History of Gage County, Nebraska; a narrative of the past, with special emphasis upon the pioneer period of the county's history, its social, commercial, educational, religious, and civic development from the early days to the present time, Part 41

Author: Dobbs, Hugh Jackson, 1849-
Publication date: 1918
Publisher: Lincoln, Neb., Western Publishing and Engraving Company
Number of Pages: 1120

USA > Nebraska > Gage County > History of Gage County, Nebraska; a narrative of the past, with special emphasis upon the pioneer period of the county's history, its social, commercial, educational, religious, and civic development from the early days to the present time > Part 41

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Perhaps the most important case disposed of by the court was that entitled Theodore Hill, Plaintiff, vs. The Central Overland and Pike's Peak Express Company, Defendant. This action also was upon indebtedness claimed to be due plaintiff from defendant, and the pro- perty of defendant, consisting of a number of horses, "two with docked tails"; a nine-pass- enger, four-horse coach, named "Red Rover"; two four-mule teams, and other chattels, had been taken by Sheriff Clyne, in satisfaction of the plaintiff's claim. A jury was waived by both parties to the suit, trial had to the court and judgment entered for plaintiff against the defendant in the sum of $1,395.67, and the sheriff was directed to sell the attached pro- perty in satisfaction thereof.

The second term of district court held in Gage county convened in Beatrice on the 7th day of September, 1865.

"Present; Elmer S. Dundy, Judge, Rienzi Streeter, Clerk, by H. M. Reynolds, Deputy, Joseph Clyne, Shff., J. B. Mattingley, Deputy Shff."

The preliminary entries, after reciting the failure of the county to select a grand jury as by law required, directs the sheriff to call by four o'clock in the afternoon "sixteen good and lawful men, possessing the qualifications of electors in said county, to serve as grand jurors for the present term, according to law in such case made and provided."

The record further recites that the following named persons appeared as grand jurors at four o'clock in the afternoon of that day, namely :

R. C. Davis John Alexander

William Alexander

Wm. Tichnor

Amasa Stevens

Orrin Stevens

Jacob Shaw

Edward Cartwright

Joseph L. Brown A. D. Sage

J. Hinton John T. Pethoud

Michael Conley Wm. McCumsey

John Q. Adams F. Raper

As far as the records of the district court go, this appears to have been the first grand jury called in Gage county. The term lasted a single day, but the grand jurors returned in- dictments against Alexander Dean, for murder in the first degree; Theodore M. Coulter, for embezzlement; and John Fishpaugh, Peter Buckles, Scott Willis and Henry Willis, for assault with intent to commit murder. One of the cases tried and decided by Judge Dundy was the County of Gage vs. Theodore M. Coul- ter, an action brought by the county to re- cover against Coulter the sum of $547.98 embezzled by him while county treasurer. The defendant made default in the case and a judgment was entered for the county against him and his bondsmen for that amount, and he was almost immediately indicted for em- bezzlement.

Coulter was arrested upon this indictment and he was held a prisoner by the sheriff for nearly three years. There was no jail where he could be kept and the sheriff was compelled to board and care for him at the county's ex- pense. It was often very inconvenient for the sheriff to guard or otherwise hold his prisoner in custody. Following the great Indian raid on the Little Blue river in August, 1864, the sheriff, Joseph Clyne, was a member of a com- pany from Beatrice who went on an expedi- tion to the stricken section of the territory, to bury the dead and assist in repelling further invasion. He was compelled to take his prisoner along, as he could find no one willing to have him in charge. After the excitment had abated and Coulter's bondsmen had liqui- dated his defalcation, the expense of providing for the prisoner and. of bringing him to trial outweighed all other considerations and by common consent every opportunity was given him to escape. As a prisoner he was very

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HISTORY OF GAGE COUNTY, NEBRASKA

much of a man of leisure, the board was good and he was clothed, fed, and sheltered at public expense. He sensed the situation per- fectly, talked largely about his innocence and forcing the county to bring him to trial, and made not the slightest move toward relieving the community of his emabrrassing presence. At last, in sheer desperation, he was placed in the custody of the deputy sheriff, James B. Mattingley, and by the deputy was removed to his home in Rockford township a few miles north of Blue Springs. At this home he re- ceived a meager fare and a poor quality of meals. After a few weeks Coulter took the hint and disappeared. No one ever made the slightest effort to apprehend him, and thus ended the first embezzlement case in Gage county.

The indictment of Dean for murder was also largely a farcical matter, though in a more ad- vanced state of society he would no doubt have been immediately arrested and punished. His victim was Spencer Roberts, who owned and lived upon the tract of land where Crab Orchard is now located. He had sold to Andrew Dean, a Dane living on Cub creek, near the "First Homestead," a horse and had taken his note for sixty dollars in settlement for the animal. Roberts, who was a cattle- buyer and stock dealer, called at Dean's house in his absence, to collect the note, and it was alleged he attempted to be familiar with his debtor's wife. She repelled his advances and Roberts left the premises. He afterward re- turned to the house and found Dean and his neighbor, Thomas Clyne, engaged in threshing wheat with flails. He was upon the point of leaving when Dean's wife attempted to as- sault him, and Dean, then learning the identity of the man who had insulted her, his wife ciaimed, grabbed his flail and rushed to at- tack Roberts. Clyne stepped between the men and caught Dean's hand when in the act of striking with the flail, but the short end of the bludgeon struck Roberts, fracturing his skull, from which injury he soon expired. No effort was made to apprehend Dean and he soon disappeared. His indictment was more

to save the face of the community than for any definite purpose of bringing him to punish- ment. This was the first murder of a white person in Gage county of which there is any known evidence, and Dean's indictment was the first one returned by a grand jury in the county, all previous criminal prosecutions hav- ing been within the jurisdiction of the justice court or, where the offense charged was be- yond the jurisdiction of the justice and the of- fender had been bound over, no indictment or prosecution followed, a procedure illustrated in the actions of the prosecuting attorney in dismissing six criminal cases pending before Judge Dundy at the first term of the Gage county district court in 1863.

Judge Dundy continued to hold the office of associate justice of the territorial supreme court until Nebraska was admitted into the Union, March 1, 1867. At the general election of 1866, in contemplation of the change from territorial to state government, William A. Little, of Omaha, was elected chief justice of the supreme court and George B. Lake and Lorenzo Crounse, both of Omaha, were elect- ed associate justices. Before taking office Little died and his opponent at the election, Oliver P. Mason, of Nebraska City, was ap- pointed by Governor Butler (the first of the state governors) chief justice in his stead, to serve until the next general election, when he was elected chief justice of the supreme court of the state of Nebraska.

By an act of the state legislature, approved June 12, 1867, the boundaries of the judicial districts were changed, and the counties of Richardson, Nemaha, Otoe, Johnson, Pawnee, Gage, Jefferson, Saline, Fillmore, and Nuckolls, with the unorganized territory to the west, were designated as the First judicial district. The first term of the Gage county district court after Nebraska territory became the state of Nebraska, was held by Judge Mason, at Beatrice, beginning the 7th day of October, A.D., 1867. The introductory entries are in Judge Mason's own handwriting, and read as follows :

Be it Remembered, That at a regular term

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HISTORY OF GAGE COUNTY, NEBRASKA

of the District Court of the First Judicial Dis- trict, sitting within and for Gage County,

Present O. P. Mason, Judge, Isham Reavis, Dist. Attorney,

Rienzi Streeter, Clerk,

by H. M. Reynolds, Deputy W. T. Brown, Sheriff, T. J. Chesney, Deputy Sheriff, Daniel Freeman, Bailiff.

The following proceedings were had and done: The court having been opened at the time prescribed by law by the sheriff making public proclamation thereof, N. K. Griggs and S. B. Harrington were admitted to practice law in the several District Courts of the State, having been first duly sworn, according to law.

The said sheriff returns in open court a venire heretofore issued for a Grand Jury, and the jury being called, the following named per- sons were present and answered to their names, viz :

Richard Rossiter A. Van Buskirk

Peter Hamma H. D. Lilley

George Stark H. M. Wickham

Sam'l Kilpatrick J. M. Rodgers

J. B. Shaw John Parker

N. Kain H. Hollingworth

John Mumford Alex. Welch

Absent J. J. Dunbar and A. D. Sage. A. D. Sage was excused on account of sickness, and Alexander Welch was found not qualified to act as a juror, on account of being a foreigner, and an attachment was ordered for J. J. Dunbar.

The following named persons were then summoned by the sheriff to serve as Grand Jurors and fill the panel, to wit : F. E. Roper, Christian Euster and George H. Ross.

After the Grand Jurors had all been examin- ed by the Court touching their qualifications as such, H. M. Wickham was duly sworn as Fore- man of the Grand Jury, after which the other Grand Jurors were all sworn in the oath pro- vided by law, and after being charged by the Court retired in charge of Daniel Freeman, a sworn bailiff, to consider their indictments and their presentments.

The said sheriff also returned into open court a venire heretofore issued for a petit jury, and the jury being called, the following named per- sons were present and answered to their names, to-wit :

R. C. Davis John Barrett

J. W. Mumford Henry Shullenbarger

L. P. Chandler F. H. Dobbs

Jacob Hildebrand David Palmer

Amos Hayden H. S. Barnum

Frederick Sprague John Hillman

James Kinzie J. W. Nickols

James Plucknett John Lyons

Alfred Snell William Curtiss

V. S. Whittemore

Egbert Shaw

Robert Nicholas

J. Buchanan

R. A. Wilson

William Wild

As far as disclosed by the records this was the first petit jury ever empaneled in the dis- trict court in Gage county. The term lasted two days and it must have run day and night, as a large amount of business was transacted by Judge Mason. Amongst the cases tried by him at this term was that of Hester Drown vs.

OLIVER P. MASON First Chief Justice of the Nebraska State Supreme Court

George W. Drown, action for divorce. It was tried on the last day of the term, Septem- ber 9th, and a divorce was denied the plaintiff and awarded. the defendant, on account of plaintiff's proved moral deliquencies. This was the first divorce suit ever tried in Gage county.

After empaneling the jury the following order was made by the court: "Ordered that the sheriff of Gage county purchase for the use of the district court within and for Gage county, twelve chairs of good and substantial material and make, and that the same be pur-

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HISTORY OF GAGE COUNTY, NEBRASKA

chased at the expense of the said county of Gage."

Within the two days' session of the court occurred the trial of The People of the State of Nebraska vs. John Fishpaugh, Peter Buckles and John Scott Willis, indicted for riot. The jury empaneled to try the case were Jacob W. Mumford, Jacob Hildebrand, Fred- erick Sprague, James Kinzie, James Plucknett, Alfred Snell, Robert Nicholas, V. S. Whitte- more, John Hillman, F. H. Dobbs, David Palmer, and John Lyons.

"After hearing the evidence introduced as well on the part of said prisoners as on the part of the People of the State of Nebraska, and after hearing the arguments of counsel and the charge of the court, the jury retired in charge of a sworn officer to consider their verdict. And after consulting and deliberat- ing thereon, returned into court the following verdict :

'We, the jury, find the defendants, John Fishpaugh, Peter Buckles and John Scott Willis, guilty as they stand charged in the in- dictment. F. H. Dobbs, Foreman'."

This was the first trial jury empaneled and this the first verdict rendered by a jury in the district court of Gage county.

From 1867 to 1873 Judge Mason, chief justice of the supreme court, was the district judge of the First judicial district of Nebraska, and was succeeded by Daniel Gantt. The state supreme court retained its original ter- ritorial organization until the adoption of the present state constitution, in 1875. By its pro- vision, district judges were elected and mem- bers of the supreme court ceased to be trial judges in the judicial districts. The first dis- trict judge of the First judicial district under the constitution was Archibald J. Weaver, of Falls City. He was elected to this office at the general election in 1875 and reëlected in 1879. Before his second term expired, at the general election in 1883, he was elected to the Forty-eighth congress from the old First con- gressional district, and in the fall of 1885 he was reelected, to the Forty-ninth congress. He was a man of great force of character, of in-

defatigable energy and of unquestioned integ- rity of character. He was kindly, generous, hospitable, and one of the most companionable of men. He was of such striking appearance and commanding physique as to attract at- tention in any crowd. His career as a judge in the old First judicial district will never be forgotten while a single member of the bar of that district who appeared in his court re- mains alive. His power in the dispatch of judicial business was phenomenal and his court ran at high pressure by day and a part of every night. He had remarkable sagacity in divining the intents and purposes of men and any crooked or fraudulent deal never got by him, so far as any lawyer ever knew. He con- tracted a slight attack of pneumonia and, af- ter an illness of three days, died April 18, 1887, when in the prime of life and ere he had ap- proached the zenith of his great powers and usefulness. Perhaps no man in Nebraska had been so showered with honors and few, if any, ever had a future of greater possibilities.

Judge Weaver was succeeded on the bench of the First judicial district by Jefferson H. Broady, of Brownville, at the election of 1883.

Judge Broady served the district most faith- fully for four years. Before the expiration of his term of office the legislature of 1887 authorized the election of two judges for the First judicial district, and at the fall election that year Judge Broady was reelected, and with him Thomas Appleget, of Tecumseh. At the close of his term of office Judge Broady retired from the bench, honored and respected by the entire bar of the First judicial district, having for eight busy years given power, digni- ty and honor to the bench of the district. He had been living in Beatrice for three or four years but in 1901 he removed to Lincoln and re-engaged in the practice of the law. He died a few years ago, mourned by almost the entire state.

In 1891 the legislature redistricted the state as respects the judicial districts. The bound- aries of the old First judicial district of Weav- er's and Broady's day, which comprised Rich- ardson, Nemaha, Johnson, Pawnee and Gage, was changed to include Jefferson county. The

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provision for the election of two judges in the district was retained, and at the general elec- tion of 1891 Albert H. Babcock and James E. Bush, both of Beatrice, were elevated to the judicial district bench. In 1895 Charles B. Letton, of Fairbury, and John S. Stull, of Auburn, were elected judges of the district, and each was reëlected in 1899. At the elec- tion of 1903 Albert H. Babcock, of Beatrice, and W. H. Kellegar, of Auburn, were elected district judges of the First judicial district. Be- fore his term of office expired Judge Babcock died, and John B. Raper, of Pawnee City, was appointed by Governor Mickey to fill out his unexpired term. At the fall election of 1907 Leander M. Pemberton and John B. Raper were' elected, and both have by succes- sive elections held this important office till the present moment.

In 1911 the legislature, by a reapportionment of the judicial districts, created district No. 18, consisting of Gage and Jefferson counties, and Judge Pemberton was assigned for ser- vice to this district. He is the present in- cumbent of the office.

Speaking generally, the judges of the dis- trict court of the several judicial districts to which Gage county has belonged have been lawyers of ability and of great worth of char- acter. Some were called to even higher ser- vice than the district judicial bench. Judge Dundy was, in 1868, elevated to the bench of the Federal district court of Nebraska, and he occupied that position until his death, Octo- ber 28, 1896. Judge Weaver passed from the district court bench to a seat in congress ; Judge Gantt was elected a justice of the su- preme court in 1867 and at the time of his demise, in 1878, was chief justice of that great court ; Judge Letton, after nearly eight years' service on the district bench of the First judi- cial district, was, in November, 1903, appointed one of the supreme-court commissioners, and in 1905 he was elected a justice of the supreme court of the state, a position he has since held. He is a candidate for a second reëlection, with every prospect of success.

The intimate relationship which always ex- ists between bench and bar in the public mind

as well as in actual practice, gives pertinency to what will be said concerning the lawyers of Gage county.

The bar as a branch of the American sys- tem of jurisprudence was given standing by the first general assembly of the territory of Nebraska in an act approved March 9, 1855, entitled "An act regulating the admission of attorneys." It is very brief. The first sec- tion provides that "any person twenty-one years of age who can produce satisfactory evidence of a good moral character and .pass an examination before either the judges of the district court or before the justices of the supreme court of this territory, shall be licensed to practice as an attorney at law and solicitor in chancery in all the courts in this territory." And, as a sort of after- thought, the second section of the act pro- vides that "every citizen of this territory may attend to his own cases in all said courts."

At the third session of the legislative as- sembly, begun and held at Omaha January 15, 1857, a code of civil procedure was adopted for the territory, in which the law regarding attorneys and counselors at law was formulated very much as it now appears in the statutes of our state. Under these statutes there has been from almost the first an able, patriotic and trustworthy bar in Nebraska. No class of citizens has contributed as much toward the general welfare, the formulation and enact- ment of wise and wholesome laws, the en- forcement of law and order and the mainten- ance of a high standard of moral character in the community. No other profession excels the lawyers in breadth of learning and ability. The Nebraska bar has always been an influ- ential factor in the public affairs of our state and nation, and in every walk of life it has made a record in which all of its members may feel a just pride. Gage county and the city of Beatrice are monuments to the courage, daring and prevision of a few lawyers, who, with others, gathered into an association in 1857, on board the old Missouri River steamboat "Han- nibal," and resolved to remain together and share their fortunes in the new territory of Nebraska. The senior of these in point of age

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and experience was John Fitch Kinney, who had already acquired reputation as a politician, law-maker, judge and advocate in the states of Ohio and Iowa, and who was the first president of the Nebraska Association, which became in effect the Beatrice Townsite Com- pany. The secretary of this organization was a young man from the state of New York, just entering upon the practice of the law,- schol- arly, courtly John McConihe, whose brilliant career as a lawyer and soldier terminated on the bloody field of Cold Harbor, in 1864. Bennett Pike, a lawyer of rare ability and a man of most affable temperament and great worth of character, was the third of this group of lawyers, who, in a sister state, achieved undying fame in a learned bar in a great city. To these were joined Jefferson B. Weston, who became one of the most distinguished citizens of our state; Obediah B. Hewett, one of the early district attorneys of the old First judicial district of Nebraska and an honored citizen for many years of Nemaha county; and Phineas W. Hitchcock, whose abilities as a lawyer won him senatorial honors in the congress of the United States.

From the first settlement of Gage county, her citizens were largely dependent upon out- side counsel for such legal services as were required in those primitive days. Bolinger & Rumbaugh, at Marysville, Kansas, were fre- quently employed by people of Gage county in handling their affairs. Judge Isham Reavis, the father of Congressman Frank Reavis, was one of the early settlers of Richardson county, and for many years was an active practitioner in the courts of our county, as was also Thomas B. Stevenson, of Nebraska City.

The first resident lawyer of Gage county was Jefferson B. Weston, who was admitted to the bar and authorized to practice his profes- sion about 1862, after having pursued a course of legal studies in Chicago, Illinois. But Mr. Weston found life on the plains more attractive than life in a law office in a primitive com- munity. For several years he engaged in freighting along the Oregon Trail, and in trade and other business ventures in the far west. It was not until about 1868, when the

government land office was removed from Brownville to Beatrice and the country began to fill up rapidly with homeseekers, that Mr. Weston settled down to the practice of his profession. In 1873 he was elected, for a four-year term, to the office of state auditor of Nebraska, and was reëlected for two years. On his election he moved to Lincoln, where he resided until 1880, when he returned to Beatrice and engaged in the banking business. After his election to office he abandoned the practice of law altogether.

Perhaps the most picturesque character who ever assumed to practice law in Gage county was "C. B. R. E." This man had been Charles C. Coffinberry. He had reared a family, almost all grown, to each of whom he had given alliterative names. His eldest son was Cyrian C. Coffinberry; his second son, Crosby C. Coffinberry ; his third son, Corwin C. Coffinberry ; his fourth son was Carter C. Coffinberry; and his handsome and very amiable daughter was Caroline C. Coffinberry, who became the wife of E. B. Hendy, one of the early sheriffs of the county. The head of the family, while a member of the Wisconsin legislature, had procured a legislative enact- ment authorizing him thereafter to appear as plain Mr. C. C. Berry, but his entire family repudiated this shortening of the family cognomen, and insisted upon being known as Coffinberry. This was the first family to locate on the Big Blue river in Rockford township. In the spring of 1858 they settled on the claim which was afterward the homestead of James Hollingworth, and is now owned by his son Charles, a mile and a half south of Holmesville. The eccentricities of this family were a never failing source of gossip and en- tertainment to the early settlers. Nothing could better illustrate this characteristic than the performance of the head of the family as a member of the bar in Gage county. As far as the records show, he was the first lawyer admitted to practice in the county, yet his name is not given, only the initials "C.B.R.E." He acted as district attorney during the first term of district court held in the county, ap- pearing for the people in six criminal cases,

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where in every instance it is gravely written by Judge Dundy "The prosecuting attorney, C. B. R. E., enters a nolle prosequi, by leave of the court first had and obtained." He served repeatedly on election boards, drew money from the county treasury, executed and wit- nessed instruments by these initials, and even went so far as to sign the bond of County Treasurer Theodore M. Coulter for $10,000, and was sued upon this bond as C. B. R. E., the same having been approved by the county commissioners. For years, as far as the records show, this singular representative of the legal profession of our county marched across the pages of its history as "C. B. R. E."

Salmasius Bardwell Harrington was the first lawyer to open and maintain an office in Beatrice. He was born at Maysville, Chan- tauqua county, New York, April 16, 1829, the son of Asa and Mary (Swift) Harrington. His primary education was received in a New York Quaker school. His father died while he was a child and his mother became the wife of Parley Laflin. The family removed to Illinois in 1840, residing at first in Kane county and then in Rock Island county. He worked on a farm, attended public school, and finally entered Woodward College, at Cincinnati, Ohio Later he read law with an uncle, Eben Har- rington, and at the age of nineteen, was ad- mitted to the bar, at Rock Island, Illinois. He engaged briefly in the practice of the law there, but his family moved to Nebraska ter- ritory in 1857, and he came with them, and located in Johnson county, near Gage, a few miles northwest of Crab Orchard, where his half-brother, Louis Laflin, still resides and where his stepfather and mother died many years ago. In 1859 he followed the gold lure to Pike's Peak, and, returning, established a ranch on the Little Blue river, at the eastern end of the Nine Mile Ridge. Here he re- mained a year in the midst of the exciting scenes on the Oregon Trail; he then sold his ranch to a man named Ewing and returned to Illinois, to his wife and daughter. In 1861 he enlisted in the Fifty-eighth Illinois Infantry, and he was captured at the battle of Shiloh, while serving in General Prentice's Division.

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History of Gage County, Nebraska; a narrative of the past, with special emphasis upon the pioneer period of the county's history, its social, commercial, educational, religious, and civic development from the early days to the present time, Part 41

Author: Dobbs, Hugh Jackson, 1849- Publication date: 1918 Publisher: Lincoln, Neb., Western Publishing and Engraving Company Number of Pages: 1120

Author: Dobbs, Hugh Jackson, 1849-
Publication date: 1918
Publisher: Lincoln, Neb., Western Publishing and Engraving Company
Number of Pages: 1120