USA > Indiana > Howard County > History of Howard County, Indiana, Vol I > Part 29
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During his career at the bar Captain Garrigus had been identi- fied with many trials of public moment.
The sixth judge of Howard county hailed from Muncie. Jo- seph S. Buckles lived near that city upon a stock farm of six hun- dred and fifty acres. He was what might be called a farmer judge. Judge Buckles was a fair judge, a man of good natural sense and disposed to be impartial. He was heavy set and imposing in per- sonal appearance, lending dignity to the bench. His disposition was jovial and he loved company. . Had he devoted himself ex- clusively to the law he would have been a lawyer of exceptional capability. But he was largely interested in farming, and this in-
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terest induced him to neglect the close pursuit of the law, for which he was so well qualified by nature. The lawyers whispered that he eminently preferred to remain at home and look after his hogs and sheep than hold court. There were eight counties in his judicial circuit, comprising Delaware, Hancock, Hamilton, Tipton, Howard, Grant, Blackford and Madison. Judge Buckles was elected to the bench as a Democrat before the Civil war, but at and after the war he was a Republican. While on the bench the legislature decided that his circuit was too large and cut it down one-half, making a circuit of Madison, Hamilton, Tipton and Howard counties.
A CHANGE IN THE CIRCUIT.
This change in the circuit removed Judge Buckles from the Howard county bench, the new circuit of which it was a part being presided over by Judge Henry A. Brouse, appointed to fill the va- cancy in the bench until the election.
Judge Brouse never admired technicality enough to be skillful in the use and construction of it. As a lawyer he employed it from necessity. He had a natural antipathy and aversion to it. In tak- ing advantage of technicality he was much more skillful than in the formulation of it. Technicality he regarded as a means to an end- a mode of progress. He believed that courts were established to administer justice and that when technicality conspired to this end it ought scrupulously to be observed. That such was the purpose of its existence, and that when it operated to defeat justice or delay right, then it ought to be lightly regarded and overlooked, observed only sufficiently to avoid reversal in the supreme court.
A great lover of what is often spoken of as natural equity, Judge Brouse ever sought to abstract from the mass of confused and conflicting evidence in a case the real and substantial points upon
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which a trial hinged, and decided for the party with whom he con- ceived justice to be on the face of the issues. The honors of his position he bore with becoming modesty and impressed the bar with his evident desire to make a good judicial officer, fair and impartial. He was exceedingly liberal in the admission of evidence. Every syl- lable of evidence that could throw additional light upon the subject under consideration by the jury was placed before them for their re- flection and deliberation. No jury, if he could possibly avoid it, re- tired to return a verdict with an incomplete, defective and unsatis- factory understanding of the material points in controversy. He never suffered the jury to remain in the dark about a matter.
It was Brouse's idea that the court and bar were examples to the community. For this reason he insisted upon the strictest ob- servance of the rules by which he governed his court room. He tol- erated no offensive personality, no bulldozing, no improper conduct of any kind, and repelled rather than invited the familiarity of attor- neys and others, whom he kept at a respectful distance while court was in session. Civility, respect and courtesy were conditions prece- dent to the transaction of business in his court. Brouse repressed every manifestation of interest for either side by the spectators with an iron hand.
The Anderson bar had the reputation of employing dilatory tactics in their practice. Hearing of this, Brouse, who went there to hold court, was not all pleased. He resolved to inaugurate a new order of things. Court called Case No. 10185. A demurrer is filed to the complaint. The swiftness with which it was overruled made the attorney's head swim. Under penalty of the dismissal of the case the lawyer hustled around and files a motion to make the com- plaint more specific, but Brouse is of the opinion that its allegations are in no wise too general. A motion to file a bill of particulars is presented and overruled, and so on, case after case. Brouse dis-
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posed of legal matters in this summary manner and made up issues with frightful celerity until he accomplished his object.
JUDGE BROUSE'S SUCCESSOR.
When the time came to select a successor to Judge Brouse a convention was held in this city. The names of the ambitious pre- sented for its consideration were: Henry A. Brouse, of Howard county ; John Davis, of Madison county, and William Garver, of Hamilton county. The convention adopted the two-thirds rule. The respective counties from which the aspirants hailed stood by their men. Tipton divided her strength. The convention, unable to agree, adjourned to reassemble at Noblesville.
Some weeks later, at that place, the contest was renewed with the same result. On one ballot Brouse came within six votes of being successful. But it soon became evident to the delegates that no one of the men being voted upon could be selected unless some sort of a compromise was effected between the candidates. The del- egates, exasperated at the turn affairs had taken, put on their war paint and declared that something must be done, and that quickly, too. The candidates retired to canvass the situation. Brouse and Garver agreed to throw their influence to Davis, and in accordance with this compact John Davis was declared the nominee and was elected at the polls.
Judge John Davis, of Anderson, was elected. He was a man of good intellect and scholarly attainments. For a time he was in the employment of a railroad company, and was in corporation law a power, having a wide understanding of technicality in its manifold application. He was especially apt in perceiving the finer shades of distinction between elementary principles of law in respect to their relation to facts. The arts of his profession he exercised more as
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a scholar than a matter of fact practitioner. He was widely read in history, poetry and literature in general, and was something of a linguist. To become a great chancery lawyer was the acme of his ambition, and this desire occupied his thought by day and dreams by night, and was his most pleasurable topic of conversation. The dis- cussion of but one other theme delighted him as much, that of ana- lyzing the subjects of equity, the origin of that grand science, to pon- der over the jurisdiction of its courts, and reflect upon its remedies and its procedure. He had little love for criminal law.
Shortly after taking the bench his body became enfeebled by disease and his intellect clouded. Receiving a stroke of paralysis, he was rendered unable to perform the duties of his office. He re- fused, nevertheless, to resign. His office being a constitutional one he could not be removed. The legislature of 1871 passed an act to meet the emergency, providing for the choice of a judge pro tem. Governor Baker appointed Judge James O'Brien to this elevation.
A JUDGE OF POWER.
O'Brien was a judge of strength, force and power and satis- factory to the majority of the people in every respect. His under- standing of the law was broad and matured by research. His de- cisive mind, active memory of leading cases, high moral standard, steadfastness, unwavering firmness and familiarity with the details of practice enlisted public confidence and approbation.
Generally cool and collected, when aroused and under the in- fluence of a heated temper, he became a person most impulsive and interrogated a witness savagely. So thorough and deep-rooted was his contempt that when he thought he was being imposed upon his anger arose to a sublime height. The experience gained by a serv- ice of four years as county clerk of Hamilton county made him a
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proficient issue lawyer, and his love of investigation made him study his cases thoroughly. He was not, however, an advocate. His knowledge of men surpassed even his knowledge of books. The cross-examination of witnesses with him was a strong point. Posi- tive in his likes and dislikes, he was a man of strong opinions, friend- ships and enmities. His appetite for a joke was good and frequent- ly indulged.
JOHN W. KERN AND J. FRED VAILE.
Two members of the Howard county bar have attained to na- tional fame, J. Fred Vaile, now of Denver, Colorado, and a leading lawyer of the United States, and Hon. John W. Kern, Democratic nomineee for the office of Vice-President of the United States in 1908.
Signal industry characterized the work of Mr. Vaile. Every- thing with which he had to do was done as thoroughly and as promptly as could be expected or as was possible. Offenders, while he was prosecutor, were pursued with relentless persistence. They were not permitted to crawl through any loopholes. He had not the slightest sympathy with crime. Acting as state's attorney in a murder trial at Tipton, Vaile learned that a person living at a distance and in a locality not reached by railroad was in the posses- sion of information, the nature of which was so weighty as to make him an indispensable witness for the prosecution. Many attorneys, notwithstanding the importance of the situation, would have con- sulted personal ease and comfort and let the matter go by the board. But Vaile was a hustler and had his heart set upon winning a ver- dict, and was willing to go wherever duty demanded. During the night he drove in a vehicle several miles and had the witness in court upon its opening the next morning. Turning a deaf ear to his father's remonstrances, Vaile, when a youth, ran away to college, en-
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tering Oberlin College, Oberlin, Ohio. The expenses of his first year's schooling he paid by choring and cutting wood. He gradu- ated with honor and then taught school in Kentucky. Enthusias- tically he sought after everything which promised mental culture and advancement.
Vaile's faculty of observation was acute, critical and broad in its grasp of detail. His power of description was exceptional. Upon every subject he brought to bear his scholarly attainments. In argument to court or jury he was strictly methodical and strictly logical, and in effect the manner in which he let drive a disastrous array of facts at the opposite party's side of the case resembled the steady and continuous beating of a sledge hammer, increasing in force at each successive blow. With his mode of interrogation he elicited testimony in a clean, clear-cut and exhaustive manner. When Vaile concluded a severe cross-examination the whole of a witness' knowledge was laid bare for the jury's consideration, and all his weaknesses exposed. He secured the only death penalty ever ob- tained from a Howard county jury. In a case involving technical chemical knowledge his argument reflected the learning of a college professor.
NO PREVIOUS PREPARATION NECESSARY.
John W. Kern, without any previous preparation, can come into court, read over the pleadings and become so familiar with it that to all appearances he can try the merits of a cause as success- fully as if he had studied them for weeks. His fertility of expedi- ent is brought to light at almost every turn of the case. A weak place in an opponent's case he detects in a flash. A legal controversy would have to be dryer than the sands of the Sahara if he did not get some kind of fun out of it. When Kern began his career as a lawyer he was not exceedingly well versed in the practice. One of
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his first cases was a suit upon a promissory note. The case was to be tried at Tipton and thither Kern went to look after the interests of his clients. He was not expecting the defendant to make an ap- pearance, but contrary to Kern's expectations that personage was represented in court by Judge Green.
There is an expression among the attorneys and peculiarly in the courts like this : "Let a rule go against the defendant, or plain- tiff, as the case may be." To "take a rule" is to obtain an order of court that the defendant answer the plaintiff's complaint, or that the plaintiff reply to the defendant's answer. Of these things Kern was ignorant and when he learned that he must contend against Judge Green he became confused and greatly embarrassed. He was at his wits' end and floored. Judge Garver was on the bench and after waiting some time, said: "Well, what are you going to do, Mr. Kern? Will you take a rule?" Kern now saw a way out of his difficulty. He knew that the sympathetic judge would not mislead him. So with his eyes flashing triumph and with an air of crushing learnedness, Kern remarked: "Yes, your Honor, yes, I believe I will take a rule."
Kern is ingenious and knows where to strike and when to let a witness severely alone. He never allows an opportunity to raise a laugh slip by. He has-call it what you will-an innate genius, an inherent power or peculiar talent for the defense of those charged with crime.
KERN BEGINS PRACTICE.
After three years in the University of Michigan, at Ann Arbor, a tall, slender youth returned to Kokomo one day in 1869 and hung out his shingle. It read: "John W. Kern, Attorney at Law."
Because of his ability as a fluent and forceful speaker and his recognized shrewdness in dealing with the human personality, he at
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once had a thriving practice. Of course, most of it was in the jus- tice of the peace courts of Howard county, but the experience he gained there was invaluable. Of Kern as a lawyer at this time C. C. Shirley, formerly a Kokomo attorney, but now of Indianapolis, recently gave this picture :
"I first knew of him in the justice of the peace courts of Honey Creek township. As often as he was an attorney in a case I was present at the trial. I was charmed with his eloquence and drew my early inspirations from him at the bar. There are no courts which represent the human passions, humor and pathos more potently and effectually than the justice of peace courts. In them John W. Kern was perfectly at home. He ran the gamut of human emotions and sympathies. He had a big heart himself and understood human na- ture perfectly, and consequently was a perfect master of the human heart and played upon the heart strings at will."
Kern's success in the criminal practice lay not alone in his nat- ural eloquence. He was shrewd in legal expedient. In one trial, where his client was accused of stealing a pocketbook, he procured a money wallet as near like the one taken as possible. He pressed the prosecuting witness to a positive identification of the missing pocket- book, using, of course, the substituted article, with the result that the prosecution was put to rout and humiliation.
KERN'S TACTICS.
In another trial he all but ruined a witness. Without a scrap of evidence upon which to rely he suddenly yanked open a drawer of a desk of a table with which the circuit court room of Kokomo was provided. Looking the witness upon the stand full in the eye, he queried in fierce tones, as he produced a blank sheet of paper : "Did you not upon a certain occasion testify so and so in this mat-
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ter?" The witness wilted and admitted that his evidence had been different upon a previous occasion.
One of the early trials participated in by Mr. Kern was a litiga- tion over a red shawl-a suit in replevin-which originated in a jus- tice of the peace court at Russiaville, but which controversy, before it was concluded, cost the defeated party several hundred dollars.
Judge L. J. Kirkpatrick relates an amusing account of how Mr. Kern initiated him into the practice. A young, struggling and am- bitious attorney, he thought well of Mr. Kern's proffer that he act in his stead in a case which Mr. Kern had for trial at Miami. The judge went to the scene of the trial and found that Mr. Kern's client was stark mad, a fact he learned afterward that Mr. Kern knew. The crazy client had terrorized the town, but Judge Kirk- patrick was tactful enough to get the man to understand that he was his friend and looking to his interests, and kept the man quiet rea- sonably well, but made his escape from the town as soon as possible to take Kern to task, who laughed with the young lawyer over his exciting experience.
KERN AND RAWSON VAILE.
Early in his legal experience Mr. Kern encountered, at the Howard county bar, Rawson Vaile, an editor of the Indianapo- lis Journal before the Civil war and father of J. Fred Vaile, of Den- ver, Colorado, a schoolmate of Mr. Kern, and now one of the best- known lawyers of the West. The elder Mr. Vaile wore a silk tile. Kern was making an argument to the court, but his keenness for a joke got the better of him for a moment. He brought his law books down on Mr. Vaile's plug hat with a crash, mashing it completely. Attorney Vaile was livid with rage and the court threatened Mr. Kern with a fine for contempt. With all the wit of which he is the
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possessor, he begged the pardon of the injured lawyer and implored the mercy of the court, pleading inadvertence during the heat of an argument.
IS CHICKEN-HEARTED.
It is said of Mr. Kern here that he was always "chicken-heart- ed" in the matter of collecting fees. He was for several years a law partner of Judge B. F. Harness. They tried a case in which they saved for a woman who was unable to talk, for the lack of a palate, forty acres of land. When the case ended the client, with her little boy, who did the talking for her, entered the office and asked to know the fee expected. The lawyers talked the matter over and Kern suggested $75. When the sum demanded had been made known to the woman she proceeded to extract several green- backs from her stocking, counting out $75 from a roll afterward ascertained to contain $635. She remarked that she had brought this sum along to pay over as a partial payment, expecting to pay the rest in the fall when she sold her corn.
COOPER AND ROBINSON.
Upon coming to Kokomo to engage in the practice of the law John W. Cooper formed a partnership with James W. Robinson. Robinson was to receive three-fourths of the fees and Cooper one- fourth. Fees ranged from two to ten dollars in each case. Twenty- five dollars was considered a corpulant compensation. Their first case netted them five dollars, of which amount Mr. Cooper received one dollar and twenty-five cents. Finally Cooper started a law office of his own. He soon did a good collection business. Collec- tions were not then sent to banks as now, but went to swell the volume of an attorney's business. At this time-about 1861-avail- able case precedents were few. Indiana reports were not numerous.
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The business of lawyers mostly concerned probate and collec- tion matters. Rules of practice were not well defined. Injunction suits were rare and considered as wonderful. One of his first cases was John Langley vs. the Chicago and Great Eastern railroad for the killing of a colt. Cooper was greatly at a loss whether or not to allege in his complaint that the cars were run purposely, maliciously and willfully over, upon, and against the colt, whereby and where- from it, the said colt, died from the said injuries then and there in- flicted in the manner aforesaid. Although he proved that there was no fence where the colt was killed, instead of where it entered upon the track, he received judgment for more than his client had paid for the animal.
Mr. Cooper is slow in speech, deliberate in act, careful and sound in thought, generally correct in his estimate of character, judicious in statement, conversant with law, and thoroughly posted on the clerical branch of the practice.
COULDN'T OUTDO COLONEL RICHMOND.
Colonel N. P. Richmond had talent as a lawyer far above the ordinary and when he tried was a formidable and well-nigh invinc- ible antagonist. He had a fine legal judgment, but was an indiffer- ent student. He was a man of well-balanced powers, of good phy- sique, popular as presiding officer of conventions, and the possessor of a strong, clear, voice. When he was filled with zeal and exerted his powers to the uttermost his opponents were driven to their wits' end to outdo him, break the force of his appeals to the jury, and get the upper hand in order to gain the ascendancy.
Charles E. Hendry, sanguine in temperament, was easily de- pressed and discouraged, and when he perceived defeat certain would abandon his case into the hands of his associate counsel. He
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was a painstaking voluminous pleader and partial to the prolix com- mon law formulation. Facts he presented to the jury in the best order and with comprehensive system.
Arthur Bell died early in life. He was a lawyer who was thor- ough in investigation and one that got at the kernal of the case. For the practical things of life he entertained the highest regard and seemed to care for little else. Considering his health, which was not vigorous, he applied himself to his studies too closely. Criminal cases seldom engaged his attention as an attorney. Apparently he loved best to deal with cold facts and it seemed to be his desire to make the law apply to them as closely as paper fits to the wall.
Jacob H. Kroh was an attorney who entered upon the trial of a cause hammer and tonges style. He was a man of average speech. deep human sympathies and effective, but limited in the practice of the law by a distrust of his own powers. He had fine clerical abili- ties and in the later years of his life was an unqualified success in the capacity of pension attorney.
CHARACTERISTICS OF DAN BENNETT.
Illustrative of the characteristics of Dan H. Bennett as a lawyer at the Howard county bar, the story told of him by John W. Kern, is apt. it being as experience occurring during a trial before Justice Benjamin Moon, Mr. Kern being the opposing attorney.
"One Murphy was on trial for larceny in Moon's court. Ben- nett, who was then editor of the Howard County Republican, had been subpoenaed as a witness. Failing to respond, an attachment was issued and placed in the hands of Isaac Dick, constable, who, after visiting Bennett, and serving the writ, brought back a message from that gentleman to the justice, requesting him to go to h -. The dignity of the court was all torn up, but while the trial was
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yet in progress, Bennett appeared, testified, and was leaving the room, when Moon with a voice pregnant with authority said : "Hold on, Mr. Bennett, there is an attachment here against you for dis- obeying the process of this court." Bennett halted only long enough to tell the court in language both profane and vulgar what he might do with his attachment and again started to the door.
"Mr. constable! Seize that man!" shouted the Justice. "Take him. Take him." The constable taking in the mammoth propor- tions of the delinquent assured the court of his inability to do so. "Then call the posse comitatus"-by the Eternal call out the mili- tia," yelled the now thoroughly frantic squire, but Bennett had gone and further proceedings under the writ were never had.
"There was a surety of peace trial by jury in Moon's court, in which Bennett represented the defendant, a Mrs. VanHorn. In the course of his argument Bennett abused my client, the prosecuting witness, most shamefully. The jury disagreed and the case was set for retrial on the following day. Knowing of the strained relations between the court and Bennett I concluded to stir up the monkeys and have some fun.
"So, before going into the second trial, I had a private inter- view with Moon and pointed out to him the outrageous manner in which Bennett conducted himself in the argument, assuring him that it would not be tolerated in any other court, and succeeded in con- vincing him that Bennett carried on that way just to bring his court into disrepute.
"I got Moon thoroughly aroused and he assured me that if Bennett undertook to repeat his abusive argument of the day before he would stop him at all hazards and maintain the dignity of the court.
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HOW THIS THING WORKED.
"The old thing worked to a charm. In his argument Bennett fairly outdid himself in the way of villification. I waited until he was at the very summit, when I arose and asked the court to assert its authority and not only protect my client from this frightful tirade, which was all outside the evidence, but at the same time main- tain a dignity which belonged to a court of justice.
"The squire, with a great show of authority, informed Bennett that he had tolerated that style of argument as long as he intended to and he would no longer permit it. That if he proceeded it must be within the law and the evidence.
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