USA > Indiana > Kosciusko County > A standard history of Kosciusko County, Indiana : an authentic narrative of the past, with particular attention to the modern era in the commercial, industrial, educational, civic and social development. A chronicle of the people with family lineage and memoirs, Volume I > Part 13
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admission to the bar, located at South Bend. Not long afterward he became prosecuting attorney of the circuit, and in 1835, president judge. His service as judge of the Ninth Circuit commenced June 1, 1837, and concluded with his resignation, August 8, 1843.
FIRST ASSOCIATE JUDGES OF COUNTY
The associate judges for the same period were as follows:
Henry Ward, elected June 13, 1836, to serve seven years from that date.
James Comstock, elected on the same date for the seven years' term. Moved from the county in May, 1841.
James Brown, chosen at a special election, on August 14, 1841, to serve seven years from June 13, 1836.
Samuel D. Hall, elected August 10, 1842, to serve seven years from June 13, 1843.
James Brown, elected August 10, 1842, to serve seven years from from June 13, 1843.
After the incumbency of Samuel D. Hall and James Brown, as associate judges, until the coming of the new Circuit Court, under the constitution of 1851, James Humphreys and Isaac H. Jennings served in that capacity. They were both elected August 25, 1849.
EARLY CIRCUIT COURT IN ACTION
Again borrowing from Dr. Monks' "Courts and Lawyers of In- diana": "To get anything like a correct picture of the court, it is necessary to divest our minds of all pictures of the furniture and trappings of the court room of today. The country was young, awkward and violent. Knowledge and skill, though highly prized, were not widely distributed. The associates, or 'side' judges, had no pretension to legal knowledge. Many of the presiding judges had little more than a smattering of the law. The prosecutor was almost invariably a novice, while the foreman of the grand jury was very frequently a local preacher. Many of the practicing lawyers were of the class commonly called 'shysters.' They attained considerable success at the bar when the 'side' judges presided by prejudicing the judges against the really competent lawyers.
"The language of this court was strewn with Latin wrecks, many of them so disfigured as to have lost all resemblance to their original forms. If a lawyer was uncertain just how to lay his declaration, he worked it in all conceivable ways in the hope that at least one
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of his counts would he good. If he was uncertain just what to say, he said everything possible, in the hope that in one place or another he would get it said correctly.
YOUNG BEAU BRUMMEL 'SQUIRES
"The young lawyers, always called 'squires,' attracted most at- tention from the court house crowds. They sported what had been bee-gum hats; but stress of rain and frost had weakened the fiber or rotted the glue until many of them resembled, on a small scale, the leaning tower of Pisa. From beneath the wreck of a former beaver there protruded a long plait of hair, carefully wrapped in an eel skin, which hung to the belt, the whole appendage being a queue.
"The young 'squires courted the admiration and homage of the multitude. The lawyers had no offices. Neither did they prepare their cases; so that if not actually engaged at the bar, they were at leisure to walk around through the crowd and talk politics, for all were candidates for a seat in the Legislature.
"The people thought holding court one of the greatest perform- ances in the range of their experience. If not unavoidably detained, all those who had no business there flocked to court to hear the great lawyers 'plead"." *
WENT TO THE BOTTOM OF THE ,CASE
"Judge Charles Test has left a reminiscence of a scene that was not only typical, but very common. A man was on trial charged with assault and battery for pulling another man's nose. The case was before a jury. The room was crowded to the last man. The evidence was all in and the crowd had assembled to hear the ‘plead- ing.' Judge Test, then a young man, rose and said to the Court :
" 'If the Court please-'
"Before he could continue, Judge Winchell from the bench broke in with: 'Yes, we do please. Go to the bottom of the case, young man; the people have come in to hear the lawyers plead.' He then proceeded in a three hours' address to show how greatly his client had been provoked to pull the plaintiff's nose. As he closed and took his seat, the judge bawled out, 'Capital! I did not think it was in him.' "'
JURIES
"The laws and regulations concerning petit and grand juries have remained substantially the same through the century. Under the
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present constitution the practice is necessarily the same throughout the state. According to the act of March 3, 1913: 'In causes tried by jury, a jury fee of $4.50 shall be taxed as costs in favor of the county. Jurors, grand and petit, shall be paid $2.50 per day while in actual attendance, and five cents for each mile necessarily traveled.'
"Petit juries are drawn by two jury commissioners, who, accord- ing to statute, must be of opposite political faith. These commis- sioners receive $3 per day for the time actually occupied in filling the box. The larger number of indictments tried by the Circuit Court is presented by the grand jury. There is now no serious opposition to the grand jury, such as existed in 1850, when the con- stitutional convention threatened to abolish it.
APPEALS TO THE JURY
"From 1816 to 1835, the practice was featured by the appeal to the jury. A large part of it was in the Criminal Court. In this the attorney depended almost exclusively on his appeal to the jury. Men like General W. Johnston, James Noble, Governor Ray or Amos Lane developed considerable powers in this field of oratory. Per- haps no one of our day would care to hear one of these men speak four hours on a provoke case, but the folks of that day enjoyed it. We read of juries wrought up to frenzy, or melted to tears, by the eloquence of these early barristers.
SPECIAL PLEADING, EARLY NIGHTMARE
"While this species of forensic eloquence remained characteristic of the old Circuit courts, lawyers as early as 1830 began to give more attention to the pleading side of the practice. By 1840 many of the special pleaders had attained such skill in this line that, with an un- certain judge and an unskillful attorney to oppose, they could almost prevent a case coming to trial. The revision of 1843 shows distinctly the effect of this practice.
"On the other hand, a study of the debates in the constitutional convention shows that the public did not think highly of this form of practice. In the old days a case was set down for trial and the people could gather in with the assurance that the trial would come off on schedule time, but by 1850 it had become customary to delay cases at bar for a year or more."
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"Special pleading became a hobby of a few lawyers and a night- mare to the lawyers not read up on it. Chitty was the standard
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work on the subject, enforced by Saunders' Reports. On one occa- sion a demurrer to a pleading of this kind came up before the asso- ciate judges at Charlestown. Charles Dewey and Harbin H. Moore, two as able lawyers as could be found in Indiana, perhaps, argued it to the judges all day. As Moore closed his powerful argument, one of the judges roused up.
" 'Mr. Moore, do I understand that a demurrer means a dispute ?'
"With disgust, Moore answered, 'Yes, Your Honor.'
" 'Then,' said the judge, 'the opinion of the court is that the demurrer go.'
" 'Which way shall it go?' queried the attorney.
" 'Mr. Moore, I will let you know that you are not to ram your rascality down the jaws of justice in this court,' responded the judge."
FLICKERING TORCHLIGHT OF JUSTICE
"Much of the early litigation was over trivial affairs. It is not infrequent in the early court records that one finds a verdict for five or ten dollars with costs of $200 or $300. Corporations as well as corporation laws were little known. Slander and libel suits were frequent, most of them having their origin in political or religious difficulties. Many cases of ad quod damnum appear on the early records. The larger number of these were for mill sites-always called 'damsites.' The law authorized one to condemn private land for this purpose.
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"In concluding this chapter, one can hardly refrain from observ- ing that a study of the old court dockets is the best possible way to get an appreciation of the long and painful road by which society struggles on to higher forms and fuller life. It is a museum of misery, misfortune, and despair, illuminated by the flickering torch- light of justice."
PRESIDENT JUDGES OF THE NINTH CIRCUIT
Succeeding Samuel C. Sample as president judge of the Ninth Circuit were John B. Niles, who served by appointment from August to December, 1843, and who had previously been prosecuting attorney of the circuit, as well as one of the ablest lawyers of Northern In- diana ; E. M. Chamberlain, who served from December 1, 1843, until
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his resignation in August, 1852, and Robert R. Lowry, who was in office as the last of the president judges, from August to October, 1852, inclusive.
THE CIRCUIT COURTS OF TODAY
The Circuit Court of the present was created by the constitution of 1851, but it was established and its duties defined, with the increas- ing demands made upon it by the development of the county, by various statutory enactments. The respective creation and aboli- tion of the Probate and Common Pleas courts have also made it nec- essary to periodically decrease or increase the scope of its juris- diction.
The constitution provides that the judge shall preside in his cir- cuit and be elected for a term of six years, although it permits the General Assembly, in extraordinary cases, to direct a judge to hold court on a circuit other than his own. The Legislature also fixes the salary of the circuit judge and may confer upon him extra-judicial powers. The constitution permits a judge to be removed from office for cause, and the General Assembly directs that such impeachment be conducted by the attorney general of the state, proceeding on in- formation before the Supreme Court. Thus the groundwork of this court, as of other institutions, was laid by the constitution, and the General Assembly worked out the details to conform to changing circumstances.
The legislative act of April 7, 1881, recreated the Circuit Court of today, in the following words: "Such court shall have original exclusive jurisdiction in all cases at law and equity whatsoever, and in criminal cases and actions for divorce, except where exclusive or concurrent jurisdiction is, or may be conferred by law upon justices of the peace. It shall also have exclusive jurisdiction of the settle- ment of decedents' estates and of guardianships ;
"Provided, however, that in counties in which Criminal or Supe- rior courts exist or may be organized, nothing in this section shall be construed to deprive such courts of jurisdiction conferred upon them by law, and it shall have such appellate jurisdiction as may be conferred by law, and it shall have jurisdiction of all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or office."
It will be perceived that, by the enactment noted, the new Circuit Court inherited all the functions of the old Probate and Common Pleas courts. The only important amendment to the act of 1881,
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which defined the jurisdiction of the court, was passed thirty years afterward (1911) to the following effect: "There shall be no distinc- tion in pleading and practice between actions at law and suits in equity; and there shall be but one form of action for the enforce- ment or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. All courts which are vested both in law and equity may, to the full extent of their respective jurisdiction, administer legal and equitable remedies in favor of either party, in one and the same suit, so that the legal and equitable rights of the parties may be enforced and protected in one action."
The legislative act of June 17, 1852, divided the state into ten judicial circuits. Besides Kosciusko County, the Tenth comprised Adams, Wells, Whitley, Allen, Noble, DeKalb, LaGrange, Steuben and Elkhart. Since that date, there have been more than 180 changes in the judicial circuits of Indiana; or, putting the matter in another way: "There have been only five sessions of the Legislature since 1852 in which a new circuit has not been organized, or one or more old circuits reorganized. Politics has often played a prominent part in the establishment of these circuits, and it has been said that there have been times when some counties were not attached to any circuit for a short time."
SHIFTING OF THE COUNTY IN THE CIRCUITS
The acts of the General Assembly which have specially affected Kosciusko County have been these: Act of February 20, 1867, by which the county was transferred from the Tenth to the Fourteenth Circuit; March 6, 1873, by which the Common Pleas courts were abolished, and Kosciusko County transferred from the Fourteenth to the Thirty-third Circuit and the act of March 1, 1889, which made the county coextensive with the Fifty-fourth Judicial Circuit, as it is at present.
JUDGES OF THE TENTH CIRCUIT
While Kosciusko County was in the Tenth Circuit, the following served as judges of the court: Elza A. McMahaon, from October 12, 1852, until his resignation, August 15, 1855; James L. Worden, who was appointed on the latter date and resigned January 18, 1858; Reuben J. Dawson, who served by appointment from January to October, 1858; Edward R. Wilson, circuit judge from October 26,
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1858, to the same date in 1864, and Robert R. Lowry, from October 26, 1864, to February 20, 1867, when the county was transferred to the Fourteenth Circuit.
JAMES L. WORDEN
Hon. James L. Worden, who occupied the bench for nearly two years and a half, was one of the ablest lawyers and judges who ever served the cause of justice in Indiana. From the Circuit bench he was elevated to the State Supreme Court which he honored and graced for twenty-five years thereafter. Judge Worden was a res- ident of Fort Wayne for about thirty-five years, that being his home city at the time of his death. By birth he was a Massachusetts man and by education, a product of Ohio. He practiced in the Buckeye State for a number of years before (in 1844) he moved to Indiana. He located at Fort Wayne in 1849; was prosecutor of the Tenth judicial circuit in 1851-52, served as its judge in 1855-58, resigning in January of the latter year to accept the justiceship of the Indiana Supreme Court, to which he had been appointed by Governor Wil- lard. Judge Worden was retained in that position by successive elections of the democratic party until his retirement on December 1, 1882. His death occurred about eighteen months after his retire- ment.
JUDGES OF THE FOURTEENTH CIRCUIT
While Kosciusko County was in the Fourteenth Circuit, Hiram S. Tousley and James I. Best presided-Judge Tousley, from Feb- ruary 28, 1867, to October 30, 1872, and Judge Best from the latter date until the passage of the act of March 6, 1873, when the Common Pleas judges were legislated out of office and there was a general rearrangement of judicial circuits.
In 1881 the Legislature passed an act designed to relieve the con- gested docket of the State Supreme Court, creating for that purpose five special commissioners, with two years' terms, who were appointed by the justices of the Supreme Court. Judge William A. Woods selected James I. Best as the commissioner for his district (the fifth).
JUDGES ELISHA V. LONG AND WALTER OLDS
The following served Kosciusko County judicially, while it was included in the Thirty-third Circuit : Elisha V. Long, March 17, 1873,
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to October 22, 1885; Walter Olds, from the latter date until his res- ignation on December 31, 1888; Joseph W. Adair, from December 31, 1888, to March 1, 1889. The act of the latter date made Kos- ciusko Connty the sole county in the Fifty-fourth, where it has since remained.
Judge Long had either practiced law or been engaged in the newspaper business for fifteen years, when he ascended the bench. He was a native Hoosier of Wayne County, and his father, also Elisha, had been prominent in the development of the system of In- ternal Improvements during 1836-40-the period when not only Indiana, but neighboring states, were also agitated over the systema- tic promotion of canal and railroad schemes.
The son came to Kosciusko County, with other members of the family, when a boy. He taught school at Leesburg and in Elkhart County, received the benefit of a partial course at Fort Wayne Col- lege, studied law at South Bend, and in 1857 was admitted to the bar. In the following year he commenced practice at Warsaw in partnership with his brother Moses J. Long, which continued until 1862, when he formed a partnership with Edgar Haymond, which was dissolved three years afterward.
Mr. Long's practice became quite extensive, but from 1860 to 1865 he edited the Warsaw Union as well as engaged in his regular professional work. In the latter year he moved to Anderson, where he edited the Standard and also practiced law, but at the end of a twelve-months' period he returned to Warsaw. He continued busily and profitably engaged as a member of the bar until March, 1873, when Governor Hendrick commissioned him as the Common Pleas judge for the Thirty-third Circuit, to hold the office until the fall election. In the succeeding October he was elected for the six-years' term by a large majority, and in October, 1878, was re-elected for a second term. His record on the bench was a natural continuation of his previous professional record of ability and dependability.
Judge Olds resigned to become judge of the Indiana Supreme Conrt, remaining on that bench until June 15, 1893. He then re- signed to enter practice in Chicago, but in 1901 moved to Fort Wayne. In both cities he has become widely known as a railroad and a corporation lawyer.
FIFTY-FOURTH CIRCUIT JUDGES
Since Kosciusko has alone covered the Fifty-fourth Circuit, the following have occupied its bench: James S. Frazer, March 1, 1889-
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November 17, 1890; Edgar Haymond, November 17, 1890-November 17, 1896; Hiram S. Biggs, November 17, 1896-February 1, 1904; L. W. Royse, February 1, 1904-November 17, 1908; Francis Bowser, November 17, 1908 (term expires on November 17, 1920).
JUDGE JAMES S. FRAZER
Judge Frazer was a member of the bench and bar, and a public man, of remarkable ability, with varied as well as solid talents. He was a Pennsylvanian by birth, of Scotch parentage, and located in Wayne County, Indiana, in his youth. He was admitted to the bar before he had attained his majority and at once opened an office for practice in Warsaw. That was in 1845. Two years afterward he was elected to the lower house of the Legislature, serving in that body in 1847, 1848 and 1854. From 1865 to 1871 he served on the State Supreme bench, and in May of the latter year was appointed by President Grant as one of the three commissioners to adjust the claims between Great Britain and the United States arising out of the Civil war. In line with the duties of that position he was called to Washington, where he resided from 1873 to 1875.
In 1879 Judge Frazer was appointed a member of the Board of Commissioners selected to revise and codify the laws of the state. As stated, he served as Circuit judge of Kosciusko County for more than eighteen months in 1889-90. He died at his home in Warsaw, Feb- ruary 20, 1893.
Seven children were born to Judge Frazer and his wife (nee Caroline Defrees). The eldest, William D. Frazer, is the prominent lawyer and citizen of Warsaw, and the oldest of the six daughters, Miss Harriet D. Frazer, is widely known as a court reporter and a leader in all the higher activities of her sex.
Judge Edgar Haymond was also an old Warsaw attorney, having practiced at the county seat for over thirty years, when he was elected circuit judge (in November, 1890).
JUDGE LEMUEL W. ROYSE
Judge Lemuel W. Royse is a native of Kosciusko County, and was born January 19, 1848. His father, who was a son of the Granite State, spent many years in Ohio as a preacher and a doer of Metho- dism. The son received a smattering of book learning in the public schools of Warsaw, but practically all his education has been secured through his own systematic reading. He studied law under Judge
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James S. Frazer, was admitted to the Kosciusko County bar in Sep- tember, 1874, and in the following year began the practice of his profession.
Judge Royse is therefore one of the veterans of the bar, measured by length of active practice, and the nature of his public and judicial services have further stamped his personality on the county. In 1876 he was elected prosecuting attorney of the Fifty-fourth Circuit and served one term; was six years mayor of Warsaw, 1885-91, and was the congressman from the Thirteenth District for two terms covering 1895-99. As stated, he occupied the Circuit bench in 1904- 08. In every position he has proved his mental ability and his moral worth .- H. G. C.
JUDGE FRANCIS E. BOWSER
Francis E. Bowser, who succeeded Judge Royse to the Circuit bench, is of the younger generation of lawyers. He is also a native of the county; was admitted to the bar in 1885, and was associated with Andrew G. Wood for twenty-three years. Judge Bowser is serving his second term which expires November 17, 1920.
THE PROBATE COURT AND ITS JUDGES
The thirteen years which in Kosciusko County covered the period when probate matters were segregated from the jurisdiction of the Circuit Court were marked by much statutory patchwork, which, in the end, did not accomplish anything of consequence. Specifically, that period covered the time from August 16, 1838, when Kosciusko's first probate judge assumed office, until May 14, 1852, when the Legislature abolished the court and transferred its functions to the Common Pleas Court.
The pernicious practice of special legislation, which became com- mon about 1840, rapidly undermined the Probate Court. In the revision of 1843 the law organizing the court was somewhat simpli- fied. The concurrent jurisdiction of the Circuit and Probate courts were retained in all suits at law and equity, in all partitions of real estate, in assignment of dower and a few other minor cases. The court first taking cognizance of a case retained it. The right of appeal was given to either the Circuit or Supreme Court, the usual rules prevailing in such practice.
Fifteen laws of the General Assembly of 1845 dealt with the . same court; twenty-two amendments were enacted in 1846; nineteen
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in 1847; twenty-five in 1848; at least thirty-seven changes were made in the law of 1849; and in 1850, under the shadow of the Constitu- tional Convention, it was amended a time or two. Most of these statutes were merely personal and meddlesome.
"It is hardly necessary to observe that no institution could live on the chop-seas of such legislation," concludes Monks' history of the Courts and Lawyers of Indiana. "By 1850 scarcely any resemblance to a system of courts remained. Each in large measure was a special court for the county in which it was located.
"The Probate Court does not even seem to have given much satis- faction. The first report of the judicial committee to the Constitu- tional Convention failed to provide for the Probate Court. Its duties were turned over to the Circuit courts. This report made by John Pettit, an eminent lawyer of Lafayette, provoked a long discussion among the lawyers, in which may be read the history of the Probate courts during the twenty-one years of their existence." *
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"Enough has been given here to show that the leading lawyers of Indiana, in 1850, considered the old Probate Court a failure. It was not only a failure in itself, but a constant source of corruption to public opinion.
"Nothing is more dangerous or costly to a community than mis- information in regard to the law. This is what usually was obtained at the Probate Court. Legal advice at this court could be had with- out price, and this caused it to be in considerable favor with the common people. When the opinions of the probate judge were over- thrown in the upper courts, it was often attributed, not to the error of the opinion, but to the smartness or trickery of the lawyers. The whole misfortune can be traced to the attempt to be too economical in county government."
THE COUNTY'S PROBATE JUDGES
The probate judges of Kosciusko County, with the periods of their service, were as follows: William B. Blaine, August 16, 1838 (resigned) ; Jacob Baker, June 16, 1842 (vice William B. Blaine) ; Joseph Hall, August 10, 1842-July, 1843 (resigned) ; Clement B. Simonson, July 25, 1845 (special election), vice Joseph Hall; John Rogers, August 15, 1843 (resigned prior to August 7, 1850) ; William C. Graves, August 7, 1850 (vice John Rogers, resigned) ; Jacob Felk- ner, August 20, 1850.
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