USA > Indiana > St Joseph County > A history of St. Joseph County, Indiana, Volume 1 > Part 35
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At the October term, 1846, Joseph H. Mather succeeded to the office of prosecut- ing attorney.
At the October term, 1848, George Pierson was prosecuting attorney, and at the April term, 1849, Theodore S. Cowles. Philo Ben- nett was associate judge at the September term, 1851, and James S. Frazer, afterwards judge of the supreme court, was prosecuting attorney at the same term.
Sec. 7 .- SESSIONS OF THE COURT UNDER THE NEW CONSTITUTION .- Under the consti- tution of 1851, which took effect on the first day of November in that year, the offices of president judge and associate judges were discontinued. The office of circuit judge sim- ply took the place of president judge, al- though the several president judges were con- tinued in office until the ends of their re- spective terms. By the act of June 18, 1852,ª re-arranging the circuits, it became doubtful on what day the October term of the St. Joseph circuit court for that year should be-
gin. Accordingly Judge Robert Lowry, a. Special and Local Acts, 1851-2, pp. 102-105.
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HISTORY OF ST. JOSEPH COUNTY.
who was here to preside at that term, en- tered the following order :
"It being the opinion of the majority of the bar of this court that there may be much doubt whether court ean be legally held in this county commencing on this day, under the laws heretofore in force; that by the aet of the last session of the general assembly the old law may be considered as being repealed and a different day fixed for holding said court in this county. It is therefore ordered by the court that all writs, suits, complaints and proceedings pending in said court, both civil and criminal, be and are hereby con- tinued until court in course, and that publi- cation hereof be made in the St. Joseph Val- ley Register. And court adjourned until court in course.
"Signed October 4th, 1852. "R. LOWRY."
At the February term, 1853, Thomas S. Stanfield presided as "judge of the ninth judicial eireuit, and ex officio judge of the St. Joseph circuit court," as was then the official title of our circuit judge. Don J. Woodward was the prosecuting attorney at this term. Alvin S. Dunbar appeared as deputy prosecutor under Mr. Woodward for several terms.
There was a special June session in the year 1853, at which the Hon. William E. Stuart, one of the judges of the supreme court, presided, for the reason that Judge Stanfield had been interested as attorney in several eases then on the docket.
At the April term, 1855, Morgan H. Weir was prosecuting attorney, but frequently ap- peared by William G. George, as deputy, or as special prosecutor appointed by the court. Mr. Weir resigned during the next year.
At the April term, 1857, Albert G. Deavitt was judge and Mark L. De Motte, who had been appointed to fill a vacaney caused by the resignation of Judge Stanfield, became ill after his appointment and was succeeded by John B. Niles, prosecuting attorney. Mr. De Motte, prosecuting attorney, usually ap-
peared by William G. George, and sometimes by James Davis, special prosecutors.
At the April term, 1858, Andrew L. Os- born was judge. At this term the court pro- mulgated and had spread of record a set of rules for the government of the business of the court. Reuben L. Farnsworth was ap- pointed special prosecuting attorney. As Judge Osborn was disqualified to try a num- ber of cases in which he had been attorney, there was a special term for June, 1858, at which Charles H. Test, judge of the twelfth circuit, presided. At the April term, 1859, Thomas S. Stanfield was appointed special judge, and William B. Biddle appeared as prosecuting attorney. In April, 1861, D. J. Phillips was prosecuting attorney, and in April, 1865, Aaron Gurney.
At the April term, 1867, Alvin S. Dunbar was appointed special judge, to hold for the term instead of the Hon. Andrew L. Osborn, who was ill. At the October term of the same year William H. Calkins, afterwards representative in Congress, was prosecuting attorney.
At the April term, 1871, Thomas S. Stan- field was again circuit judge, and at the same term Michael L. Essick became prosecuting attorney.
At the March term, 1873, the thirty-second judicial circuit was formed, consisting of St. Joseph and Laporte counties. Four terms, each for four weeks, were assigned to St. Joseph county. Judge Stanfield continued to preside as judge of the new circuit. An important order for the rearrangement and improvement of the court room and the elerk's and sheriff's offices was made at this term. It was one of the most commendable acts of Judge Stanfield's publie life, though for a time it oeeasioned much adverse eriti- eism.
At the June term, 1873, George Ford, by appointment of Governor Thomas A. Hen- drieks, appeared as prosecuting attorney ; and at the December term of that year James A. Crawley became prosecutor. At the De-
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HISTORY OF ST. JOSEPH COUNTY.
cember term, 1875, George Ford again at- tained to the office, and continued to hold it for many years, until he was elected to congress.
At a special term, opened on July 25, 1876, the Hon. Horace P. Biddle, judge of the su- preme court of the state, presided in the trial of important cases, Judge Stanfield hav- ing personal interests, by reason of which he deemed it improper for him to preside.
At the December term, 1876, the Hon. Daniel Noyes appeared for the first time as judge of the St. Joseph circuit court. He continued thereafter to preside for the period of eighteen years.
At the March term, 1885, Andrew J. Eg- bert was prosecuting attorney, and was suc- ceeded at the December term, 1887, by Abra- ham L. Brick, who, like Mr. Ford, held the office until his election to congress.
An adjourned term of court was held, be- ginning Jnly 23, 1889, at which the Hon. Joseph A. S. Mitchell, then a member of the state supreme court, took the bench for the trial of an intricate case involving the rights of the various owners of the water power generated by the dam in South Bend over the St. Joseph river. By agreement of par- ties Judge Mitchell appointed former su- preme Judge James S. Frazer referee, to hear and report upon the evidence. The case was finally adjudicated to the satisfac- tion of all parties, chiefly by reason of the measurements and well-considered system of weirs devised by civil engineer John F. Meighan and adopted by the court.
Judge Stuart, Judge Biddle and Judge Mitchell were the only judges of our supreme court to sit in the St. Joseph circuit court in the trial of causes during their terms as judges of our highest court. Almost as great honor was done us by that eminent jurist. James S. Frazer, who, however, had left the supreme bench before sitting here as referee in our noted hydraulic case.
In December. 1891, Peter D. Connolly was prosecuting attorney. He was one of our
most promising young lawyers, but very soon failed in health. His deputy, Francis M. Jackson, acted for him during the greater part of the time, until the death of Mr. Con- nolly in the spring of 1893. Mr. Jackson was appointed by the court special prosecutor for the May term, 1893, and soon after was com- missioned by Governor Claude Matthews to fill the office until the beginning of the term of Mr. Connolly's successor, Oliver M. Cun- ningham, in the fall of the same year.
In 1894 the Hon. Lucius Hubbard took his seat as judge of the St. Joseph circuit court, and in 1895 the Hon. John C. Richter, now judge of the Laporte circuit court, be- came prosecuting attorney of the circuit. In 1897 St. Joseph county became the sixtieth cireuit of the state, and Judge Hubbard was retained as first judge of the new circuit. Thomas W. Slick was the prosecuting at- torney.
In 1900 the Hon. Walter A. Funk became judge, an office to which he was last year re- elected. In 1901 George E. Clarke became prosecuting attorney. He held the office until 1905, when he was succeeded by George A. Kurtz. The present prosecuting attorney, Joseph E. Talbot, took his office at the be- ginning of the current year.
Of the judges of the St. Joseph circuit court, Samuel C. Sample, Thomas S. Stan- field, Albert G. Deavitt, Lucius Hubbard and Walter A. Funk were at the time of their incumbency citizens of this county, as were also the following named prosecuting attor- neys : Samuel C. Sample, Joseph L. Jernegan, George Ford, Andrew J. Egbert, Abraham L. Brick, Peter D. Connolly, Francis M. Jack- son, Oliver M. Cunningham, Thomas W. Slick, George E. Clarke, George A. Kurtz and Joseph E. Talbot. The remaining judges and prosecuting attorneys were citi- zens of other counties attached to our judicial circuit.
III. THE PROBATE COURT.
Acting under the provisions of article fifth
1
Ato Bniek.
THE NEW YORK PUBLIC LIBRARY
Astor, Lenny and Tilden Fou St ne, 15.2
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HISTORY OF ST. JOSEPH COUNTY.
of the constitution of 1816, authorizing the establishment of courts inferior to the eir- enit court, the legislature, by an act approved February 10, 1831,ª provided for the or- ganization in each county of a probate court, consisting of one judge, to be elected every seven years by the voters of the county. The court was given "original and exclusive ju- risdiction in all matters relating to the pro- bate of last wills and testaments,-granting of letters testamentary, letters of administra- tion, and of guardianship; including also "the protection of minors, idiots and lunatics, and the security and disposition of their per- sons and estates." The probate court was also given concurrent jurisdiction with the circuit court in actions "in favor of or against heirs, devisees, legatees, executors, administrators, or guardians, and their sureties and representatives;" also "in the partition of real estate, " and some other like cases.
The procedure as to pleadings, writs, trial, judgment, executions, etc., was in all respects similar to that in the circuit court, including the right to trial by jury. There might be an appeal either to the circuit court, or directly to the supreme court. The clerk of the cir- cuit court and the sheriff of the county were alike officials of the probate court. As finally fixed by statute. the court met regularly on the second Mondays of February, May. August and November .- except in case the circuit court or the board of county commis- sioners should be in session on such day, when the probate court was to sit on the suc- ceeding Monday. The sessions of the court were limited to six days, and the compensa- tion of the judge was three dollars per day.
Sec. 1 .- THE FIRST SESSION .- The first term of the St. Joseph probate court was held on the fifth day of January, 1832. This term was held by the associate judges of the cir- cuit court, as provided in the act of Febru-
a. R. S., 1831, pp. 154-180. See also Act ap- proved Feb. 17, 1838; R. S., 1838, pp. 172-199; and R. S., 1843, pp. 664-670.
ary 10, 1831, for the organization of the pro- bate court, there being at the time no pro- bate judge qualified to hold the court. Pre- vious to the holding of this term of court the clerk, as authorized by the same statute, had issued letters testamentary on one estate, and letters of administration on another. The record of those first letters issued in this county, and also the record of the first ses- sion of our probate court, were entered up in the order book as follows:
"Joseph Garwood, Ex" - of Jonathan Garwood.
"On application of Joseph Garwood to the clerk of the St. Joseph probate court, let- ters testamentary issued to the said Joseph Garwood on the estate of his father, Jonathan Garwood, late of said county, deceased. in vacation of said court, by his filing bond with John Wills and John Drulent as his securi- ties. in the sum of five thousand dollars.
".John D. Lasly, Adm™ of Basile Prunie.
"On application of John D. Lasly to the clerk of the St. Joseph probate court, letters of administration issued to the said John D. Lasly on the estate of Basile Prunie, late of said county. deceased, in vacation of said court, by his filing bond with Alexis Coquil- lard and Peter F. Navarre as his securities. in the sum of five hundred dollars.
"At the first term of the St. Joseph pro- bate court, begun and held on Thursday, the fifth day of January. A. D. 1832. at the house of Calvin Lilly, in the town of South Bend. in a room furnished by Alexis Coquillard, it not being convenient for said Coquillard to furnish a room in his house, as provided by law; before the honorable John Banker and Chapel W. Brown, associate judges of the St. Joseph circuit court and sole judges of this court. there being no probate judge qualified in said county according to law to hold court.
"At the hour of eleven o'clock appears John Banker and produces a commission from
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HISTORY OF ST. JOSEPH COUNTY.
his excellency, J. Brown Ray, governor of the state of Indiana, commissioning him, the said John Banker, an associate judge of the St. Joseph circuit court for term of seven years from the eleventh day of August, 1830, dated at Indianapolis the 24th day of October, A. D. 1831."
Endorsed upon Jndge Banker's commis- sion was his oath of office, taken on December 8. 1831, before Israel II. Rush, a justice of the peace. A like record is made of the commission and oath of office of Chapel W. Brown, the other associate judge. Judge Brown's oath of office, however, was taken before Levi F. Arnold, justice of the peace. on January 5, 1832, the day on which the court was held. It thus appears that Judge Brown waited from his election, in August, 1830, until January, 1832, before qualifying. As there is no further record of his services, it is probable that his only official action was that taken as ex officio probate judge on Jan- uary 5, 1832.ª
The only orders made by the court at this first session were to confirm the appointments, of executor and administrator. made by the clerk prior to the session ; and also to adopt a seal for the probate court. The last order reads as follows :
"The court now here adopt the following seal, to-wit: Marked with letters thereon, St. Joseph County, Indiana, with a spread eagle thereon, an impression whereof is made on the margin of this page; which this court will use for the purpose of sealing their or- ders, decrees and other proceedings thereof."
The order of adjournment of this first one- day term of court then followed: "And no further business appearing before the court it adjourned until conrt in course.
"C. W. Brown. "John Banker.
"Signed Jany. 5, 1832."
Sec. 2 .- FURTHER SESSIONS OF THE COURT. -The second term of the probate court was
a. See Note, Subd. 2, of this chapter, Sec. 4. See also Chap. 11, Subd. 1, Sec. 3.
not held for more than a year after the first. The record opens as follows :
"At the February term of the St. Joseph probate court appears James P. Antrim, at the hour of eleven o'clock on the second Mon- day of February, being the eleventh day of February, A. D. 1833, at the house of Calvin Lilly, in the town of South Bend, in a room provided by the county commissioners of the said county of St. Joseph, and produces a commission in the words and figures fol- lowing :
'Noah Noble, Governor of the State of Indiana, To all who shall see these presents, Greeting: Know ye, that, in the name and by the authority of the state of Indiana, I do hereby appoint and commission James P. Antrim probate judge for St. Joseph county, to serve as such until a successor is appointed and commissioned.
'In testimony whereof I have hereunto set my hand and caused to be affixed the seal of the state of Indiana at Indianapolis, this 10th day of December, A. D. 1832, the seventeenth year of the state, and of the independence of the United States the fifty-seventh.
'N. Noble.
'By the Governor, 'James Morrison, 'Secretary of State.'
"On the back of which commission is the following endorsement, to-wit :
'This day came James P. Antrim and af- firmed that he would support the constitution of the United States and the constitution of Indiana, and that he would to the best of his abilities and judgment faithfully dis- charge the office of probate judge, in and for St. Joseph county.
'January, the 18th day, A. D. 1833, af- firmed before me.
'Samuel Martin, 'Justice of the Peace.'
"And thereupon a probate court is held."
The only business transacted at this second term of the probate court was the appoint- ment of Samuel Garwood as administrator
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HISTORY OF ST. JOSEPHI COUNTY.
of the estate of Prieillia Garwood, and the or- dering of a citation to require John D. Lasly to file a sale bill and make settlement of the estate of Basile Prunie.
At the February term, 1834, Elisha Eg- bert appeared as judge of the probate court. Judge Egbert continued to preside until the November term, 1838. when John J. Deming succeeded to the office. In 1846 Edward F. Dibble became judge, and in 1848 Judge Eg- bert came upon the bench for the second time and served until the court was abolished under the constitution of 1851. The last en- try in the probate records reads: "And court adjourns sine die. Signed August 25th, 1852. Elisha Egbert, Probate Judge."
IV. THE COURT OF COMMON PLEAS.
See. 1 .- ORGANIZATION .- The seventh arti- cle of the constitution of 1851, as originally adopted, provided that "The judicial power of the state shall be vested in a supreme court, in eireuit courts, and in such inferior courts as the general assembly may establish." Under the power so granted the legislature, by an act approved May 14, 1852,ª provided for a court of common pleas, to consist of one judge, elected by the voters of the proper district, who should hold his office for four years."
This court was given the jurisdiction of the old probate court, with certain additional civil and criminal jurisdiction, inferior to the jurisdiction of the circuit court. It was the old probate court greatly improved, and with its powers and usefulness much enlarged.
By an act approved June 11, 1852.1 pro- vision was made for the election of a district attorney in every common pleas district. The duties of this officer in the court of common pleas were quite similar to those of the prose- euting attorney in the circuit court, except that his jurisdiction, like that of the common
a. 2 R. S., 1852; pp. 16-23; 2 Gavin and Hord, pp. 19-30. See also Acts, 1853, p. 38; Acts, 1857, p. 33; Acts, 1859, p. 91.
b. 2 R. S., 1852; pp. 385-386; 2 Gavin and Hord, pp. 429-431. And see Acts, 1861, sp., p. 39.
pleas judge, was in general limited to prose- cutions for misdemeanors. As in case of the old probate court, appeals might be taken from the court of common pleas either to the circuit court or to the supreme court. Ap- peals from justices of the peace might be taken to the court of common pleas or to the circuit court. There were four terms of court each year. At first these terms were fixed for the first Monday of January in each year, and for the first Monday of every third month thereafter. The length of each term was made to depend upon the population of the county, varying from one to three weeks. The clerk, however, in the absence of the judge, was, for many purposes, required to keep the court open "on every judicial day of the year."a
As the common pleas distriets were at first arranged, the counties of St. Joseph, Marshall and Starke formed one district.b But, by an act approved March 5, 1859, Laporte, Mar- shall, St. Joseph and Elkhart were formed into one common pleas district ; while in the act numbering the several common pleas dis- triets, approved March 11, 1861, the district composed of the counties of Laporte, Mar- shall, St. Joseph and Elkhart was named the seventeenth common pleas district.c
Sec. 2 .- THE COURT IN ST. JOSEPH COUNTY. -- The court of common pleas of St. Joseph county held its first session beginning on the first Monday of January, 1853. Although the court was in effect a continuation of the old probate court under the constitution of 1816, yet there were two sides to the court, law and probate. Separate records were kept, all civil and criminal business being transacted on the law side; while on the probate side were considered chiefly matters relating to the settlement of estates and guardianships.
a. 2 R. S., 1852, p. 16. b. Ib.
c. Acts, 1859, p. 92; 2 Gavin and Hord, p. 20; Acts, 1861, p. 53; 2 Gavin and Hord, pp. 653, 654. And see Acts, 1859, p. 84; 1 Gavin and Hord, pp. 277-281; Acts, 1869, p. 55; Davis' Sup. 1, 206.
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HISTORY OF ST. JOSEPHI COUNTY.
The first entry on the probate side reads as follows :
"Be it remembered, that at a term of the court of common pleas of St. Joseph county and state of Indiana, established according to law, begun and held at the court house in the town of South Bend in the county of St. Joseph. in the state of Indiana, on Mon- day, the third day of January, in the year of our Lord one thousand eight hundred and fifty-three, and before the Hon. Elisha Eg- bert, judge of the distriet composed of the counties of St. Joseph, Marshall and Starke and ex officio judge of the said court of com- mon pleas of St. Joseph county; and also present Samuel M. Chord, elerk of the court of common pleas of St. Joseph county; and also present Benjamin F. Miller, sheriff of said county. And at the hour of one o'clock P. M., on said day,' said eourt was opened in due form of law. Thereupon it was ordered by the court that the commissions of said judge, elerk and sheriff of said court be en- tered of record on the order book of said conrt."
This term lasted for three days and but little business was done.
In vaeation of court, on January 13, 1853. the judge and elerk, as required by the aet of May 14, 1852, organizing the court, "pro- eeeded agreeable to law to devise and adopt a seal to be used for said court, and it is de- seribed as follows: Said seal is about one and three-quarters inch in diameter, with two cireles on the outer edge, between which are the following words in capitals, to-wit: Court of Common Pleas of St. Joseph County. In the inner circle or center of said seal is the following design, to-wit: A female with a spear and a pair of scales, with the word Indiana immediately over her head."
An impression of the seal of the probate court is made upon the margin of the record.
There were only three judges of the St. Joseph court of common pleas, Elisha Egbert, who held the office until his death, in 1870: Edward J. Wood, who held until the Jan-
ary term, 1873, and Daniel Noyes, who was eleeted in 1872 and held the office until the court was abolished by the aet of March 6, 1873.
The district attorneys during the existence of the common pleas court of St. Joseph county were: In 1853, Horace Corbin; in 1854, James L. Foster, and Edward F. Dib- ble; in 1855, Joseph Henderson; in 1857, Andrew Anderson, JJr .; in 1858, Reuben L. Farnsworth; in 1859, Amasa Johnson; in 1861, James Davis; in 1861-2, Charles P. Jacobs; in 1863, William Andrew; in 1869, Joseph D. Arnold; in 1872, William B. Hess, and in 1873, George Ford.
V. A CELEBRATED CASE.
See. 1 .- SLAVERY, AS KNOWN IN INDIANA. -Very many important cases affeeting the rights of the people in their persons and prop- erty were passed upon from time to time by the three courts of St. Joseph county. To some of them reference has been made in the preceding pages. No case, however, has at any time been tried in our eourts which ronsed the people to a higher piteh of inter- est at the time, or was productive of more lasting results upon the community, not only of this county, but of all northern Indiana, than the fugitive slave case that came before Judge Egbert in the old probate court in 1849. The conflict in relation to slavery was growing warmer year by year over the whole country, and nowhere more so, perhaps, than in this state. Indiana, as we have seen, had originally been slave territory. The ordinance of 1787 for the government of the northwest had deelared that "There shall be neither slavery nor involuntary servitude in said ter- ritory," and this prohibition was repeated in both our constitutions. But though prohib- ited by law, slavery did exist in faet. Even as late as 1840, as we have seen, the existence of slaves in Indiana is shown in the United States census. From the first settlement the question was a burning one in our common- wealth, and this fire was destined to be
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HISTORY OF ST. JOSEPH COUNTY.
quenched only by the blood of the people in the great civil war.
But to the people of St. Joseph county in the year 1849 the existence of slavery seemed a thing afar off. The great body of our citi- zens knew of the institution only as some- thing. as it were, in a distant land, something of which they had read or heard people talk. They had not as yet come in contact with it; it was a thing quite removed from their daily life. Railroad communication, which now brings the uttermost parts of the land so close to one another, was then unknown. Kentucky was not nearer to us than Califor- nia or Oregon is now. Neither was the con- dition of slavery aired among the people by any national uplifting of the subject that set the real nature of the institution before their eyes, or called upon them to take ac- tion in regard to it. The compromise meas- ures of Henry Clay had not yet been passed, nor had the fugitive slave law been enacted. The slavery dispute was as yet smoldering, and had not burst into flame. Such was the condition of the publie mind of the people of St. Joseph county upon the subject of slavery when a most remarkable objeet lesson was brought before them. The slave and his master were found pleading the great issue in our simple probate court.ª
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