged in very important litigation in Shelby county and in other counties. Mr. Cullison was last fall a candidate for district judge on the non-partisan ticket.
D. S. Irwin, who came to Greeley township. Shelby county, in 1870, was admitted to the bar at circuit court in Harlan in March, 1881, and for some years practiced law at Irwin, Iowa, where he yet resides. In 1870, he wrote some interesting chapters on Shelby county history for the Shelby County Record.
Probably the first young man who grew up in Shelby county to be ad- mitted to the bar was Jesse B. Whitney, who began the practice of law in Harlan in 1887. He subsequently served two terms as county attorney of Shelby county.
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SHELBY COUNTY, IOWA.
In 1888, Hon. H. W. Byers, a man destined to occupy a large place at the lowa bar and in the Republican politics of Iowa, was admitted to the practice of law. He succeeded largely to the practice of Macy & Gammon when Mr. Macy went on the district bench. In 1890 he formed a partner- ship with Edmund Lockwood. subsequently a very active mayor of Harlan, who had a superior legal education received in the law departments of the University of Michigan and in the University of Columbia. This firm was on one or the other side of the most important litigation in Shelby county for about fifteen years. Mr. Byers served two terms in the General As- sembly of Iowa. was unanimously elected speaker of the House, served three terms as attorney-general of Iowa, was temporary chairman of one state Republican convention of Jowa, was a prominent candidate for the Repub- lican nomination for Congress from the ninth district, and is now corporation counsel of the city of Des Moines.
In 1891, two other young men brought up in the county, T. R. Mockler and C. H. Whitney, were admitted to the bar and began practicing in Harlan. Mr. Mockler served two terms as county attorney. subsequently moving to Bismark, North Dakota, where he now resides. He was elected to the North Dakota Legislature as a Republican and is now prominent in the political and legal affairs of North Dakota. Mr. Whitney served as county attorney and removing to Nebraska became county judge at Hartington, Nebraska and later was Democratic candidate for attorney-general of that state. He now resides in California.
In 1902, two young men began their legal careers in Shelby county, Will Pomeroy, son of R. M. Pomeroy, at Shelby, and Tom C. Smith at Harlan. Mr. Smith is a son of the famous pioneer attorney of Harrison county, Hon. "Joe" Smith. Both of these young men are in practice elsewhere, Tom C. Smith having served as county attorney of Harrison county, and Mr. Pom- eroy in the office of prosecuting attorney in an Oklahoma county, in which state he now resides. Another bright young man who began the practice of law in Harlan a little later was Dan R. Perkins, who was in partnership with Hon. Thomas H. Smith. Mr. Perkins removed to North Dakota where he held for some years the position of county judge of his county.
Two brilliant young students of law received early guidance in the law office of Byers & Lockwood. One was H. P. Burke, a son of John T. Burke. an early pioneer of Douglas township; the other. Viggo Lyngby, a native of Denmark and graduate of the law department of the famous University of Copenhagen. Mr. Burke is now and has been for some years one of the best
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known district judges of the state of Colorado. and Mr. Lyngby is practicing law in Council Bluffs and is Danish vice-consul for lowa.
Edward S. White, a son of J. W. White, of Jackson township, inmedi- ately after graduation from the law department of the University of Mich- igan in 1902, entered the practice of law at Harlan. Through the kindness of the people of Shelby county he was county attorney of Shelby county for three terms, and at present is city solicitor of Harlan and engaged in general practice of the law.
For several years L. B. Robinson, formerly of Oakland, lowa, was in partnership with G. W. Cullison under the firm name of Cullison & Robin- son. Mr. Robinson was mayor of Harlan for some time and as such officer rendered very careful and effective service.
In 1904 James C. Byers (a son of H. W. Byers) after graduation from the University of Michigan began the practice of law at Harlan in the firm of his father, the name of the firm then becoming Byers, Lockwood & Byers. James Byers became mayor of Harlan. He is now practicing law at San Diego. California.
John P. Hertert, a son of E. M. Hertert, of Harlan, after graduation from the law department of the University of Michigan, began the practice of law at Harlan in 1907. He is the present county attorney of Shelby county, which office he has held for two terms. He was re-elected last fall.
Shelby C. Cullison. a son of G. W. Cullison, began the practice of law with his father in 1907 under the firm name of Cullison & Cullison, soon after graduation from the law department of the State University of Iowa.
V. H. Byers, a nephew of H. W. Byers, at once upon graduation from the law department of Drake University in 1912, became the Harlan part- ner of the firm of Byers & Byers. Lately this firm has taken into partnership Ernest M. Miller, a graduate of the law department of Drake University of the class of 1914. He is a son of Jerry Miller, late a resident of Elk Horn. The firm name is now Byers, Byers & Miller.
George B. Gunderson, an alumnus of both the literary and law depart- ments of the State University of Iowa, in 1913 became a member of the firm of Smith & Gunderson. He is now mayor of Harlan and was last fall the Republican candidate for county attorney of Shelby county.
The resident attorneys of Harlan are, therefore. T. H. Smith, D. O. Stuart. G. W. Cullison, Shelby C. Cullison, J. B. Whitney, V. H. Byers. Ernest M. Miller, John P. Hertert, George B. Gunderson and E. S. White.
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SHELBY COUNTY, JOWAN.
SOME NOTED CASES.
A noted case that was tried in the circuit court of Shelby county at Harlan in the late seventies was that of the Chicago, Rock Island & Pa- cific Railroad Company vs. Grinnell. It does not appear that any resi- dent Shelby county attorneys were in the case. The defendant was repre- sented by Sapp. Lyman & Ament. of Council Bluffs, and the railroad com- pany by Thomas F. Withrow, and by the firm of Wright, Gatch & Wright. who, if I am correctly informed, were Des Moines attorneys. During the seventies there had been much trouble between a number of homesteaders and the Rock Island Railroad Company, particularly in Jefferson township. It will be recalled that when the Rock Island Railroad Company was com- pleted to Council Bluffs on June 6, 1869, it had taken a different route through Shelby county from the route originally surveyed for the Mississippi & Mis- souri Railroad Company, for which the Dodge survey was made. Mr. Grin- nell had settled upon land in Shelby county in 1872. intending to acquire and occupy it as a homestead under the laws of the United States and had made application as required by the homestead laws. When, however. he sought to file these applications in the United States land offices, they were refused, hence the litigation.
The circuit court of Shelby' county decided against Mr. Grinnell. the court holding that the lands upon which Mr. Grinnell had settled were rail- road lands and had passed under the grant to the railroad company by the United States. The case was appealed to the state supreme court of Iowa and decided by that court at the June term, 1879. the supreme court sustain- ing the decision of the circuit court of Shelby county. The gist of the de- cision was that Congress, by an act approved June 2. 1864, authorized the Mississippi & Missouri Railroad Company to modify and change the location of the uncompleted portion of its line. at that time the railroad having been completed a distance of one hundred and thirty miles, or from Davenport to Kellogg. The Rock Island Company, in 1866, became purchaser of the Mississippi & Missouri Railroad Company and all its title and interest in any lands originally granted by the United States to the first company. The supreme court of Iowa also held that under the act of 1864 the railroad com- pany was authorized to select lands under certain conditions within twenty miles of its line, the original act allowing selection of lands only within a fifteen-mile limit. Mr. Grinnell's land. it appears, lay between the fifteen- mile limits of the first grant and the twenty-mile limits of the later act.
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Submitted with the Grinnell case were twenty-three other cases brought against numerous persons in different courts of the state of Iowa. The decision by the state supreme court, however, did not end the matter. as the Shelby county Grinnell case was appealed to the supreme court of the United States, where it was decided March 21, 1885, by an affirmance of the judg- ment of the supreme court of Iowa. There was one dissenting opinion, that of Mr. Justice Bradley.
Many cases were tried in the district and circuit courts at Harlan, which. on appeal to the state supreme court of Iowa, made law for the whole state on important questions. Among these was the case of Coenen & Mentzer v. Staub et al .. tried before Hon. A. B. Thornell about 1886 or 1887. It was clainied by the firm of Coenen & Mentzer that it was entitled to a mechanic's lien against real estate to secure the cost of lumber used in a sidewalk. It was held by Judge Thornell that. inasmuch as the lien was given only against property on which the improvement was situated, there could be no mechanic's lien in this case, for the reason that the sidewalk was not situated upon the land, but upon the street. The attorneys in this case were Beard & Myerly, of Harlan, for the plaintiffs, and Fremont Benjamin, of Avoca, for the de- fendants.
Another important case tried in the district court at Harlan before Judge George Carson in 1891, was that of Gollobitsch vs. George S. Rainbow. Sheriff of Shelby County, these questions being involved in that case: First. it was contended that a deposition taken could not be used in evidence for the reason that the notice of the issuing of a commission to take it was served by a deputy of the defendant sheriff, and that where a sheriff was a party to the suit, his deputy could not serve any of the notices involved in the suit ; and, second, that for the same reason the deputy sheriff could not impanel the jury.
Judge Carson held that the objections to the acts of the deputy sheriff were not good, but on appeal to the state supreme court of Iowa, the decision of Judge Carson was reversed. The attorneys appearing in the case were B. I. Salinger for the plaintiff, who had sought the recovery of certain per- sonal property and who appealed the case, and D. O. Stuart and Smith & Cullison for the defendant.
The case of State vs. Book, found in the 41st Iowa Reports, at page 550. decided at the December term, 1875. settled an important proposition of criminal law. The defendant was charged with running a billiard hall where persons played billiards or pool with the agreement that the loser at the game should pay the proprietor for the use of the tables. The case was tried
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in the district court at Harlan before Judge Reed, who instructed the jury, of which H. M. Cook appears to have been foreman. that playing the game under such agreement constituted gambling, and that a person so permitting persons to play was guilty of maintaining a gambling house. This was the first time that this proposition was before the state supreme court, which affirmed the decision of Judge Reed. Up to that time most persons had thought that playing billiards or pool in this way did not constitute gambling. The attorneys appearing in the supreme court were M. E. Cutts, attorney- general of lowa, and Clinton, Hart & Brewer, of Council Bluffs, for the defendant, who appealed the case.
Another interesting case was that of Bays v. Hunt, found in the 60th Iowa, at page 251. The plaintiff in this case brought suit against the de- fendant for damages by reason of alleged slander. It appears that the plain- tiff was a candidate for office. It was held by the district court at Harlan, and by the state supreme court on appeal, that when a man is a candidate for office, seeking the support of the electors, a person may not be held liable for slander when he, without malice and in good faith, repeats to electors matters that have been told him concerning the candidate even though untrue, but which he believes, provided he makes such statements for the sole purpose of advising electors of the real character and qualifications of the candidate. The court. in other words. held that the speaking of such words under such conditions was privileged and that the defendant was not liable. Sapp & Lyman, of Council Bluffs, appeared for the plaintiff-appellant and Smith & Cullison for the defendant-appellee.
The mysterious disappearance, in August, 1896. of Francis Richardson, a wealthy bachelor who for many years had made his home at various places in the eastern part of Shelby county, resulted in litigation of large propor- tions for Shelby county. Mr. Richardson was a somewhat eccentric man, who for many years had loaned large sums of money to the farmers of the eastern part of the county. He suddenly disappeared and it is believed that he was murdered, although no definite clue was ever discovered. fixing the guilt for the commission of this crime. At the time of his death he owned nineteen hundred acres of improved land in Shelby and Audubon counties and besides had under his control perhaps forty thousand dollars worth of personal property, chiefly notes secured by real estate mortgages on Shelby and Audubon county land. Important litigation arising out of this state of facts was conducted by Byers & Lockwood and Cullison & Robinson of Har- lan, with some non-resident attorneys. The most important case, perhaps, which was tried, involved the question of the ownership of certain notes and
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securities in the possession of Mr. Richardson at the time of his disappear- ance, which, however, were made payable to his brothers and other relatives. The administrator had surrendered these notes and securities to the payees named therein, and suit was brought to have it declared by the court that the said notes and securities belonged to the estate. The administrator, how- ever, was sustained in his action. The case is found in Vol. 138. Iowa Supreme Court Reports at page 669.
STORIES OF THE BAR.
Many interesting stories are told of incidents occurring during the, progress of trials in Shelby county. For example the Shelby County Record of January 19, 1876. tells this story: "DeSilva had a case last Monday before a justice in the colony. Witness started to say something that would hurt his part of the case, when DeSilva said: 'Henry! Henry! He mustn't say that.'"
That the early unmarried members of the bar did not have their minds wholly absorbed by the law is proved by this local item, appearing in one of the Harlan newspapers in the seventies: "It is reported that on the evening of the lecture at the supper table a young lawyer, whose name is became so much absorbed in looking at the lecturess that he was caught mak- ing futile efforts to eat soup with his fork."
In the early days the members of the bar seem to have devoted more attention to one another than the occasion justified when perhaps they ought to have been keeping their minds on the law and evidence of the case which they were trying. During the progress of the Gardner-Zimmerman trial in May, 1887, annoyed by the constant quarreling of counsel. the court, while waiting for a witness turned to the attorneys and remarked. "Now, gentle- men, we have a few minutes' leisure. You will please devote the time to quarreling." It is said that this remark of the court set the attorneys back to such an extent that they finished the week without exchanging another cross word.
If tradition bears the torch of truth in the matter, several of the Harlan attorneys have had some difficulty in handling Scriptural quotations safely. One attorney, it is said. wishing to emphasize before a jury that flight of one charged with crime indicated a guilty conscience. intended to say. "The evil flee when no man pursueth," but what he insisted on saying was, "The evil pursue when no man fleeth," which version he repeated with great emphasis several times when he thought he detected an effort on the part of
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the other attorneys to laugh him out of court. Another attorney, deeming it his duty to correct the erring brother, declared it as his fixed opinion that "No man pursueth when the evil fleeth."
On another occasion at the Methodist church, when the church was crowded. a legal brother intending to edify the congregation by quoting the words, "May my tongue cleave to the roof of my mouth and my hand not forget its cunning." surprised and delighted his hearers by declaring solemnly. "May my hand cleave to the roof of my mouth and my tongue not forget its cunning."
The author is indebted to Hon. G. Smith Stanton, whose recollections occur elsewhere in this volume, for the following story of early days in court at Harlan. [The Joe Smith therein mentioned was the father of Tom C. Smith who practiced law in Harlan] :
"Every good story having a Western brand was during the war re- peated by the friends and eneemies of President Lincoln as Old Abe's last. One of the stories appropriated as one of Abe's actually originated in the court house at Harlan, Shelby county, Iowa, and a lawyer by the name of Joe Smith was the originator. As already stated. my place on the Pigeon was about half way between the county seats of Shelby and Harrison counties. I often entertained the court and bar as they passed from one county seat to the other. They were a witty and bright lot of fellows, but poor in purse. Their clothes had seen long service and represented all the styles before the war. Joe was a great wit, and. unfortunately, always broke. Once while attending court at Ilarlan and while waiting for his own case to be called, he got quite interested in the case which was being tried. The seat of the trousers of one of the attorneys who was trying the case was worn through, and as he wore a sack coat and while addressing the jury would lean forward. one could see through the hole in the trousers the white shirt within. A philanthropic brother attorney had drawn up a subscription paper and passed it around among the lawyers for signature. the purport of which was to buy the brother attorney a new pair of trousers. Seventy-five cents in those days would have accomplished the mission. When it came Smith's turn to sign, he, being broke as usual, wrote the following endorsement on the sub- scription paper : "On account of my financial condition I am unable to con- tribute anything toward the object in view."
In the early days of the county there resided therein a Swede who had been a rather rough citizen, it is said. He subsequently left the county, and one day word came back that he had died while fighting a prairie fire. A case arose in the district court in some way involving the Swede's career.
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G. W. C. addressing the jury said. "They tell us died fighting fire. and for aught that you or I may know, gentlemen of the jury, he's fighting fire yet."
ROLL OF THE BAR OF SHELBY COUNTY ( PAST AND PRESENT. )
H. W. Byers. James C. Byers. V. H. Bvers, H. P. Burke. Will S. Burke. S. A. Burke, Cyrus Beard. J. V. Brazie. F. S. Carroll. George W. Cullison, Shelby C. Cullison, S. G. Dunmore, J. W. DeSilva, R. P. Foss, E. Y. Green- leaf, Warren Gammon, George B. Gunderson. John P. Hertert. D. S. Irwin, J. D. Keat, Edmund Lockwood, Jolin Ledwich, James Ledwich, John H. Louis, Viggo Lyngby, Ernest M. Miller. T. R. Mockler. N. W. Macy, J. G. Myerly, C. W. Oakes, William Pratt. D. R. Perkins, Will Pomeroy, D. T. Quinn, A. K. Riley. W. B. Rowland, L. B. Robinson, Thomas H. Smith, Thomas C. Smith. D. W. Smith, D. O. Stuart. Joseph Stiles. Lafe Thompson, P. C. Truman, Platt Wicks. C. H. Whitney, J. B. Whitney. W. J. Wicks, John Wallace, Edward S. White, J. E. Weaver, John Watson.
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