USA > Michigan > Montcalm County > History of Montcalm County, Michigan its people, industries and institutions...with biographical sketches of representative citizens and genealogical records of many of the old families Volume I > Part 43
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The first session of the Montcalm county court was held in Greenville, at the house of Morton Shearer, on June 11, 1850. Hon. Josiah Russell pre- siding. "Newcomb J. Ireland vs. Ira Porter" was the first case called and the court journal has the following record in relation thereto: "This cause. being called, was answered to by the plaintiff, and was by him withdrawn."
The second case placed upon the docket was entitled "Abel French and Henry M. Moore vs. Frederick W. Worden and Ananias Worden." "This cause being called, was answered to on the part of the plaintiffs by William Backus, and on the part of the defendants by Frederick W. Worden. The suit was then withdrawn by the plaintiffs. There being no further business, the court adjourned."
Judge Russell opened court at the same place, September 10. 1850, but there being no business before His Honor, the court "was adjourned sine die." On December 10 following, court was again opened, when, the suit entitled "Caleb Kniffen vs. Luther R. Jenks" being called, it was answered to by the plaintiff and by the defendant. Adam L. Roof. as attorney. appeared for the plaintiff, and .A. F. Bell, of the firm of Blanchard & Bell. for the defendant. Mr. Bell argued that "this is not the time for holding a court in this county, also that the county has no lawful place for holding a court." The court decided, however, that "this is the day for the opening of a regular term of this county court, and that the house of Morton Shearer is the legal place for holding said court." Mr. Bell then pleaded that the seal attached to the papers in the case was not lawful, and again obtained an adverse decision from the court. The case was finally adjourned, by consent of all parties, to the next term.
The next term of the county court was opened on March IT. 1851. Hon. Josiah Russell presiding. The case of "Kniffen vs. Jenks" being called, Charles C. Ellsworth appeared as attorney for the plaintiff and with- drew the case, whereupon judgment was rendered against the plaintiff for costs. Judge Russell afterwards held terms of court which were convened June 10, September 9 and December 9. 1851. but it does not appear, taken
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MONTCALM COUNTY, MICHIGAN.
all in all, that much business was transacted in the county court of Mont- calm. At last, by a limitation embodied in the constitution of 1850, and under provisions of an act of the Legislature, approved June 28, 1851, the ' county courts of Michigan ceased to exist, and the suits still pending were transferred to the circuit courts.
In 1824 the three judges of the supreme court were required to hold an annual term in each of the counties of Wayne. Monroe. Oakland. Macomb and St. Clair and were authorized to hold special sessions in Crawford. Brown and Michilimackinac counties whenever deemed advisable "in their sound discretion." In 1825 circuit courts were established by name, but were still held by the judges of the supreme court. The circuit court was given original jurisdiction in all civil actions at law where the demand exceeded one thousand dollars, of actions of ejectment. of all criminal cases punishable capitally. and of all cases not exclusively cognizable by other courts, concurrent jurisdiction with county courts in civil actions beyond the jurisdiction of justices of the peace, and of criminal offenses not punish- able capitally and appellate jurisdiction from county courts. The circuits were not changed by this act of 1825. Another act was passed in 1827. repealing the essential provisions of the acts of 1824 and 1825. and provid- ing for two more circuits, viz : Washtenaw and Lenawee. The same discre- tionary powers as to hokling terms in Crawford, Brown and Michilimack- inac counties were continued.
CIRCUIT COURTS.
In 1833 the county courts in all the counties of the territory east of Lake Michigan except Wayne were abolished and their places supplied by "the circuit court of the territory of Michigan. It consisted of one circuit judge for the entire circuit, and two associate judges for each county. The circuit judge was appointed for four years and the associate judges for three. The court had both chancery and common law jurisdiction and was given original jurisdiction of civil cases at law and crimes not within the jurisdiction of a justice of the peace, and appellate jurisdiction of such as were. It might also determine questions of law arising on motions for new trial or in arrest of judgment. The circuit courts already existing were now called superior circuit courts, and were empowered to issue writs of error to the circuit courts. William A. Fletcher was judge of the circuit court of the territory from the organization of that court until Michigan became a state.
468
MONTCALM COUNTY, MICHIGAN.
By act approved March 26, 1836, the state was divided into three cir- cuits, and judges of the supreme court were to perform the duties of cir- cuit judges. These courts were given the same powers and jurisdiction as the territorial circuit courts under the act of 1833, except in chancery mat- ters. By the revision of 1846, the court of chancery was abolished and chancery powers conferred upon the several circuit courts. Since then the jurisdiction of circuit courts has been essentially as at present. The Con- stitution of 1850 made the office of circuit judge elective and the term of office six years. The last act revising the arrangement of the circuits was approved on May 29, 1897, and provided for thirty-five circuits. Act No. 15, Public Acts of 1899, created the thirty-sixth circuit. Acts Nos. to and 220, 1901. created the thirty-seventh and thirty-eighth circuits. Act No. 75, 1907, created the thirty-ninth circuit. Act No. 303, 1915, created the fortieth circuit.
By the Constitution of 1909, circuit courts are required to be held four times each year in every county organized for judicial purposes. In addition, the Legislature is granted power to combine the circuits into judi- cial districts and provide the manner of holding courts in such districts.
By an act of the state Legislature, approved March 31, 1851, entitled "An Act to establish a Circuit Court in the County of Montcalm," it was provided that two terms of the circuit court should be held in the county during each year, and that the circuit judge of the fifth district, within twenty days after his appointment, "be authorized and required to appoint the time of holding the terms of circuit court in Montcalm county." Pur- suant to the provisions of this act, therefore, the opening of the first circuit court in this county was made a matter of record as follows :
"Greenville, October 1, 1851.
"State of Michigan, Montcalm County :ss.
"This being the first Wednesday of October of said year, and the day appointed by the circuit judge, pursuant to law, for the opening and organ- ization of the circuit court in said county of Montcalm, the court convened at the house of Morton Shearer, in Greenville, in said county, the place designated for holding said court, and was opened by proclamation of Abel French, sheriff. Present, Hon. George Martin, circuit judge. There being no business before the court, the same was adjourned by proclamation of the sheriff sine die.
"(Signed) GEORGE MARTIN, "Circuit Judge."
MONTCALM COUNTY, MICHIGAN. 469
At the December, 1851, term the judge was not present, and court was adjourned by the clerk. The term commencing June 15, 1852, was opened by proclamation of Under Sheriff Isaac W. Van Fossen, but, in the absence of the judge, was adjourned until the following day. Pursuant to adjourn- ment. the court was again convened at three o'clock P. M., June 16, 1852, present Ilon. George Martin, circuit judge, when the first suit, entitled "George Galloway vs. Josiah Russell; action, an appeal trespass on the case," came up for a hearing. The case being called, C. C. Ellsworth, attorney, answered for his client, the defendant. but, by consent of all parties, the case was continued to the next term.
The next case on the docket was entitled "James Trippe and John F. Tripp vs. Abel French and Henry M. Moore; action, in assumpsit." By default of the defendants, on motion of L. Moore, the plaintiffs' attorney, the plaintiffs proceeded to trial, and at its close judgment was rendered against the defendants in the sum of five hundred and twenty-two dollars and eighteen cents damages, and costs of suit to be taxed.
Judge Martin continued on this circuit until 1857, holding his last term here in October of that year, when he was succeeded by Judge Louis S. Lovell, who held his first court in this county at Greenville, February 16, 1858.
EARLY JURIES.
The first enrollment of a grand jury was made at a general term held at Greenville in October, 1854. when the following persons, "whose names were drawn according to law, and who were summoned by the sheriff to appear as grand jurors," answered to their names: Harvey Allen, Erastus Fisher, William Husker, James Kent, George Loucks, Charles H. Miel, Rufus K. Moore, Abijah Noyes, Manning Rutan, Phineas Swift, Jr., George W. Stevens, Seth Sprague, William R. Sherman, David Wilson, William Wells and George Van Ness, of whom, Rufus K. Moors served as foreman and Seth Sprague as clerk.
At the first term of Judge Lovell's court, February 16, 1858, the grand jurors impaneled were John Burgess, John Rossman, William Walkington, Norman Ferris, Peter Despelder, Quartus Joslin, Stephen Cupp, Harvey Allen, C. P. S. Jackson, James Brown, Sr., William Clark, Philander A. Peck, Henry Gillmore, Lyman Demerest, James Taylor, Jr., William Max- sted, Jr., William Lampman, Harley Bump, William M. Crane, Phineas Swift, Obadiah E. Fuller and Charles H. Miel, and at the same time the
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MONTCALM COUNTY, MICHIGAN.
petit jurors assembled were Robert Eastman, Jason Mills, Charles II. Dicker- son, Abram Manse, Bradley B. Crawford, Levi J. Allen, Henry B. Trippe, David K. Goodman, Abel G. Peck, D. C. Sebring, Jeremiah Mabie, Isaac Dickerson, James L. Mann, Hiram E. Russell, Lyman Lamb, Melvin C. Bacon, Erastus Bates, Joe Wilson, Robert Lum, Erastus Fisher. Henry L. Sanford. Ebenezer Ferrand and William Stokes.
CIRCUIT JUDGES.
Since the organization of Montcalm county in 1850, there have been but four judges of the circuit court. Judge George Martin, who came upon the bench in 1852. served until 1858, when he was succeeded by Louis S. Lovell. Judge Lovell served continuously until 1882 and was then suc- ceeded by Vernon H. Smith, a Democrat, who was defeated for re-election in 1894 by the present judge of the court, Judge Frank D. M. Davis, of Ionia. When Judge Davis's term expires, in 1918, he will have served a continuous period of twenty-four years.
The last race made by Judge Lovell in 1881 provoked determined oppo- sition from different factions represented in the county. According to the Stanton Weekly Clipper, Judge Lovell had been elected to the bench when a comparatively yonng man, and in 1882 had completed four terms or twenty-four years on the bench. Moreover, it seems that there had been a tacit understanding among the politicians, when Judge Lovell had been elected in 1876 that he would not be a candidate again. Early in February, 1881, the Greenville Independent announced Judge Lovell's candidacy for a fifth term. and this provoked the Weekly Clipper of February 11, 1881, to say : "While we can but concede that the Independent's candidate is en- titled to much respect for the safe and impartial manner in which he has generally presided for the past twenty-four years, there are, in our opinion, very weighty reasons why he should now retire. He is getting quite old and infirm and can retire now, in all probability, with more honor to himself than he can six years hence. The younger members of the bar are almost unanimously opposed to his renomination, and the reasons for their oppo- sition are apparent to all who have witnessed the proceedings in the circuit court for the past few years. While he has generally presided honorably and impartially, it is a notorious fact that, of late years, an inclination to 'set down on' the younger attorneys and listen implicitly to a few older members of the bar has been growing upon him to such an extent as to excite comment from even the uninitiated. We do not presume to say this
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MONTCALM COUNTY, MICHIGAN.
course is the result of any malice toward any one or wanton desire to injure any one, but it does undoubtedly injure young attorneys and their clients and favors the old attorneys. It has had the effect to make men hesitate to employ young attorneys, who are above the average in learning and abilities, because 'they are not in favor with the court,' even though they would otherwise prefer to do so. It has caused them to employ cer- tain attorneys because 'they were in favor with the court.' Thus, at least unintentional, partiality upon the bench has injured one portion of the bar and benefited another, which, of course, has been a corresponding injury and benefit to clients. This state of things is generally recognized by all of the attorneys, and, to a considerable extent, by the people throughout the judicial district. Even the older attorneys themselves admit it. This feeling, existing to the extent it does, will force Judge Lovell to secure his renomination and re-election by an unseemly political scramble, and we do not believe he would wish again, at his age. to go upon the bench under any such circumstances were he elected, which is by no means certain should he be nominated."
Judge Lovell was renominated for judge of the eighth judicial circuit. despite all opposition. In the Republican convention of Montcalm county, held February 21, 1881, he secured the delegates to the eighth judicial con- vention and a little later was renominated at lonia. Vernon H. Smith was nominated by the Democrats and received the endorsement of the People's party. The campaign was extremely bitter; the Democratic press waging an acrimonious attack on Judge Lovell's official record. The blows must have been delivered with telling effect, for at the election held on Monday, April 4, 1881, Judge Lovell was defeated by a rather large majority. . Mont- calm county gave only 2,358 votes to Judge Lovell and 2,789 to his oppon- ent. In the whole district, Judge Lovell was defeated by something more than two thousand votes.
Judge Smith's campaign for re-election in 1887 was also a bitter fight, in which he was supported by the Democratic organs and quite as bitterly opposed by the Republican press. Shortly before the election, Monday, April 4. 1887. The Ionia Sentinel published what purported to be a list of the cases tried by Judge Smith in which his decisions were reversed by the supreme court. In a supplement to the Stanton Weekly Clipper of April 1. 1887, numerous errors are charged in the Sentinel's statements. The Clipper sums up the case by showing that eighty cases tried by Judge Smith had been appealed, of which forty had been affirmed, thirty-nine reversed and one modified.
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MONTCALM COUNTY, MICHIGAN.
Not only was Judge Smith the nominee of the Democrats but he like- wise had the indorsement of the Greenbackers, although there was no fusion of these parties this year. The Republicans nominated Oliver L. Spaulding, of St. Johns, to oppose Judge Smith.
The following was the result of the vote on April 4, 1887:
County.
Smith.
Spaulding.
Clinton
2,863
3,125
Ionia
3,758
2,989
Montcalm
3,396
2,926
10,917
9,040
Majority for Judge Smith, 977.
Six years later Judge Smith's opponent for re-election was the present judge of the eighth judicial circuit, Frank D. M. Davis, of Ionia. The Democratic press of Montcalm county was again on the firing line for Judge Smith, but this time their efforts were less successful. The Repub- lican candidate defeated Judge Smith by a substantial majority at the election held Monday, April 13, 1892, and in Montcalm county received 2,932 votes to 2,133 cast for Judge Smith. Judge Davis was re-elected in 1899, again in 1905 and once more in 1911. He will have served four terms when his present term expires.
PROSECUTING ATTORNEYS.
The following have served as prosecuting attorneys of the Montcalm circuit court : Charles C. Ellsworth, 1851 ; Daniel C. Moore, 1852; West- brook Divine, 1854; Jacob Ferris, 1856; John Lewis, 1858; Charles C. Ells- worth, 1860; Seth Sprague, 1864; John Lewis, 1866; Harmon Smith, 1868; Charles Ellsworth, 1870; Albert G. Thomas, 1872; H. I. Garbutt, 1874; Harmon Smith, 1876; Norris J. Brown, 1880; Charles L. Rarden, 1884; Frank A. Miller, 1888; Bert Hayes, 1892; William S. Whittlesey, 1896; Frank A. Miller, 1898; Earl F. Phelps, 1906; Charles B. Rarden, 1910; J. Claude Youdan, 1912; Frank A. Miller, 1914 to present time.
PROBATE COURT.
By act of the governor and judges, adopted August 31, 1805, the courts of the several districts, or any judge of the said territory, or the
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MONTCALM COUNTY, MICHIGAN.
clerk of the court of the district, were authorized to take the proof of wills and grant letters testamentary and of administration. In 1811 provision was made for the appointment in each district of a register, with essentially the same powers. Finally, in 1818, a court of probate was established in each county, to be held by some "able and learned person," appointed by the governor, from which court appeal might be taken to the supreme court. These courts continued in operation until after Michigan had become a state.
The revised statutes of 1838 made the office of judge of probate elective for a term of four years. In different cases appeals were allowed to the circuit or to the supreme court. The revision of 1846 provided for direct appeals to the circuit court only. The Constitution of 1850 pro- vided for a probate court in each organized county, the judge of which was to be elected for a term of four years.
The new Constitution of 1909 gives probate court original jurisdiction in all cases of juvenile delinquents and dependents. The Legislature may provide by law for the election of more than one judge of probate in counties having more than one hundred thousand inhabitants, and may provide for the election of judges in such counties at alternate biennial elections.
The first session of this court in Montcalm county, according to the records on file in the probate office, was held "at the office of the judge thereof," in Greenville, on Monday, December 1, 1851, Hon. Chauncey W. Olmstead, probate judge, presiding. The first proceedings were "in the matter of the petition of Jacob W. Petty," praying for the appointment of said Petty as administrator of the estate of Samuel S. Coy, deceased. Upon proof being adduced of the death of Coy, it was "ordered that Monday, January 5, 1852, be assigned for the hearing of said petition." At the date last mentioned, however, Josiah Russell was appointed administrator of the Coy estate, giving bonds in the sum of one thousand dollars for the faithful performance of his trust, George Loucks also signing the bond.
The next proceedings were in the matter of the estate of Henry C. Skinner, who died in Eureka, March 26, 1852. In this case Lafayette Knight was granted letters of administration, Issac W. Van Fossen be- coming his bondsman.
A complete list of the probate judges in Montcalm county since the organization of the county is as follows: Stephen H. Warren, 1850; Chauncey W. Olmstead, 1850; Morton Shearer, 1852; Myron Rider, 1856;
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MONTCALM COUNTY, MICHIGAN.
Elijah Coffren, 1860; Jacob M. Dickerson, 1868; Asa Morse, 1872; Norris O. Griswold, 1880; John Lewis, 1884; Edward P. Wallace, 1888; Edward H. Jones, 1892; Oscar Fenn, 1896; C. C. Messenger, 1900; Lucas M. Miel, 1908 to the present time.
CIRCUIT COURT COMMISSIONERS.
The Michigan state Constitution of 1909 provides in Article VII, Section 21, "the Legislature may provide by law for the election of one or more persons in each organized county who may be vested with judicial powers not exceeding those of a judge of the circuit court at chambers," and it was this section which intended to perpetuate the office of circuit court commissioner under the old Constitution. The commissioner is merely a subordinate assistant to the circuit court, and can be vested with judicial powers only in a very subordinate sense, merely quasi judicial, such only as a circuit judge may exercise out of court.
An act now in force in the state of Michigan provides that circuit court commissioners are to be elected every two years and that in counties of twenty thousand or more population there shall be two commissioners instead of one. In Montcalm county two commissioners have been elected instead of one at every election since 1874.
Section 12502 of Howell's Michigan Statutes of 1913. second edition, provides that "circuit court commissioners, qualified according to law, shall severally be authorized and required to perform all the duties and execute every act, power and trust which a judge of the circuit court may perform and execute out of court, according to the rules and practice of such court, and pursuant to the provisions of any statute, in all civil cases, except as herein otherwise provided ; but when any power is given in express terms, by any statute, to a circuit judge or to circuit judges, without naming circuit court commissioners in such statute, such commissioners shall not be author- ized to exercise any such powers."
Since 1854 the following gentlemen have served as circuit court com- missioners in Montcalm county: J. B. Chamberlin, 1854; Jacob Ferris, 1856; John Lewis, 1858; Charles C. Ellsworth, 1860; Charles C. Ellsworth, .1862; Seth Sprague, 1864: Harmon Smith, 1866; Francis Palmer, 1868; Lyman C. Moore. 1870; Harmon Smith, 1872; M. C. Palmer and Norris O. Griswold, 1874; Norris J. Brown and Norris O. Griswold, 1876; Norris J. Brown and Norris O. Griswold. 1878; George C. Ellsworth and Frank A. Miller, 1880; C. W. Perry and Frank A. Miller, 1882; C. W. Perry and
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MONTCALM COUNTY, MICHIGAN.
William A. Briggs, 1884; Joseph M. Fuller and William A. Briggs, 1886; William A. Briggs and Joseph M. Fuller, 1888; Joseph M. Fuller and Bert Hayes, 1890; William A. Briggs and Charles S. Fuller, 1892; William A. Briggs, and C. W. Perry, 1894; C. E. Elliot and Charles S. Fuller, 1896; Asa Morse and Charles S. Fuller, 1898; Asa Morse and Charles S. Fuller, 1900; Charles S. Fuller and William A. Briggs, 1902; Charles S. Fuller and William A. Briggs, 1904; William A. Briggs and C. E. Elliott, 1906; C. E. Elliot and Charles B. Rarden, 1908; C. E. Elliot and William A. Briggs, 1910; C. F. Elliot and Fred J. Cole, 1912; C. E. Elliot and Fred J. Cole, 1914 to the present time.
No person shall be elected to the office of circuit court commissioner unless he be at the time of his election an attorney or counsellor-at-law of the supreme court.
In 1915 the Michigan state Legislature enacted into law the new "Judica- ture Act," comprising four hundred eighty-two pages of text and which is defined by title to be: "An act to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof; the forms of civil action; the time within which civil actions and proceed- ings may be brought in said courts; pleading, evidence, practice and pro- cedure in civil actions and proceedings in said courts; to provide remedies and penalties for the violation of certain provisions of this act, and to repeal all acts and parts of acts inconsistent with or contravening any of the provisions of this act."
A discussion of the radical changes and reforms made in the judicial procedure of this state by this act is not. however, within the province of this chapter or work.
ATTORNEYS WHO HAVE PRACTICED HERE.
The roll of attorneys who have resided in Montcalm county and who have practiced in the courts of this county is incomplete, but from many different sources an almost complete list of attorneys has been obtained. Some of the early lawyers were Charles C. Ellsworth, John Lewis, Lyman C. Moore, George S. Steere, D. A. Elliott, Thomas F. Shields, George H. Cagwin, Harmon Smith, W. E. Hoyt, Charles B. Pratt, Ephraim Follett, Norris J. Brown, Norris O. Griswold and Charles L. Rarden.
Charles C. Ellsworth, who represented the district comprising Mont- calm county in the United States Congress from March 4, 1877, to March
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MONTCALM COUNTY, MICHIGAN.
3, 1879, was born in West Berkshire, Vermont, January 29, 1824. He came to Michigan in 1846 and located at Greenville in 1851. He was the first president of the village of Greenville, and in 1852 served in the lower house of the Michigan state Legislature. In 1862 he served in the Union army as paymaster and also served six years as prosecuting attorney of the circuit comprising Montcalm county. Ellsworth was a dignified man as well as one possessed of extraordinary ability. He had studied law before coming to Greenville, and was admitted to practice at Howell, Livingston county, Michigan. Among the other positions which he held was that of circuit court commissioner. During the latter years of his life he practiced in partnership first with Dexter T. Sapp and John Lewis; then with C. L. Rarden, and lastly with N. O. Griswold. He died at Greenville, Michigan, June 24, 1899.
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