USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 40
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William A. Cullen-March 12. 1867, appointed.
William A. Cullen-October 30, 1867. to serve four years from dite William A. Moore-October 28, 1870, to serve four years from Deto- ber 30, 1871.
William A. Moore-February 18, 1871, to serve until successor is elected.
William A. Moore-October 28, 1872. to serve four years from d te
23. Tippecanoe. Warren (Tippecanoe was taken from the Fifteenth dis- trict and Warren from the Thirteenth, March 11, 14i7) : James Park-March 25. 1867, appointed.
John M. LaRue-October 19. 1867, to serve four years from date
John M. LaRue-October 24, 1870, to serve four years from Detober 19, 1871.
24. Boone, Clinton (Boone was taken out of the Twelfth district .nd Clinton out of the Fourteenth. March 11, 1567) :
Thomas J. Cason-March 14. 1867, appointed.
Thomas J. Cason-October 30, 1867. to serve four years from d. te Truman H. Palmer-October 24, 1870. to serve four years from October 30, 1871.
25. Cass, Miami, Pulaski (Cass and Miami, of the Twenty-first. and Pulaski, of the Sixteenth, were constituted the Twenty fifth by act of February 15. 1871) :
Daniel P. Baldwin-February 20. 1871, appointed.
John Mitchell-October 28. 1872, to serve four years from date.
COURTS OF CONCILIATION.
The Constitutional convention of 1850 spent more time discussing the judiciary than any other one topic. The mem- bers of the convention were agreed that the old system was
346
COURTS AND LAWYERS OF INDIANA
very unsatisfactory, but they could not agree on the way it should be revised. The provision for such a court as a Court of Conciliation shows that the convention was strug- gling to provide a judicial body to handle such cases as might not come under the purview of the Circuit or Common Pleas courts. The basis for the establishment of a Court of Con- ciliation is found in section 19 of Article VII and reads as follows .:
"Tribunals of conciliation may be established, with such powers and duties as shall be prescribed by law ; or the powers and duties of the same may be conferred upon other courts of justice; but such tribunals or other courts, when sitting as such, shall have no power to render judgment to be obliga- tory on the parties unless they voluntarily submit their mat- ters of difference and agree to abide the judgment of such tribunal or court."
Historical precedent for such courts may be found in Sweden and Norway, where the courts made their appearance in the eighteenth century. Such courts were established in Denmark by Christian VII under a decree dated December 7. 1792. They made their first appearance in America on the island of Santa Cruz in the West Indies, an island which belonged to Denmark. Shortly after their establishment on this island in the latter part of the eighteenth century they became known in the United States and some of the states had recognized them by statutory provisions before Indiana adopted them in 1851.
Pursuant to the provision in the Constitution of 1851 the Legislature passed the act of June 11, 1852, creating Courts of Conciliation and placing them in charge of the judges of the Common Pleas courts. It was the evident intention of the Legislature in establishing this court to provide a tribunal which should be given exclusive jurisdiction of all causes involving slander, libel, malicious prosecution and false impris- onment. The statute also provided that the court should have jurisdiction over certain kinds of claims for indebtedness, but in all such cases the parties to the action had to voluntarily appear before the judge and leave the adjudication of the cause to the judge without the intervention of a jury. It must
347
MINOR COURTS-1852-1916
be understood that no jury was provided for in Courts of Con- ciliation. .
The title given this court sufficiently indicates its general nature. It was essentially a tribunal where efforts were made to settle differences without the formality of a trial and with- out any of the expense which attended litigation in the Circuit courts. For instance, if a husband and wife came to the con- clusion that they wanted a divorce they appeared before the Judge of this court and made a statement of their grievances. The Judge then informed them of the law in the case and endeavored to help them reconcile their differences. In case he was successful he made an entry on the docket stating the nature of their respective complaints, their agreement to effect a reconciliation and required both parties to sign the statement. The value of this agreement lay in the fact that both parties were ever afterwards debarred from bringing a similar action in court.
It must be understood that this court was advisory in nature and the Judge officiated as an umpire or referee between parties having grievances. Practically all of the cases which came before this court were merely friendly efforts to adjudicate differences without having to resort to the Circuit court. Consequently, the value of the court depended in a large measure on the confidence which the peo- ple who appeared before the court had in its Judge. but, as a rule, the court was not held in high favor by the public. The method of recovering damages in slander suits was especially unsatisfactory and, since such cases constituted a majority of the actions, the Legislature was importuned to abolish the court. This was done with the act of November 30. 1865. and it appears from the wording of the act that no cases were then pending in any of the Courts of Conciliation of the state. Since its jurisdiction had been taken out of that of the Circuit court, the latter court again assumed cognizance of all causes which had been handled by the Court of Conciliation.
CRIMINAL COURTS.
The establishment of Criminal courts dates back to the act of December 20, 1865, which is an amendment to the act
348
COURTS AND LAWYERS OF INDIANA
of June 1, 1852, establishing the Circuit courts. The juris- diction of the Circuit court was divided by Section 2 of the act of 1865 into three parts, one to be called the Circuit court, one the Civil court and one the
Criminal court, according to the name of the county. The latter, or Criminal, court was given "original exclusive jurisdiction of all felonies and all misdemeanors, except as provided by law for justices of the peace and shall have such appellate jurisdiction in all criminal actions, as is or may be provided by law for the Circuit court; and the Criminal Cir- cuit court shall be organized and hold in all counties having ten thousand voters or more therein, which fact is to be ascertained by the governor, and certified by him to the clerks of such counties; and in all counties in which the Criminal Circuit court is organized, the Civil Circuit court shall have no criminal jurisdiction, but shall have only the jurisdiction of the Circuit court in civil cases."
The act of December 20, 1865, made no provision for Judges of the Criminal Circuit courts, but the act of December 21, 1865, establishing the Sixteenth judicial circuit (Marion county) provided for the establishment of a Criminal court in Marion county, whose Judge was to be appointed by the governor until the next general election should elect his suc- cessor.
The Legislature created the Criminal court because it was found that there were so many criminal cases in some of the more populous counties that it was impossible for the Circuit court to handle them. Marion county established the first Criminal court in 1865 and by 1869 there were seven other Criminal courts created. When provision was first made for Criminal courts they were designated as "Criminal Circuit courts" and they were so known generally until the act of April 12, 1881, changed their title to "Criminal courts." The act of March 1, 1869, made it possible for all counties with a voting population of only six thousand to have a Criminal court and the same year three additional Criminal circuits were created by the Legislature. This act remained on the statute books until it was repealed by the act of 1881. This latter act left only two Criminal courts in the state, Marion and Allen. The Vigo Criminal court was still in existence,
349
MINOR COURTS-1852-1916
but this act provided "That the said Criminal court in Vigo county, shall cease to exist after the third Monday in Novem- ber, 1882." However necessary the establishment of these courts may have been, it was soon felt that they were not satisfactory. Whether this was due to the limitations placed upon their jurisdiction, the character of the judges presiding over them, or the value placed upon them by the lawyers practicing before them, are questions of varying opinions. Undoubtedly the decline of criminal business within the first decade after the close of the Civil War was a large factor in bringing about their downfall. After the abolition of the Allen Criminal court in 1883, the Marion county Criminal court was the only one left in the state. This court has now had a continuous existence of half a century. A summary of the Criminal courts of the state, with the number of their circuit, the dates of their creation and abolishment, is set forth in the following table:
CRIMINAL CIRCUIT COURTS.
Circuit.
County.
Created.
Abolished.
16
Marion
December 21, 1865
19
Tippecanoe
March 9, 1867
March 9. 1575
20
Allen
March 9, 1867
February 27. 1853
21
Wayne
March 9, 1867
March 7. 15:
24
Vigo
March 1, 1869
April S. 1561
27
Floyd-Clark
April 23, 1869
February S. 1577
28
Vanderburgh
May 13. 1868
March 3. 1877
29
Jefferson
May 13. 1868
February 16. 1571
CRIMINAL COURT JUDGES.
Circuit.
Name.
Marion
Alford, Fremont
Marion
1
1577 1575
Bickle, William A.
Wayne
1407-1570
Borden. James W
Allen
1
1
1570 1571
Breckinridge, Joseph
Allen
Buskirk, Edward C.
Marion
Butler, John H.
Floyd and Clark 1 1
1570-1572
Butterfield, Charles A
Vanderburgh
1
1
1$67-1570
Chapman, George H.
Marion
1015. term expires 1919
Collins, James A
Marion
1
1869-1570
Crane, John G.
Vigo
I
1
1
1
1
1-71-1575
I
1
I
1
1 1906
Ayres, Albert F.
350
COURTS AND LAWYERS OF INDIANA
Cravens, John R.
Jefferson
1870-1872
Cox, Millard F.
Marion
1890-1894
Dunham, Cyrus L.
Floyd and Clark
1870-1874
Elliott, Byron K.
Marion
1870-1872
Fay, James A. Allen
1867
Fox, Henry C. Wayne
1878-1879
Hargrave, William P.
Vanderburgh
1872-1877
Heller, James E.
Marion
1878-1886
Hester, Melville C.
Floyd and Clark
1870
Holland, George
Wayne
J 1869-1873
Irwin, William
Marion
1887-1809
Long, Thomas B. Vigo
1 1870-1882
Markey. Joseph T. 1
Marion
1 1910-1915
McCray, John F. 1
Marion
1894-1898
Norton, Pierce
Marion
J 1882-1886
Peele, William A.
Wayne
1867-1869
Pritchard, James A Marion
1 1906-1910
Robinson, Andrew L.
Vanderburgh
1 1869-1870
Smith, Thomas L.
Floyd and Clark 1
1 1874-1877
Sullivan, Jeremiah
Jefferson
1869-1870
Test. Charles H.
Marion
1872-1874
Withers, Warren H.
Allen
1882-1884
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SUPERIOR COURTS.
It is difficult to understand at the present time why addi- tional Circuit courts were not established in 1871 to take care of the increasing amount of business instead of creating a new kind of a court, but the fact remains that the Legislature preferred to do so. On February 15, 1871, the Legislature passed an act creating a Superior court to consist of three judges "in any county in the state, wherein is situated an incorporated city containing, according to the returns of the census taken under and by the authority of the government of the United States in the year 1870, a population of not less than forty thousand inhabitants."
The jurisdiction of the newly created court was carved out of that of the Circuit court, and consisted of "original concurrent jurisdiction with the Circuit court, and court of Common Pleas in all civil causes except slander, and except such causes of which the court of Common Pleas now has original exclusive jurisdiction, and concurrent with the Circuit court and court of Common Pleas, in all cases of appeal from
1
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351
MINOR COURTS-1852-1916
justices of the peace, boards of county commissioners, and mayor's or city courts, and all other appellate jurisdiction now vested in or which may hereafter be vested by law in Cir- cuit courts or courts of Common Pleas; and said court shall also have concurrent jurisdiction in all action by or against executors or administrators." This jurisdiction has not been substantially changed. These courts fill the place evidently designed for the so-called "Civil Circuit courts" mentioned in the act of December 20, 1865.
The restriction of the Superior court to counties having cities with a population of forty thousand made it possible for only one county in the state-Marion-to have such a court. Subsequent legislation made it possible for counties of smaller population to have a Superior court, or for two counties to be united in a circuit for Superior court purposes. Since 1871 there have been twenty-four Superior courts estab- lished in the state, some under general acts and others under special acts. Some of these courts have been discontinued and others divided or united with other counties. The his- tory of each Superior court in the state is given in the various counties where they were established. The following table exhibits all the Superior courts now in existence :
County.
Established.
Allen
March 5, 1877
Elkhart
February 21. 1913
Grant and Delaware
1
March 1. 1900
Lake
1
1
1
March S. 1997
Laporte and Porter
February 27. 1505
Madison
February 15. 1571
Marion
February 21. 1913
St. Joseph
March 9, 1875
Tippecanoe
March 3, 1577
Vanderburgh
April S. 15SI
Vigo
A
1
1
1
1
I
1
1
1
1
1
I
I
Four counties have had Superior courts which are now abolished, namely: Cass, Wayne, Howard and Shelby. Cass and Wayne counties retained Superior courts only a short time; Howard county was united with Grant county for twelve years; Shelby and Marion counties were united for two years. Three other Superior circuits as originally established con-
1
March S. 1907
352
COURTS AND LAWYERS OF INDIANA
taining two or more counties, have either been separated or united with other counties in a new circuit. The following table shows not only the counties in which Superior courts have been abolished, but also those circuits which have been divided or united with other counties:
County.
Established.
Abolished.
Cass
March 3, 1877
April 2, 1SS1
Wayne
March 10, 1877 February 12, 1879
Grant and Howard
February 10, 1897 March 1, 1909
Elkhart and St. Joseph
January 31, 1907
February 21, 1913
Shelby and Marion
March 1, 1911
January 29, 1913
Laporte, Porter and Lake. March 9, 1895.
March 1, 1909
Since the creation of the Superior court in 1871 there have been seventy-five judges who have presided over their courts in those counties where they were established. The complete list of judges is given in the appended table, together with the dates of the service of all except those of Madison county. The commissions of the judges of that county were not found and the local authorities were unable to furnish the dates of the service of these judges.
Judge.
Court.
Tenure.
Allen, James M.
Vigo
1883-1891
Austill. H. Clarence.
Madison
Bartholomew, Pliny W
Shelby-Marion
1908-1914
Beal, Fred W.
Vigo
1915-1919
Becker, Lawrence.
Lake-Room 2
1911-1914
Blair, Solomon
Marion-Room 2
1871-1876
Brownlee, Hiram J.
Grant-Howard
1897-1902
Burns, David V. Marion-Room 4 1878-1879
Burns, Harry M.
Marion-Room 3.
September-October, 1876
Carter, Vinson
Marion-Room 3 1896-1912
Cass, John Laporte
1895-1897
Chapin, Augustus A.
Allen
I
1886-1890
Clifford, Vincent G.
Marion-Room 4 I
1
1
1 1914-1918
Collier, Joseph
Marion-Room 2
1
1 1910-1914
Cox, John E. Vigo
1907-1915
Crumpacker, Harry L.
Laporte
1 1915-
Dawson, C. M.
Allen
1890-1899
Diven, William S.
Madison
Dyer, Azro
Vanderburgh
1877-1890
Elliott. Byron K.
Marion-Room 3
1876-1880
Elliott, Patrick H.
Delaware-Grant-Howard 1906-1911
Ellis, W.
Madison
Everett, Frank B.
Tippecanoe
1888-1894
1
1
I
1
1
I
1
1
1
1
1 1
1
1
J
I
1
1
1
353
MINOR COURTS-1852-1916
Judge.
Court.
Tenure.
Ford, George
St. Joseph
1915-1919
Foster, John H. Vanderburgh
1-04-1905
Gilchrist, Alexander
Vanderburgh
1905-1910
Greenlee. Cassius M.
Madison
Greenwald. Charles E.
Lake-Room 3
1914-
Hanna, Charles T.
Shelby-Marion
I 1907-190%
Hardy, Walter T.
Lake-Room 2
I
1
1
1911-
Harman, James L.
Elkhart
1013 1919
Harness, B. F.
Grant-Howard
1!Mr2-1:MM;
Harper. James W.
Marion-Room 2 1
1-00-1891
Harvey, Lawson M. Marion-Room 2
Hay. Linn D. Marion-Room 2
1 1911-1915
Heaton, O. N. Allen
1:012-1911
Henry, David W. Vigo
1-95-1997
Hench. Samuel MI. Allen
Holman. John A.
Marion-Room 1
1577-1452
Hostetter. Fred M.
Vanderburgh
1 1910-191%
Howe. Daniel W.
Marion-Room 2
1-70-15.21
Kopelke, Johannes
Lake-Room 3
1
1
1 1011-1911
Larue. J. M. Tippecanoe
Leathers. James M.
Marion-Room 2
1-05-1910
Lowry, Robert Allen
1475
McMaster, James I
Marion-Room 1
1
1
I 1491 1910
1591 1.95
McNutt. Cyrus F. Vigo
Vanderburgh
1100 1994
Maier, Peter
Marion-Room 5
1:1 1 19+1 %
Moll. Theophilus J.
Cass
1567 1%-1
Jime-November, 155}
Ninde, Lindley M.
Allen
117: 1977
Newcombe, Horatio C.
Marion-Room 1
1472-1877
Perkins, Samuel E.
Marion-Room 1
1171-1-72
Rand. Frederick
Marion-Room 1
1
1
I
1
1
1
1
I
1
Rhoads. Baskin E. Vigo
1910 1911
Robison. Charles J.
Marion-Room 1
I
I
1
1
1912-19|6
Rochford. John J
Marion-Room "
1
1
Ryan, Henry C. Madison
Stimson. Samuel C. Vigo
Marion-Room
1011 191%
Thornton. William W.
Marion-Room I
1977 1915
Tuthill. Harry B. Laporte
1910 11+1%
Van Atta. Robert M. Grant
1:M7-191%
Van Fleet. Vernon W.
Elkhart-St. Joseph
Vesey. William J. Allen
1
1:411-1:02%
Vinton, Henry H.
Tippecanoe
1
1
1
1
Walker. Lewis C.
Marion-Room 3
1
1
1
6
1
1
1
1
I
1
1
1
1
I
1
(23)
1
I
1
1
1
1
1
I
1
I
1
1
I
1
1
1
I
I
1
1
1
1
1
1
1
1 1
1
1 1
1
1
1
1
1
1
I
1
Reiter. Virgil S Lake
1
1
1
I
6
Taylor, Napoleon B.
1
1
1
1
I
I
I
I
Nelson. John C.
1
I
1
1
1
1
1
354
COURTS AND LAWYERS OF INDIANA
Judge.
Court.
Tenure.
Wallace, W. Dewitt
Tippecanoe
1894-1901
Ward, T. B.
Tippecanoe
1875-1876
Weir, Clarence E.
Marion-Room 4
1908-1914
Williams. Myron B.
Marion-Room 4
1877-1878
Winter. James M.
Marion-Room 1
1893-1894
Worden, James L.
Allen
F
1
1
1
1882-18S4
Zollars, Allen
Allen
1877-1878
Yaple, Carl
Allen
1
1
1
1
I
I
F
1
I
1 1914-1918
1
1
1
1
1
1
1
1
I
1
I
1
1
1
1
1
1
1
COURT OF CLAIMS.
The present Court of Claims was not established until 1889, the legislative act of March 9 of that year establishing such a court. The basis for the court is found in section 24, article IV, of the Constitution of 1851, which states that "Provision may be made, by general law, for bringing suit against the state, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any per- son claiming damages against the state, shall ever be passed." It seems strange that so many years elapsed after the adop- tion of the present Constitution before advantage was taken of this provision in the Constitution. But such is the case.
The act of 1889 designated the Marion County Superior court as a Court of Claims, in which anyone having a claim against the state might bring suit. The act further provided that the attorney-general of the state should appear in its behalf in all such suits. However, the act did not endow the court with the power to enforce the payment of a judgment, but provided that in case judgment was rendered against the state the Legislature should pass an act appropriating a suffi- cient mount to offset the judgment. Nor is the state obligated to abide by the decision of the Court of Claims, even though it may recognize the justice of the claim against it, but may, if it so chooses, repudiate the entire amount of the judg- ment or any part of it.
In other words, the state reserves the right to pay any judgment which it may please, whether it be the entire amount of judgment awarded by the court, or such part of it as it may choose. In the latter case, that is, if the Legislature appro-
355
MINOR COURTS-1852-1916
priates only a part of the award, the plaintiff is forever debar- red from recovering the remainder of the judgment.
This would seem to effectually debar any ordinary creditor from bringing suit against the state. Fortunately, there is another avenue by which a citizen may obtain a judgment against his state. The Supreme court has ruled that anyone having a claim against the state may present it directly to the Legislature, but if that body chooses to allow only a part of the claim, the plaintiff must accept such an amount as the Legislature grants, and not seek additional damages from the Court of Claims.
The amendment of March 11, 1895, provided that there should be a fifteen-year limit to all claims against the state, except in the case of such vouchers and warrants as were issued and signed under authority of the law by any board of directors or control of the Northern Indiana State Prison. As the court was originally created, all claims were out- lawed at the expiration of fifteen years and the amendment of 1895 made an exception to this provision as just stated.
This court has not been used for the purpose for which it was designated by the Legislature. There are various reasons for this: the expense of trial, the delay in securing a judg- ment and the attendant inconvenience of the plaintiff if he happened to live outside of Marion county. As a matter of fact, the Legislature is the final arbiter of all claims against the state and is not only the judge as to whether the claim shall be paid, but also must make the necessary appropria- tion to satisfy any judgment which it accepts.
JUVENILE COURTS.
In response to demands from various social organizations, the General Assembly, March 10, 1903, established a Juve- nile court in every county in the state with a population of one hundred thousand inhabitants, which limitation restricted the establishment of such courts to Marion county. Its judge is to be elected by the voters and receives an annual salary of four thousand dollars. The Juvenile court has "jurisdic- tion in all cases relating to children, including juvenile delin- quents, truants, children petitioned for by board of children's
356
COURTS AND LAWYERS OF INDIANA
guardians, and in all other cases where the custody or legal punishment of children is to question, by said court shall not have probate jurisdiction." In all other counties the above powers were conferred on the Circuit court Judge when sit- ting as a "Juvenile court" judge. The executive officer of this court is called a "probation" officer and is appointed by the Circuit Judge. A procedure entirely different from that in the Circuit court is provided. A full discussion of the court will be found in Volume II in the chapter on Marion county.
PROBATE COURT.
Under the old Constitution there was a Probate court in each county in the state. Those were abolished in 1852, and from that date until 1873 all probate matters were cognizable by the Common Pleas courts; from 1873 until 1907 the juris- diction over probate matters was placed in the Circuit Court. By the act of March 9, 1907, a Probate court was established in all counties containing an incorporated city of not less than one hundred thousand population. The population provision, of course, restricted the establishment of such a court to Marion county. Its one Judge was to be elected by the voters ; its other officers were the same as those of the Circuit court. It was given "original exclusive jurisdiction in all matters pertaining to the administration and settlement of the estates of minors, insane persons, habitual drunkards, insolvents, estates of deceased persons, assignments, adoptions and sur- viving partnerhips ; and concurrent jurisdiction in proceedings for partition; applications for writs of habeas corpus; pro- ceedings concerning wills; suits for divorce and alimony ; and all suits by and against executors, administrators, guardians, assignees, and trustees." The salary of its judge is the same as that of the judge of the Circuit court. Appeals from it lay to the Supreme court, just as from the Circuit court. There is only one such court in the state and a further descrip- tion will be found in the chapter on Marion county in Volume II.
JUSTICES OF THE PEACE.
The Constitution of 1850 provides for justices of the peace by directing that a sufficient number be elected in each town-
1
357
MINOR COURTS-1852-1916
ship of the several counties. The Constitution also gives them a four-year-term, but leaves their powers and duties to be prescribed by the General Assembly. The General Assem- bly has fixed the number at present at not more than two for each township and one in addition for each incorporated town and one in addition for each incorporated city (Acts 1913, p. 834). In a county having a city of one hundred thou- sand there shall not be more than five. With these limitations the regulation of the number is turned over to the board of county commissioners.
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