USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 36
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The five members of the Supreme bench had a tacit agree- ment whereby each was to appoint a commissioner from his own district. Niblack, of the First, selected William M. Franklin; Howk, of the Second, selected George A. Bicknell; Elliott, of the Third, selected Horatio O. Newcomb; Worden, of the Fourth, selected John Morris; and Woods, of the Fifth, selected James I. Best. It happened that the Commission consisted of three Democrats and two Republicans, although there was nothing in the statute requiring such a political division.
As it was finally worked out, the commissioners were as- signed cases by the members of the Supreme court and after studying them were required to prepare an opinion. The
299
THE NEW SUPREME COURT-1852-1916
commission, like the Supreme court, met in the forenoon and, after arriving at a decision, submitted their finding to the higher tribunal. That body voted on the acceptance or re- jection of such opinions as were handed down by the commis- sioners, the latter body having no vote. In other words, the five members of this commission were little more than clerks of the Supreme court, in that their opinions were not final in any sense, but merely advisory. The Supreme court could accept or reject them as they saw fit.
Under such circumstances it is not a matter of surprise that the commission was not altogether satisfactory. Some of the members of the Supreme court in the selection of their member for the commission, had to stretch the words of the act providing for the commission which stated that the men chosen were to be of "high character for legal learning and personal worth." Petty politics rather than personal worth was responsible for the appearance of at least one of these five men on the commission. The commission was assigned cases of all kinds with the exception of those dealing with capital crimes or constitutional questions. The Legislature in 1883 continued the commission for two more years and provided that it should expire by limitation on April 14, 1885.
During the four years in which the commission was in operation, the Supreme court docket had been relieved of its congested condition and it was felt that there would be no need of creating a new court or establishing another commission. However, by 1889 the docket of the Supreme court had again become so clogged with cases that for a second time an appeal was made to the Legislature to provide some relief. At this juncture the Legislature prostituted itself by passing a petty political act. The political situation was in a turmoil such as had not been seen for many years. The election of 1888 had resulted in a peculiar state of affairs; the governor, all the state officers and three members of the Supreme court were Republicans, but both houses of the Legislature were Demo- cratic. It was a question of "tit for tat." The Supreme court was really in need of assistance and this is what hap- pened. The Legislature passed a bill creating a commission of five members, which commission in all respects, but one,
300
COURTS AND LAWYERS OF INDIANA
was identical with the one created in 1881. The one differ- ence lay in the fact that in the bill of 1889 the Legislature was to select the commissioners instead of leaving their selec- tion to the Supreme court.
To all intents the commission of 1889 was to constitute a new Supreme court, but without the power to hand down final decisions. The Legislature, in accordance with the provisions of the bill, appointed William E. Niblack, Robert J. Lowry, Jeptha D. New, John R. Coffroth and Mortimer Nye. As might be expected, the Supreme court resented the intrusion of the Legislature into the judicial field and promptly de- clared the act unconstitutional (State ex rel. Hovey v. Noble, 118 Ind. 350) on the ground that "the power of deciding, the duty of deciding and the duty of writing opinions, are specially imposed upon the court." The decision further said that "A duty imposed upon a department of government must be per- formed by the chosen officers of that department, and it can be neither delegated nor surrendered." Consequently, the newly created commission came to an abrupt end. But it was patent to everyone that something must be done to relieve the Supreme court of some of its work, and this was done by creating the Appellate court in 1891.
During the four years that the Supreme court commis- sioners were in existence, there were seven different men who were members of the commission. The following table gives their names and dates of service:
George A. Bicknell April 27, 1881-April 14, 1SS5.
John A. Morris. April 27, 1881-November 1, 1883.
William M. Franklin April 27, 1881-April 14, 1885.
Horatio C. Newcomb April 27, 1881-May 23, 1882.
James I. Best. April 27. 18S1-April 14, 1885.
Walpole G. Colerick Appointed November 9, 1883, to fill vacancy caused by the resignation of Judge Morris.
James B. Black Appointed May 29, 1882, to fill the vacancy caused by the death of Judge Newcomb.
William M. Franklin, commissioner of the First district, was born in Monroe county, February 13, 1820. From 1822 to 1840 he lived with his parents on a farm in Owen county, where he received a common school education. He spent three years in Asbury University. For three years he taught
301
THE NEW SUPREME COURT-1852-1916
and read law, locating at Spencer in 1844. In 1849 he was a member of the Legislature; then he became prosecutor of the Seventh circuit. From 1856 to 1870 he was Common Pleas judge, then he served a term as Circuit judge.
John A. Morris, commissioner from the Fourth district, was born in Ohio, December 6, 1816, the fourth child in a family of twelve, born to Jonathan Morris and Sarah Snyder. He was reared on a farm, educated in the common schools and seminaries and admitted to the bar in 1841. In Novem- ber, 1844, he moved to Auburn, where he practiced till 1856, when he went to Ft. Wayne. He had served as Common Pleas Judge of DeKalb and Steuben. From April 27, 1881. to September, 1883, he was a member of the Supreme court commission. At the latter date he resigned and resumed the practice.
Horatio Newcomb, commissioner from the Third district, was born in Tioga county, Pennsylvania, in 1821. In 1836 he came with his parents to Jennings county, Indiana. He was a saddler by trade, but gave that up and read law with a Mr. Bullock. He practiced in Jennings county till 1846, when he moved to Indianapolis. In 1849 he was elected mayor, in 1854 he was elected to the House and in 1860 to the Senate. From 1864 to 1868 he edited the Indianapolis Journal. In 1871 he became a Judge of the Superior court. He died in May, 1882.
James I. Best, commissioner from the Fifth district, was born August 23, 1835, in Augusta county, Virginia. In 1852 he came with his parents to Huntington county, Indiana, where he taught school and read law with D. O. Daily. In 1860 he settled at Waterloo, where he practiced during his life. From 1872 to 1876 he was on the Circuit bench. He was a Republican.
Walpole G. Colerick, who succeeded John A. Morris as commissioner from the Fourth district, was born in Ft. Wayne, August 1, 1845. He was a son of David H. and Eliza- beth (Walpole) Colerick. He was educated in the schools of Ft. Wayne and read law with his father. In 1878 he was elected to Congress and re-elected in 1880. In November, 1883, he was appointed by the Supreme court to the position
302
COURTS AND LAWYERS OF INDIANA
left vacant by John A. Morris. James B. Black, who repre- sented the Third district after the death of Horatio New- comb, May 29, 1882, was later a Judge of the Appellate court and his sketch will be found there. George A. Bicknell, who represented the Second, was a professor of law in Indiana University and his sketch may there be found.
JUDGES OF THE SUPREME COURT OF INDIANA.
Samuel Perkins January 3, 1853-January 3, 1865.
Andrew Davison January 3, 1853-January 3, 1865.
Addison L. Roache January 3, 1853: resigned May S, 1854, to become president of the Indiana & Illinois Central Rail- road.
William Z. Stuart January 3, 1853; resigned January 3, 1858, to be- come attorney for the Toledo & Wabash Railroad.
Alvin P. Hovey Appointed May S, 1854, to fill the vacancy caused by the resignation of Judge Roache, and served until December 10, 1855.
Samuel Barnes Gookins_December 10, 1855; resigned December 10, 1857, on account of ill health.
James M. Hanna
Appointed December 10, , 1857, to fill vacancy caused by resignation of Judge Gookins. Judge Hanna was elected at the next regular election and served until January 3, 1865. He died Janu- ary 15, 1871.
James L. Worden
Appointed January 16, 185S, to fill the vacancy caused by the resignation of Judge Stuart. Horace P. Biddle had been elected in the fall of 1857, but Governor Willard refused to issue him a commis- sion. Biddle brought mandamus proceedings against the governor, but the Supreme Court de- cided (January 15, 1858) in favor of the gov- ernor and on the following day he appointed James L. Worden. Judge Worden was elected at the next election and served until January 3, 1865; he later served on the Supreme bench from Janu- ary 3, 1871, until he resigned December 2, 1SS2, to become judge of the Superior court of Allen county.
James S. Frazer January 3, 1865-January 3, 1871. Jehu T. Elliott
January 3, 1865-January 3, 1871.
Charles A. Ray January 3. 1865-January 3, 1871.
Robert C. Gregory January 3, 1865-January 3, 1871.
John Pettit. January 3, 1871-January 1, 1877.
Alexander C. Downey. - January 3, 1871-January 1, 1877. Samuel H. Buskirk January 3, 1871-January 1, 1877.
303
THE NEW SUPREME COURT-1852-1916
Andrew L. Osborn Appointed by Governor Baker in December. 152. upon the organization of the Fifth Supreme court district. Judge Osborn served until January 4. 1875. The act of December 16, 1972. increased the Supreme Court to five members.
Horace P. Biddle January 4. 1875-January 3. 15$1.
Samuel Perkins January 1, 1877; died in office December 17. 1579.
William E. Niblack January 1. 1877-January 7. 1859.
George V. Howk.
January 1. 1877-January 7. 1859.
John T. Scott
Appointed December 29, 1879. to fill the vacabey caused by the death of Judge Perkins, Judge Scott served until January 5. 1SS1.
Byron K. Elliott
January 3. 1881-January 2. 1:93.
William A. Woods January 3. 1851; resigned May S. 1453. to become United States District judge.
William H. Coombs Appointed December 2. 1882. to fill the vacatey caused by the resignation of Judge Worden.
Allen Zollars January 1. 1883-January 7. 1569.
Edwin P. Hammond.
Appointed May 14, 1853. to fill the vacancy caused by the resignation of Judge Woods. Judge Ham- mond served until January 6. 15.55.
Joseph A. S. Mitchell January 6, 1855; died in office on December 12. 1890.
Silas D. Coffey January 7. 1889-January 7. 1895.
Walter Olds
January 7. 1889; resigned June 15. 1593. to en- gage in the practice of law at Chicago.
John G. Berkshire January 17, 1889; died in office February 19. 1-91.
Robert West McBride. -Appointed December 17. 1890, to fill the unexpired term of Judge Mitchell and served until January 2. 1893. McBride had been defeated by Mitchell in the November, 1890. election.
John D. Miller Appointed February 25. 191. to till the unexpired term of Judge Berkshire. and served until Janu- ary 2, 1893.
Leonard J. Hackney January 2. 1893-January 2. 1899.
James McCabe January 2. 1893-January 2. 1899.
Timothy E. Howard January 2, 1893-January 2. 1899.
Joseph S. Dailey
Appointed July 25. 1593. to till the unexpired term
of Judge Olds, and served until January 7. 1-95
James H. Jordan January 7, 1895; died in office April 10. 1912.
Leander L. Monks January 7. 1895-January 7. 1913.
Alexander Dowling January 2. 1899-January 2. 1905.
Jobn V. Hadley January 2, 1899-January 2. 1911.
Francis E. Baker January 2. 1899; resigned January 25, 1902, to be- come United States Circuit Judge.
John H. Gillett Appointed January 25. 1902. to fill the unexpired term of Judge Baker. Judge Gillett was later elected and served until January 4. 1909.
Oscar H. Montgomery __ January 2. 1005; January 2, 1911.
304
COURTS AND LAWYERS OF INDIANA
Quincy A. Myers. January 4, 1909; January 4, 1915.
John W. Spencer Appointed April 15, 1912, to fill the vacancy caused by the death of Judge Jordan and elected in fall of 1912 for a full term of six years.
Douglas Morris January 2, 1911.
Charles E. Cox January 2, 1911.
R. K. Erwin
January 6, 1913.
Moses B. Lairy
January 4, 1915.
SUPREME COURT REPORTERS.
The office of Supreme court reporter was not recognized during the period of the old Constitution (1816-1852), either by the Constitution itself or by statute. However, Isaac Blackford, one of the Supreme judges, took it upon himself to report the most important decisions of the court and the eight volumes of his decisions, covering the period from 1817 to 1848, are cited as "Blackf". Blackford issued all of these volumes on his own responsibility without official authoriza- tion, and it was charged by his political opponents in 1852, when he was a candidate to succeed himself, that he had made a comfortable fortune out of the sale of these reports. For some reason Blackford discontinued his reports with the edi- tion of 1848, although he remained on the bench until Janu- ary 3, 1853.
Thomas L. Smith was on the bench with Blackford from 1847 to 1853, and it appears that both Blackford and Smith prepared a volume covering the decisions of 1848 without either disclosing the knowledge to the other. Before Black- ford had his volume ready Smith issued his, much to the sur- prise, if not to the displeasure, of Blackford. As a result, Blackford was piqued and to such a degree that he never attempted to issue another volume during his remaining five years on the bench. Judge Smith issued only one volume of decisions, which covered the years 1848 and 1849.
The Constitution of 1852 expressly provided that "no judge shall be allowed to report the decisions" (Art. VII, Sec. 6). This provision was directed at Judge Blackford. The Legislature subsequently provided for a reporter of the Su- preme court, to be elected by the voters of the state. The office was first placed on a salary of $800 and has been raised from time to time, until the act of February 9, 1903, fixed
Gordon Jannes
305
THE NEW SUPREME COURT-1852-1916
the salary at $5,000. The first reporter elected under this statute was Horace E. Carter, who took the office in the fall of 1852 and at once began to prepare for publication all of the decisions which had been handed down since Blackford issued his last volume in 1848. Before Carter had the work completed beyond 1851, he died and it was left to his succes- sor, Albert G. Porter, to report the decisions from 1851 to 1857.
There have been fifteen reporters since 1852 and all of them have been well qualified for the office. In the list may be seen one President of the United States, one governor of Indiana, three United States Senators, one Appellate Judge and practically all of the rest have held other responsible official positions. There is only one notable incident in the history of the office since it has been established and that is concerned with Benjamin Harrison. He was elected repor- ter in the fall of 1860 for the regular term of four years, but, before the expiration of his term he was commissioned (Aug- ust 7, 1863) colonel of an Indiana regiment. He did not re- sign his office as reporter, but left a deputy in charge, while he himself went to the front. In the fall of 1863 the Demo- crats, going on the theory that Harrison's acceptance of a military commission created a vacancy in the office of Su- preme court reporter, elected Michael C. Kerr to the office. Kerr was compelled to bring suit to establish his claim to the office and the court held that Harrison's acceptance of the commission of colonel automatically left the office open. Har- rison defended his right to retain the office on the ground that the act passed by the Legislature in 1861, which author- ized all township and county officials to retain their offices, in case they enlisted for military service, applied to state officers as well. The Supreme court of the state, however. decided that this act was unconstitutional and Harrison was com- pelled to surrender the office to Kerr. In the fall of 1864 Harrison was again elected and served a full term of four years.
The following table exhibits the reporters of the Supreme court, the number of volumes each reported, how they are cited and the years covered by each reporter :
(20)
306
COURTS AND LAWYERS OF INDIANA
REPORTERS OF THE SUPREME AND APPELLATE COURTS.
Isaac Blackford. Sept. 17. 1817-1847
Augustus N. Martin 1877-81
Horace E. Carter 1852-53
Francis M. Dice.
1SS1-85
Albert G. Porter 1853-56
John L. Griffiths.
1889-93
Gordon Tanner 1857-61
Sidney R. Moon
1893-97
Benjamin Harrison 1861-63
Charles F. Remy
1897-1905
Michael C. Kerr
1863-64
George W. Self.
1905-13
Benjamin Harrison 1864-69
Philip Zoercher
1913
James B. Black
1869-77
SUPREME COURT REPORTS.
Reporters
Vols.
How Cited
Period Covered
Blackford, Isaac
S Blackf
1817-48
Smith, T. L.
1 Smith (Ind.)
1848-49
Carter, Horace E
(1-2 Ind.)
1848-51
Porter, Albert G.
5
(3-7 Ind.)
1851-56
Tanner, Gordon I 1
(S-14 Ind.)
1856-60
Harrison Benjamin
3
(15-17 Ind.)
1860-61
Kerr. Michael C.
5
(18-22) Ind.
1861-64
Harrison, Benjamin
(23-29)
Ind.
1864-68
Black. James B.
24
(30-53)
Ind.
1868-77
Martin, A. N
17
(54-70) Ind.
1877-80
Dice, F. M.
29
(71-99)
Ind.
1880-85
Kern. John W
17
(100-116) Ind.
1885-89
Griffith, John L.
16
(117-132)
Ind.
1889-93
Moon, Sidney R. 1
11
(133-144)
Ind.
1893-96
Remy, Charles F.
18
(145-162)
Ind.
1 1896-1905
Self. George W
14
(113-176)
f Ind. 1905-13
Zoercher, Philip
7 (177-183)
Ind.
1913
CLERKS OF THE SUPREME AND APPELLATE COURTS.
Ebenezer McDonald 1817-20
Jonathan W. Gordon 1SS1-82
Henry P. Coburn
1820-52
Simon P. Sheerin
1882-86
William B. Beach
1852-60
William T. Noble. 1SS6-90
John P. Jones.
1860-64
Andrew M. Sweeney 1890-94
Lazarus Noble
1864-68
Alexander Hess 1894-98
Theodore W. McCoy.
1868-72
Robert A. Brown
189S-1907
Charles Scholl
1872-76
E. V. Fitzpatrick
1907-11
Gabriel Schmuck
1876-80
J. Fred France
1911
Daniel Royse
1SS0-81
DIGESTS, CITATIONS AND TABLES OF CASES OF SUPREME COURT.
Author
Vols.
Reports Digested
Period Covered
Conover, J. F.
1
1 Blackf.
1817-26
Gilman, C.
1 1 to 4 Blackf.
1817-38
Perkins, S. E.
1 1 Blackf. to 7 Ind.
1817-56
1
1
1
I
I
1
1
I
I
E
1
1
1
1
1
I
1
1
1
1 1
1
1
I
I
I
1 I
1
1
1
1
1
1
1
I
1
307
THE NEW SUPREME COURT-1852-1916
Author Vols. Reports Digested Period Covered
Davis. E. A.
1
1 Blackf. to 16 Ind.
1517-61
Davis. E. A. 2d ed.
1 Blackf. to 16 Ind. 1$17-61
Davis. E. A. new ed.
1 Blackf. to 46 Ind. 1×17-74
Abbott. B. V.
1 Blackf: to 35 Ind.
1-17-71
Ripley, W. H. ·)
1 Blackf. to 73 Ind.
1-17-51
Black, J. B. 1 73 to 114 Ind.
1441 SS
Burns, H .. Index
1 Blackf. to 70 Ind.
1×17-SI
Burns. H .. New Index_ 2 1 Blackf. to 100 Ind. 1-17-65
Burns, H., Index-
Digest 1 1 Blackf. to 126 Ind. 1$17-91
Woollen, W. W., Di-
(73 to 140 Ind. )
gest
(1 to 12 Ind. App.) 1SS1-96
Thompson, J. W., Ta-
ble of Cases Cited, etc. O 1 Blackf. to 118 Ind. 1$17-89
Thompson, J. W.,
(1 B. to 135 Ind.)
(New Citations) 1 (1 to 7 Ind. App.)
1$15-95
Wollen. W. W., Top- (1 B. to 129 Ind.)
ical Annotations 1 (1 to 3 Ind. App.)
1×18-92
King & Leonard's Ci- (1 B. to 136 Ind.)
tations (1 to S Ind. App.) Dublin, Tex. 1895
Thompson, J. W., Sup-
plement to the 1895
(156-166 Sup. Court)
edition of King & Leonard's Citations __ 1 (25-38 App. Court)
The Indiana Digest
of Sup. & App. Cts.
compiled by West
(Sup. Ct. 1817-1910)
Pub. Co. 12 (App. Ct. 1891-1910) 1-17-1010
Burns. Harrison. Di-
gest of Sup. & App. Cts.
3
1-17-1905
Remy, Charles F., Di-
gest of Indiana De- (Sup. 140-157)
1$05-1002
cisions 1 (App. 12-27)
Ewbank. Louis B.,
Cumulative Indiana
Digest and
Notes
(Sup. Ct. 140-157)
to Statutes
(App. Ct. 12-27)
1006-1916
CHAPTER XI. MINOR COURTS-1852-1916.
CIRCUIT COURTS.
The Circuit court was provided for by the Constitution of 1851, but it was constituted, established, and its jurisdiction defined, by statute. The Constitution limits each Circuit court to one Judge, but the General Assembly is directed to define the circuit. The Constitution provides that the Judge shall preside in his circuit, and be elected by the voters for a term of six years, but the General Assembly fixes his salary and may confer upon him new powers, even though they be extra- judicial. The Constitution goes so far as to permit the Gen- eral Assembly to direct a Judge to hold court on a circuit other than his own. The Constitution permits a Circuit Judge to be removed from office for cause and the General Assembly, by act of March 8, 1897, has directed that this be done by the attorney-general, proceeding on information before the Su- preme court.
There are ninety-two of these courts, one for each county, The official name is "- Circuit court," filling the blank with the name of the county. The General Assembly fixes the time for holding court and the place, by consent and cus- tom, is the county seat.
The jurisdiction of this court, as laid down by the act of April 7, 1881, is as follows: "Said court shall have original exclusive jurisdiction in all cases at law and equity whatso- ever, and in criminal cases and actions for divorce, except where exclusive or concurrent jurisdiction is, or may be con- ferred by law upon justices of the peace. It shall also have exclusive jurisdiction of the settlement of decedents' estates and of guardianships; Provided, however, that in counties in which Criminal or Superior courts exist or may be organized, nothing in this section shall be construed to deprive such
309
MINOR COURTS-1852-1916
courts of the 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 of office."
This grant, it will be noticed, covers completely the juris- diction formerly granted to the Common Pleas courts, which were abolished by the act of March 6, 1873. All matters pend- ing in the latter courts were transferred to the Circuit courts at the time of their abolishment. The Circuit court formu- lates its own rules, limited only by the law of the state and the prescription of the Supreme court. No comment is neces- sary on the extent of this grant of jurisdiction, nor is it ne- cessary to point out that the great bulk of the litigation of the state is carried on in their courts. These Circuit courts are the general forum of the people for all trials of cases at law.
No discussion of the procedure in the Circuit courts will be entered into here further than to note the general limitations laid down by the act of 1881 and amended in 1911: "There shall be no distinction in pleading and practice between ac- tions at law and suits in equity ; and there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be de- nominated a civil action. All courts which are vested with jurisdiction both in law and equity, may, to the full extent of their respective jurisdictions, 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 my be enforced and protected in one action."
The reason for this sweeping statute is to be found in the history of the state during the period immediately preceding the adoption of the Constitution of 1851. It is to be taken in connection with the constitutional provision which permits "every person of good moral character beng a voter" to be admitted to the bar and to practice law in all courts of justice. It smacks of the time when twenty-two per cent of the grown persons of the state were illiterate and when Indiana stood below all the Northern states in point of the general literacy of the people.
310
COURTS AND LAWYERS OF INDIANA
Upon the adoption of the present Constitution the whole judicial system of the state was revised. Under the Constitu- tion of 1816 the Circuit Judges had been elected by the Legis- lature for a term of seven years; under the Constitution of 1851 provision was made for their election for a term of six years by the qualified voters of each circuit. The old Probate court was abolished in 1852 and its jurisdiction placed in a Common Pleas court. The Common Pleas court also handled certain kinds of cases which had previously been under the exclusive jurisdiction of the Circuit court. An extended dis- cussion of the work of the Common Pleas court will be given later, but it should be mentioned that it did not prove an altogether satisfactory tribunal of justice.
The Legislature, with the act of June 17, 1852, divided the state into ten judicial circuits, the number of counties in each circuit ranging from seven to thirteen. By 1873 when the whole state was recircuited, there were twenty-eight cir- cuits, eight of which were criminal circuits.
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