USA > Indiana > Miami County > History of Miami County, Indiana : a narrative account of its historical progress, its people and its principal interests, Volume I > Part 34
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"Done in open session of this said court at Peru, in said county, this 13th day of September, A. D. 1853.
" JOHN UPFOLD PETTIT."
When Judge Pettit left the bench to enter Congress, Governor Wright appointed John Brownlee, of Grant county, which had in the meantime been added to the district, to the vacancy. Judge Brownlee held but one term of court in Miami county during his appointment, and that was in March, 1854, John M. Wallace, also of Grant county, being elected in the fall of that year to fill out the unexpired term of Judge Pettit. He was a man of fine address, affable manners, a fairly good lawyer and a conscientious, impartial jurist. He first presided at the Miami circuit court in March, 1855, at which time Isaiah M. Harlan was prosecuting attorney and Hiram Moore was sheriff. At the September term following John Wertz was sheriff and Alexander
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Blake had succeeded James B. Fulwiler as clerk. Judge Wallace con- tinued on the bench until 1860, his last term in Miami county having been held in October of that year, and during the greater part of that term Judge Brownlee presided by appointment. W. S. Benham was then prosecuting attorney ; Alexander Blake, clerk; and O. H. P. Macy, sheriff.
One of the most important criminal cases in the early history of the Miami circuit court came up for trial during the administration of Judge Wallace. That was the case of the State of Indiana vs. Abner Dillon, for murder, which was tried at the March term in 1857. The indictment charged Dillon with having killed his wife by beating her with a shovel. The testimony showed him to have been guilty of unus- ual cruelty to her on numerous occasions and the jury found a verdict of guilty of murder in the first degree. He was sentenced to the peni- tentiary for life, but appealed to the supreme court, where the action of the circuit court was sustained, the supreme court declaring that the jury had shown Dillon all the leniency to which he was entitled.
In the fall of 1860, Horace P. Biddle was elected judge of the Eleventh district, which was then composed of the counties of Car- roll, Cass, Miami, Grant, Wabash and Huntington. He assumed his duties upon the bench in April, 1861, and continued upon the bench until 1872, when he was succeeded by John U. Pettit, who served the full term of six years.
Judge Pettit was succeeded by Lyman Walker, who was the first resident of Miami county to occupy the position of circuit judge. Judge Walker was born at Peacham, Vermont, January 26, 1837. Shortly after his birth his parents removed to Thetford, Vermont, where he received his early educational training in the public schools and the Thetford Academy. In 1854 he entered Dartmouth College and was a student there for two years, when he changed to Middlebury College and was there graduated with the class of 1856. He then taught school for two years, at the end of which time he began the study of law with Cruss & Topliff at Manchester, New Hampshire. Early in the year 1861 he came to Peru and the following fall took charge of the public schools, establishing the first graded school in the city. About a year later he formed a partnership with Harvey J. Shirk for the practice of law. After two years he went to Cincinnati, Ohio, and practiced there until after the war, when he returned to Peru. In 1878 he was elected judge of the Twenty-seventh judicial circuit and assumed the duties of the office the following year. Judge Walker was above the average man in height and physique, a fluent speaker and had a great influence upon a jury. After serving one term upon the bench he-
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continued in the practice of his profession at Peru until his death, which occurred on March 5, 1894. The members of the bar in the counties of Miami, Grant, Wabash, Fulton and Huntington all adopted resolutions of sympathy and respect upon the occasion of his death, which resolutions were entered upon the records of the court. .
At the fall election in 1884 J. D. Connor, of Wabash county, was elected circuit judge, the district being then composed of the counties of Wabash and Miami, under the provisions of an act passed by the legislature of 1873, and was known as the Twenty-seventh judicial cir- cuit. Judge Connor was an able lawyer and made a good judge, but he was not permitted to serve out his term, so far as Miami county was concerned. The legislature of 1889 redistricted the state for judicial purposes, Miami county being made a circuit by itself, and as Judge Connor's home was in Wabash county the governor appointed James M. Brown judge of the newly established Miami circuit court.
Judge Brown was born in Union county, Indiana, October 16, 1826. He was reared on a farm and received his elementary education in the common schools, after which he attended the Beech Grove Academy. During the next few years he taught school and studied law as oppor- tunity offered, finally entering the office of Nelson Trusler, at Con- nersville, where he completed his studies and was admitted to the bar in 1854. In the fall of 1855 he removed to Peru, where he formed a partnership with Orris Blake. This association was dissolved after
a few years and from 1859 to 1862 he was in partnership with James N. Tyner. Judge Brown served four terms as mayor of Peru before the city government was established, was city engineer for a time, a mem- ber of the school board, two years in the city council, and was associate editor of the Peru Republican for about three years. He was an able lawyer and made a good judge. His death occurred a few years after he retired from the bench.
In November, 1890, Jabez T. Cox was elected to succeed Judge Brown. He was born in Clinton county, Indiana, in 1846, was edu- cated at the Westfield Academy, read law with N. R. Overman, of Tipton, and was admitted to the bar in Tipton county. After prac- ticing for about two years he became editor of the Frankfort Crescent and conducted that paper for about two years, when he returned to Tipton and resumed his profession in partnership with his old pre- ceptor. In 1875 he removed to Kansas, where he was nominated for attorney-general by the Democratic state convention in 1878, but was defeated, although he ran more than three thousand votes ahead of his ticket. He returned to Indiana in 1883 and located at Peru; was elected to the legislature in 1886 and circuit judge in 1890, as already
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stated; was reëlected judge in 1896 and served two full terms. He is still engaged in practice in Peru as the senior member of the law firm of Cox & Andrews.
In 1902 Joseph N. Tillett was elected the successor of Judge Cox. He is a native of Miami county and a member of one of its best known families. He was admitted to the bar in September, 1890. Before being elected to the bench he had served as prosecuting attorney. His admin- istration during his first term was evidently satisfactory to the people of the county, as he was reelected in 1908 for a second term of six years.
Such in brief is the history of the circuit court in Miami county and the character of the men who have presided over its transactions. The courts of the state underwent a rather radical change by the adoption of the new constitution in 1852, when the office of associate judge was abolished. As a matter of fact, this office was more for show than for actual utility. They were residents of the county and most frequently had a limited knowledge of the law, hence their deci- sions were nearly always in harmony with those of the president judge. John A. Graham, in his History of Miami County, comments upon the associate judges, in a somewhat sarcastic vein, as follows :
"One almost regrets the absence from the bench of the associates. It is true they were not distinguished, in a general way, for their pro- fundity in legal lore, but they gave to the tribunal, especially when in consultation, a look of sapient dignity, and to judicial rulings the moral force of conclusions reached by three persons without division of opinion. Whether the associates sacrificed their own convictions of law in concurring so uniformly with the president, as they were in the habit of doing, or whether their concurrence was inevitable from an independent understanding of the law, is one of those mysterious ques- tions of fact about which it might be unjust to express an opinion. It was no uncommon thing, however, for the irreverent first settler to speak of them as ciphers, and of supplying their places by wooden men."
Another change that came to the courts under the new constitu- tion was the simplifying of the code of practice and the elimination of many of the old common law methods, with their long and tedious forms. At first, some of the older lawyers were inclined to resent the introduction of the new code. They had studied the common law methods, were thoroughly imbued with their principles, were reluctant to abandon them for what they regarded an experiment. So pro- nounced was this opposition that some of the old timers gave up their practice altogether, rather than to adapt themselves to the new-fangled motions. But as time went on the justice of the new system grew in
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popularity and those of the older attorneys who continued in prac- tice admitted that there was "some improvement at least over the old way."
THE PROBATE COURT
In 1831 the legislature passed an act providing for the establish- ment of a probate court in each county of the state. This court had jurisdiction in nothing but probate matters. Under the provisions of the law the probate judge was elected on the first Monday in August and was to receive a salary of three dollars per day while his court was in session. In the absence of the regular probate judge the asso- ciate judges of the circuit court were judges ex-officio of the probate court. The probate judge could practice law in all the courts of the state except his own and the clerk of the circuit court was also clerk of the probate court. Another provision of the law was that the qualifica- tions of a candidate for probate judge had to be certified to by either a judge of the supreme or circuit court.
This law was passed three years before the organization of Miami county. A probate court was established in the county soon after its organization, but the early records of its acts were destroyed by the courthouse fire in 1843, and the names of the judges prior to that time have been lost. Jonathan R. Smith was probate judge in May, 1843-the first session of the court of which there is any authentic account-and he continued in office until the fall of 1848, when he was succeeded by Reuben C. Harrison. Judge Harrison served as probate judge until the office was abolished by the constitution of 1852 and its business transferred to the
COURT OF COMMON PLEAS
The first common pleas courts in Indiana were established in 1848, in the counties of Jefferson, Marion and Tippecanoe. Upon the adop- tion of the new constitution in 1852 common pleas courts were estab- lished in every county of the state and were given exclusive jurisdic- tion of probate matters. They likewise had concurrent jurisdiction with the circuit court in all actions except those for slander, libel, breach of marriage contract, on official bonds of public officers, where title to real estate was involved, or where the sum in controversy did not exceed $1,000. In criminal cases the court had jurisdiction of all offenses less than felony, except those over which justices of the peace had exclusive jurisdiction, and under certain prescribed restrictions the common pleas court might hear and decide cases of felony. It also Vol. 1-21
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had concurrent jurisdiction with justices of the peace where the amount involved in dispute exceeded fifty dollars.
Judges of the common pleas courts received salaries ranging from $300 to $800 per annum. They could practice law in all the courts of the state except their own. When the common pleas court was first established appeals could be taken from it to the circuit court, but this privilege was afterward abolished, though appeals could be taken to the supreme court of the state. The clerk and sheriff of the county performed their respective duties for the court of common pleas the same as for the circuit court. From time to time the jurisdiction of the court was extended and by the act of June 11, 1852, the judge was made ex-officio judge of the "court of conciliation." This court had jurisdiction in actions for libel, slander, malicious prosecution, false imprisonment and assault and battery, but its power extended only to effecting a reconciliation or compromise between the litigants. In such cases no attorney was permitted to appear for his client, but the plaintiff and defendant were given a private hearing by the court. After each had stated his side of the case at issue the judge explained the law. "in such cases made and provided," and very often effected a reconciliation or compromise without the delay and expense of a trial in open court. In cases where the rights of minors were involved, appearance was made by a parent or guardian, and in the case of a female by her husband or next friend. The court of conciliation was abolished in 1867.
The first session of the common pleas court in Miami county was held in January, 1853, with Robert F. Groves as judge. After that the common pleas judges, with the time each entered upon his official duties, were as follows: Samuel L. McFadin, January, 1857; Kline G. Shryock, November, 1860; D. D. Dykeman, November, 1862; T. C. Whiteside, July, 1865; James H. Carpenter, November, 1870; Daniel P. Baldwin, March, 1871; John Mitchell, December, 1872. Early in the year 1873 the common pleas court was abolished by an act of the legis- lature, the last session in Miami county being held in March of that year. All cases pending in the court were transferred to the circuit court for final adjudication.
A list of the probate and common pleas judges has already been given in connection with the history of those courts. Following is a list of the judicial officials of Miami county since its organization, or of the district of which Miami county was a part, with the year in which each was elected or entered upon the duties of his office.
Circuit Judges-Gustavus Everts, 1834; Samuel C. Sample, 1836; Charles W. Ewing, 1837; Henry Chase (appointed), 1839; John W.
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Wright (elected), 1839; Horace P. Biddle, 1847; Robert H. Milroy, 1852; John U. Pettit, 1853; John Brownlee, 1854; John W. Wallace, 1855; Horace P. Biddle, 1860; Dudley H. Chase, 1872 (Judge Chase was a resident of Cass county and when the legislature of 1873 redis- tricted the state Cass was thrown in another district, leaving Miami county without a circuit judge) ; John U. Pettit (appointed for Wabash and Miami), 1873; Lyman Walker, 1878; J. D. Connor, 1889; James M. Brown (appointed), 1889; Jabez T. Cox, 1890; Joseph N. Tillett, 1902.
Associate Judges-Jacob Wilkinson and Stephen S. Shanks, 1834; George S. Fenimore, 1836; Albert Cole, 1841; Daniel Potter, 1848. The office of associate judge was abolished in 1852.
Prosecuting Attorneys-Samuel C. Sample, 1834; Thomas John- son, 1836; Spier S. Tipton, 1842; William Z. Stewart, 1844; David M. Dunn, 1846; William S. Palmer (for March term only), 1847; Nathan- iel McGuire, 1848; William Potter, 1849; John M. Wilson (special prose- cutor) 1852; John Connell, 1853; Isaiah M. Harlan, 1854; Orris Blake, 1856; R. P. DeHart, 1858; W. S. Benham, 1860; M. H. Kidd, 1861; Thomas C. Whitside, 1862; Dudley H. Chase, 1866; Alexander Hess, 1870; Nott H. Antrim, 1874; Macy Goode, 1878; Charles Pence, 1884; E. T. Reasoner, 1886; Frank D. Butler, 1890; Joseph N. Tillett, 1894; Lyman B. Sullivan, 1898; John T. Armitage, 1900; Claude Y. Andrews, 1902; John H. Shunk, 1904; Vites E. Kagy, 1906; George F. Merley, 1910 (resigned and Hal C. Phelps appointed to the vacancy) ; Hal C. Phelps, 1912.
THE BAR
Along with many other institutions of the "good old times" the pioneer lawyer has gone, never to return. When Miami county was organized there was not a resident attorney within her borders. The lawyers of that day rode the circuit with the judge and practiced in all, or nearly all, the counties of the judicial district. Each carried his library-a few standard text-books on law, with an occasional vol- ume of reports-in a pair of saddle-bags thrown across his horse behind him and they were always accommodating enough to lend books to each other. In those days there were no steam heated hotels in the county seats and after the court adjourned for the day the judge and the law- yers would gather in front of a huge fireplace in the log tavern, where they could chew tobacco, spit in the fire, review cases in which they had participated, and "swap yarns" until it was time to retire. But next morning the sociability ceased. The judge resumed his dignity
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when he took his seat upon the bench and the lawyers buckled on their armor for the fray. Perhaps some lawyers of the present day, quar- tered in modern office buildings, with a well selected library of legal authorities, with a stenographer to take briefs from dictation and tran- scribe them on a typewriter, with a telephone at his elbow, may show an inclination to sneer at the old time lawyer, but it must be remem- bered that "there were giants in those days." As the student of Indi- ana history looks back over the pages of the past he sees the names of early lawyers who helped to lay the foundation of the state's institu- tions, and of jurists whose opinions are still quoted by the courts as the very quintessence of legal authority.
Among the early attorneys who practiced in Miami county were David H. Colerick, Charles Ewing and Henry Cooper, of Fort Wayne; Benjamin Hurst, Henry Chase, John W. and Williamson Wright, of Logansport. John Bush is credited with having been the first resi- dent attorney in the county. Little is known of him beyond the fact that he purchased the ferry across the Wabash river and operated it in connection with his law practice. To protect his interest in this ' matter he was one of the leading opponents to the proposition to build a bridge over the river, as already mentioned. A complete list of attor- neys prior to 1843 cannot be obtained. At the September term in 1843 the following lawyers were admitted to practice in the Miami cir- cuit court : Daniel D. Pratt, Horace P. Biddle, William Z. Stewart, Ebenezer P. Loveland, Alphonso A. Cole, Nathan O. Ross, Spier S. Tipton and M. W. Seely. Most of these men had been admitted to practice some years before that date, but then, for the first time, their names appear upon the records as attorneys at the Miami county bar. Of these gentlemen Loveland, Cole, Ross and Seely were residents of Miami county.
E. P. Loveland was born at West Rutland, Vermont, November 25, 1817. Ten years later his parents removed to Granville, Ohio, where he received his early education in the public schools. After the death of his father in 1833 he taught school, studying law in his spare time, and then entered a law office at Richmond, Indiana, where he com- pleted his legal education. In 1840 he came to Miami county and began the practice of his profession in Peru. For a time he was the senior partner of the law firm of Loveland & Beal and later was associated with Nathan O. Ross, in the firm of Loveland & Ross, which was regarded as one of the leading law firms of the county. In 1856 he founded the Peru Republican and from 1863 to 1867 was assistant paymaster of the Indiana Legion. He was vice-president of the company that built the railroad between Peru and Laporte and was one of the prime
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movers in bringing the Howe Sewing Machine Works to Peru. When that factory burned on February 10, 1871, Mr. Loveland lost his life by being crushed by falling debris while trying to save the building from destruction. The members of the bar met and passed resolutions of sympathy and condolence, one of which declared: "That by this dreaded visitation our county has lost a worthy citizen and the bar a member who had the ability to have achieved its highest honors." Two of Mr. Loveland's sons-Hood P. and Robert J .- are now members of the Miami county bar.
Alphonso A. Cole was born at Zanesville, Ohio, December 25, 1818, a son of Judge Albert and Mary (Galpin) Cole. His paternal grand- father was Captain Stephen Cole, a Revolutionary soldier, who lived at Farmington, Berlin and Kensington, Connecticut, from 1745 to 1801. In 1834 Alphonso A. Cole came with his father to Peru. He studied civil engineering and he began his business career as an assistant engineer on the Wabash & Erie canal before he was of age. Later he studied law and was admitted to practice at the Miami county bar. In February, 1845, he formed a partnership with Merritt W. Seely, under the firm name of Cole & Seely. Afterward he was at different times associated with Edward T. Dickey, in the firm of Cole & Dickey, and with Daniel D. Pratt, in the firm of Pratt & Cole. From 1847 to 1851 he represented Miami county in the lower house of the Indiana legis- lature. On December 25, 1850, he married Miss Sarah, daughter of Dr. Benjamin and Rachel (Stinson) Henton. In the fall of 1854, on account of failing health, he removed to his farm "Fountainglen," three miles northwest of Peru, where he continued to reside until his death on August 2, 1862. He left a widow and three sons-Richard H., Charles A. and James Omar Cole, Jr. The mother of these sons died on March 1, 1906, and James O. Cole, Jr., died in 1881.
Nathan O. Ross was an able and successful advocate, a diligent student of the law in all its phases and a safe counselor. He was not a brilliant orator, but what he said had weight with courts and juries because of his high standing and reputation as a lawyer. During the later years of his practice he was the attorney for the Pan Handle Railroad and spent most of his time in Logansport.
Among the lawyers admitted in 1845 was John M. Wilson, who later became one of the most noted criminal lawyers of the Wabash valley. He had scarcely established himself in the practice of his profession at Peru when the Mexican war began and he raised a company for service in that conflict. As captain of the company he made a good military record, after which he resumed his law practice until the beginning of the war of 1861, when he again forsook the forum for the
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field and rose to the rank of colonel. He then practiced law until a short time before his death in April, 1876. At the time of his death, Judge John U. Pettit, who knew him well, paid him this tribute: "In many respects Colonel Wilson was a remarkable man. To his last he had the warmth and cheeriness and loving confidence of a child. Here at the bar he is best known. He had, so to express it, a genius of speech -sentences not contrived, measured and modulated, clothed in the drapery of chosen language, warm with thought and feeling, and on proper occasions said with just resentment, were often full of eloquence. If he had any fault of mental character, it was that to natural resources, so ready and always at hand, they were relied on for the occasion, sudden, instead of being husbanded and trained and disciplined for great opportunities."
In March, 1856, Josiah and John L. Farrar were admitted to prac- tice in the circuit court of Miami county and both became leading mem- bers of the bar. They were brothers, born in Jefferson county, New York, and came with the family to Miami county in 1847. John read law with Charles E. Stuart, of Kalamazoo, Michigan, and Josiah studied for awhile with H. J. Shirk, of Peru, after which he returned to New York and completed his legal studies in the city of Rochester. The brothers then formed a partnership and engaged in practice in Peru. John achieved a wide reputation as criminal lawyer and was a public speaker of great force and eloquence. Josiah entered the Union army in 1862 as captain of Company D, Ninety-ninth Indiana Infan- try, and was mustered out at the close of the war as colonel of the regi- ment. His son, William C. Farrar, is still a practicing attorney of Peru.
James N. Tyner was admitted to the Miami county bar about the beginning of the year 1860. He was born in Franklin county, Indiana, January 17, 1826. His mother was a sister of Noah Noble, governor of Indiana, and James Noble, one of the early United States senators from this state. Mr. Tyner was educated at the Brookville Academy, after which he went to Cambridge City, Indiana, and engaged in mer- cantile pursuits. In June, 1851, he located in Peru, where he was admitted to the bar and formed a partnership with James M. Brown, under the firm name of Brown & Tyner. In 1856 he was the Republi- can candidate for representative in the state legislature, but was defeated by a small majority. From that year to 1862 he served at each legislative session as one of the secretaries of the senate, when he was appointed special agent of the postoffice department, in charge of the postal service in Indiana and Illinois. He was removed in 1866 by order of President Johnson and two years later was elected to rep-
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