History of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources Synopsis of public records, biographical sketches, Part 9

Author: Bailey, Dana Reed, 1833-
Publication date: 1899
Publisher: Sioux Falls, Brown & Saenger, ptrs.
Number of Pages: 1128

USA > South Dakota > Minnehaha County > History of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources Synopsis of public records, biographical sketches > Part 9

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Nineteenth term, April, 1885. Court convened April 14. C. S. Palmer, judge; E. G. Wright, district attorney; J. M. Dickson, sheriff; Cyrus Walts, clerk; T. G. Brown, stenographer. One crim-

HISTORY OF MINNEHAHA COUNTY.

inal and fourteen civil cases were tried to a jury. At this term of court several cases of more than ordinary interest were tried. Among them were the cases of S. M. McCormack vs Andrew C. Phillips; Ole Langness vs Justin A. Pettigrew, involving the ques- tion of the defendant's right to maintain his milldam across the Big Sioux at Baltic at the height he had built it; John A. Bankson vs the City of Sioux Falls, claiming damages in the sum of $5,000 for per- · sonal injuries he had received owing to snow and ice being permitted to remain upon the sidewalk on Dakota avenue. In the last men- tioned case a verdict was rendered for the defendant. On March 7, 1883, the territorial legislature passed a law that clerks of the dis- trict courts should be elected in each organized county in the terri- torv. At the November election of the same year J. B. Cloudas was elected for Minnehaha county, and at this term of court, through proper proceedings, he politely invited Cyrus Walts to vacate the of- fice of clerk. Judge Palmer held that the legislature had no author- ity to make such a law; that Congress had given the judges of the supreme court in the territory the right to appoint their clerks, and he retained Mr. Walts. A. C. Biernatzki, S. H. Sibley and Rudolph Schultz were admitted to the bar. Court adjourned July 9.

Rules governing the practice in the fourth judicial district, (thirty-two in number) were adopted July 9, 1885, by Judge Palmer.

Twentieth term, November, 1885. Court convened November 10. C. S. Palmer, judge; E. G. Wright, district attorney; J. M. Dickson, sheriff; Cyrus Walts, clerk; T. G. Brown, stenographer. The grand jury found eight indictments, and was discharged December 12. Nineteen civil and two criminal cases were tried to a jury. On De- cember 1, the following appears in the record:

"In view of the fact that this is the day appointed for the fu- neral of Thomas A. Hendricks of the State of Indiana, late Vice President of the United States, and out of respect for him and the high position he occupied, I move that this Court do take a recess from 12 o'clock noon, until two and half o'clock P. M., the hour set apart for the funeral. E. G. Wright, District Attorney."

The Court ordered recess taken as requested.

Although this term of court was a busy one, no cases of public interest were tried. Park Davis, Alfred Beard Kittredge, Roger W. Cooley and Wm. E. Howe were admitted to the bar. Court ad- journed December 23.

Twenty-first term, April, 1886. Court convened April 13. C. S. Palmer, judge: E. G. Wright, district attorney; J. M. Dickson, sheriff; Cyrus Walts, clerk; T. G. Brown, stenographer. The grand jury found six indictments and were discharged April 17. Eight civil and two criminal cases were tried to a jury. April 21, Judge Bartlett Tripp took the place of Judge Palmer until April 28. J. Ryan, Edwin R. Young and Matt B. Kelley were admitted to the bar. Court adjourned May 4.

Twenty-second term, November, 1886. Court convened Novem- ber 29. C. S. Palmer, judge; E. G. Wright, district attorney; J. M. Dickson, sheriff; Cyrus Walts, clerk; T. G. Brown, stenographer. The grand jury found eleven indictments and were discharged De-

HISTORY OF MINNEHAHA COUNTY.

cember 3. One criminal and twenty-one civil cases were tried to a jury. At this term of court the case of Francis Wiren against the City of Sioux Falls, claiming 55,000 damages for personal injuries received by reason of a defective sidewalk on Phillips avenue, was tried, and a verdict for the defendant was rendered. Quite a num- ber of the cases tried at this term of court were hotly contested, but were of no particular interest, except to the parties involved. Rob- ert Copeland, Joseph Kirby, A. D. Collier, E. A. Sherman, J. G. Eddy, Charles Wilson Smith, Charles E. McKinney, John H. Ferny- hough and Charles P. Bates were admitted to the bar. Court ad- journed December 18.

Twenty-third term, April, 1887. Court convened April 12. C. S. Palmer, judge; A. A. Polk, district attorney; John Sundback. sheriff; Cyrus Walts, clerk; T. G. Brown, stenographer. The rec- ords do not show that a grand jury was summoned at this term of court. Sixteen civil cases were tried to a jury. A good many of the cases tried were important to the parties, as they involved large amounts, but were not of such character as to excite public interest. The case of E. G. Wright against the county, growing out of a disagreement as to the amount of the salary he should receive as district attorney, was tried to a jury, and resulted ina disagreement, and the case was continued. The case of A. A. Polk against the county of Minnehaha, similar to that of E. G. Wright's, was tried to the court and a judgment rendered in favor of the county, which was afterwards reversed by the supreme court. This was the first term of A. A. Polk as district attorney, and he took occasion to dismiss several criminal cases from the docket, that had become too old to prosecute successfully. Benjamin Wyckoff, Charles O. Bailey, Robert Buchanan and R. C. Hawkins were admitted to the bar. Court adjourned April 30.

Twenty-fourth term, November, 1887. Court convened No- vember 8. C. S. Palmer, judge: A. A. Polk, district attorney; John Sundback, sheriff; Cyrus Walts, clerk; E. P. White, stenographer. The grand jury found fourteen indictments. Six criminal and twenty-six civil cases were tried to a jury. This was a term of im- portant cases and large verdicts. Judge Spencer was called in to try the causes growing out of the failure of the first National Bank. Eight verdicts were rendered for the plaintiffs in the following sums: $1,110, $1,260, $1.417, S1,500, $2,500, $4,400, $5,340 and $16,706. In one case involving $12,000, a verdict was returned for defendant, and in two other important cases verdicts were rendered for the defendants. The supreme court reversed a good deal of the work of this term of court. U. S. G. Cherry, Peter J. Rodge, S. W. Sul- livan and Cyrus Walts were admitted to the bar. Court adjourned January 25, 1888.

Twenty-fifth term, April, 1888. Court convened April 10. C. S. Palmer, judge; A. A. Polk, district attorney: John Sundback. sheriff; Cyrus Walts, clerk; E. P. White, stenographer. The grand jury found two indictments and was discharged April 14. One crim- inal and twelve civil cases were tried to a jury. Judge John E. Carland took the oath of office on the 11th day of April and presided

HISTORY OF MINNEHAHA COUNTY.

at this term of court. He appointed W. D. Stites clerk of the court, on April 17, the appointment to take effect April 19. At this term of court John O. Meara was tried for forgery, and after the prose- cution had put in its case, the court advised the jury to return a verdict ofacquittal, which was done accordingly. Charles J. Porter, Wm. H. Wilson, Edward E. Burns and Samuel J. Barrows were admitted to the bar. Court adjourned July 30.

On September 1, 1888, a revision of the rules governing the prac- tice in the fourth judicial district was made, and they were spread upon the records.

Twenty-sixth term, November, 1888. Court convened November 13. John E. Carland, judge; A. A. Polk, district attorney; John Sundback, sheriff: W. D. Stites, clerk; E. P. White, stenographer. Upon the opening of the court an order was made, adjourning court until November 19, and on that day the business of the term com- menced. The grand jury found thirteen indictments, and was dis- charged December 5. Only one criminal case was tried to a jury, which resulted in an acquittal. Twenty-three civil cases were tried to a jury. The case of the Plymouth County Bank vs Frazier Gil- man, which had for a long time stood at the head of the calendar, was tried. Two cases growing out of the M. I. Jacquith failure were tried at this term of court; and two verdicts were directed in im- portant cases growing out of the First National Bank failure. This term of court was a fighting term from the beginning to the end, and although the cases were not of great public interest. the parties and their attorneys were more than usually belligerent. Ralph W. Hobart was admitted to the bar. Court adjourned January 14.

Twenty-seventh term, April, 1889. Court convened April 9. Frank R. Aikens, judge; C. O. Bailey, district attorney; John Sund- back, sheriff; W. D. Stites, clerk; E. P. White, stenographer. The grand jury found eight indictments, and was discharged April 16. There were thirteen jury trials during this term, eleven of them being civil cases. E. G. Wright succeeded in getting a verdict against the county in the sum of $355.50. This was the third trial of the case-the jury disagreeing the first time, and rendering a ver- dict against him upon the second trial, which was set aside and a new trial granted. Comment is unnecessary to establish the fact that E. G. Wright has some fighting qualities in his make-up. This was a very quiet term of court-the cases tried not involving large amounts, with one or two exceptions. It was the last term of the district court in Minnehaha county. Upon the calendar for that term, the names of eighty persons appear as attorneys. Frank H. Knapp, John H. Williamson, Charles A. Gilday and Joseph H. Lord were admitted to the bar. Court adjourned May 3.

JUDGE FRANK R. AIKENS.

HISTORY OF MINNEHAHA COUNTY.

CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, WITHIN AND FOR MINNEHAHA COUNTY.

The constitution of the State of South Dakota was adopted November 2, 1889, and South Dakota became a state on that dav. Under the provisions of article fifth of the constitution, the judicial powers of the state were vested in supreme, circuit and county courts, and justices of the peace, and such courts as might be created by law for cities and incorporated towns. Under the pro- visions of the constitution, the state was divided into eight judicial circuits, and Minnehaha county was placed in the second. There was no term of district or circuit court in Minnehaha county in November, 1889, owing to the change made in judicial matters by the adoption of the constitution. At the first session of the legislature of the State of South Dakota, an act was passed, transferring the business before the territorial district courts to the circuit courts. and fixing the terms of the circuit courts of the state; and by another act, two terms in each year, of the circuit court in Minnehaha county, were provided for to be held on the fourth Tuesday in May, and the second Tuesday in December.

First term, May, 1890. Court convened on the 27th day of May. Frank R. Aikens, judge; C. O. Bailey, district attorney; W. D. Stites, clerk; John Sundback, sheriff; E. P. White, stenographer. The grand jury found eleven indictments, and was discharged June 10. Eight criminal cases were tried, resulting in four convictions and four acquittals, thirty civil cases were tried to a jury. Some import- ant cases were tried at this term of court, but in the greater num- ber of them there was but a small amount in controversy. The case of Maggie O'Rourk vs C. T. Jeffers and Porter P. Peck, was un- doubtedly the most important case of the term, and excited the most public interest. It was an action brought to recover $10,000 for per- sonal injuries received by the discharge of a cannon at the corner of Ninth street and Dakota avenue, during the evening of the great rati- fication meeting of the election of R. F. Pettigrew United States sen- ator. Peck was relieved from any liability by a verdict of the jury, under the direction of the court, and a verdict rendered against Jef- fers, in the sum of $9,500. The last that appears of this term of court in the records is the following: "September 6, the case of Gil- bert Hanson vs Red Rock Township still on trial."

Second term, December, 1890. Court convened in the new court house for the first time December 2. Frank R. Aikens, judge; D. R. Bailey, district attorney; John Sundback, sheriff; W. D. Stites, clerk; E. P. White, stenographer. C. O. Bailey having resigned the office of district attorney, D. R. Bailey was appointed August 21, 1890, to fill out the unexpired term. At the November election, 1890, Albion Thorne was elected clerk of the county and circuit courts, and took the oath of office and commenced his official duties on the 6th day of January, 1891. The old case of the Plymouth County Bank vs Fra- zier Gilman, was again tried to a jury, resulting in a verdict for the defendant. The grand jury returned five indictments, and was dis-

HISTORY OF MINNEHAHA COUNTY.

charged December 12. There were twenty-five jury trials-twenty civil and five criminal cases. The criminal cases tried at this term of court were quite important, and some of them excited a good deal of public interest. The case of the State vs Edward J. Mannix, charged with embezzlement from the Western Union Telegraph Co., was thoroughly tried. C. O. Bailey, W. H. Stoddard and D. R. Bailey for the prosecution, and C. H. Winsor and Judge Carland for the de- fense. C. O. Bailey prepared the case for the prosecution, and it was admirably done, and C. H. Winsor made one of his most eloquent and pathetic appeals to the jury, for an acquittal of the defendant- and the jury said "Amen. " The case of the State vs Dr. C. P. Bis- sell, charged with administering morphine, while under the influ- ence of intoxicating liquors, to B. F. Sheffer, thereby causing his death, was another interesting case. D. R. Bailey for prosecution and Wynn & Nock for defendant. He was ably defended, and the jury disagreed. In the case of State vs Annie Nelson, charged with burning several stacks of wheat, the same attorneys appeared as in the Bissell case, and the jury disagreed. Two other criminal causes were tried, one charging an assault with a dangerous weapon, and one for burglary, in which verdicts of guilty were rendered. Some of the civil causes tried to a jury, were more than ordinarily interesting. The case of Clark G. Coats vs H. L. Hollister-two old friends-was hotly contested and a verdict rendered for the plaintiff in the sum of $15,935.00. The counsel in this case were Judge Pal- mer, Park Davis and D. R. Bailey for plaintiff, and Bailey & Stod- dard and T. B. McMartin for defendant. Another case of consider- able interest, was that of J. A. Wilson vs Drs. Brown & Tufts, the plaintiff bringing suit claiming that the defendants negligently treated a fractured leg of plaintiff's and asking for a large sum in compensation. The testimony in the case showed, that the unfortu- nate condition of the plaintiff, was the result of his own negligence, and the jury found a verdict for the defendants. John Howard Gates and David Winton were admitted to the bar at this term of the court. Court adjourned January 31, 1891.

By an act of the legislature, approved March 7, 1891, the terms of the circuit court in Minnehaha county were changed to the fourth Tuesday in April and the first Tuesday in November.

Third term, April, 1891. Court convened April 28. F. R. Aikens, judge; D. R. Bailey, state's attorney; John Sundback, sher- iff: Albion Thorne, clerk; E. P. White, stenographer. The grand jury found eighteen indictments-ten of them against persons charged with selling intoxicating liquors. Two of these cases were tried, resulting in one conviction and one acquittal. It was at this term of court that the cases of Enos & Bailet vs the St. Paul Fire & Marine Ins. Co., and the Springfield Fire & Marine Ins. Co., were tried. These cases were transferred from Deuel county, owing to the prejudice that had arisen there, in reference to the matter in dis- pute and the parties connected with the cases. The trial occupied the attention of the court more than two weeks, and resulted in a dis- agreement of the jury in both cases. Every inch of ground was con- tested, and the attorneys on both sides came to their work thor-

MINNEHAHA COUNTY COURT HOUSE.

HISTORY OF MINNEHAHA COUNTY.

oughly equipped. Palmer & Rodge appeared for plaintiffs, and Fauntleroy of St. Paul and H. H. Keith for defendants. The jury was discharged June 6, and court adjourned June 10. Charles E. Sutton and William Milchrist were admited to the bar.

Fourth term, November, 1891. Court convened November 17. F. R. Aikens, judge; D. R. Bailey, state's attorney; John Sundback, sheriff; Albion Thorn, clerk; E. P. White, stenographer. The grand jury found thirty-one indictments-a majority of them charging persons with selling intoxicating liquors as a beverage. The grand jury was discharged December 15. At this term of court there were twenty-seven cases tried to a jury, five of them criminal cases, resulting in three convictions and two acquittals. Both of the cases in which there were no convictions, the persons were charged with selling intoxicating liquors as a beverage, and the proof seemed conclusive of their guilt. If the charge had been that of highway robbery, or forgery, the same measure of proof would have resulted in a prompt conviction. The civil cases tried to a jury were not very important even to the parties themselves, except in two or three instances. Enos & Bailett vs the St. Paul Fire & Marine Ins. Co., was tried again, the same attorneys appearing as the term preceding, with the addition of D. E. Powers for plaintiffs. The plaintiffs ob- tained a verdict. These suits were brought to recover, on policies of insurance, against loss by fire, on a stock of goods owned by plaintiffs in Gary, Deuel county. Mr. Enos was indicted in Deuel county for setting fire to the building in which the goods were kept. Of this charge he was acquitted. To say the least, the circumstances were peculiar in connection with this fire. It occurred on Sunday evening, and Mr. Enos testified in substance, that he went to church -was called out to get some article wanted at his store, and when he

went into the store he was assaulted and tied with a rope to some fixture in the store, his person robbed of a large sum of money, and the store fired by his assailants. There was a good deal of testi- mony in reference to the manner he was tied, the condition he was found in, and the character of his injuries. The cases growing out of this fire were expensive, and the tax payers of Deuel county had reason to feel sore over it. Deuel county paid Minnehaha county about $1,200 for court expenses during the trials. At this term of court, the case of David Winton vs Charles Huntimer, was tried to a jury, and a verdict rendered for the defendant. Low water in the lake on section 3, in Taopi, was the primary cause of the trouble from which the suit originated. Winton was aiding a client to get possession of a crop raised on land from which the water of this lake had receded. His client plowed the land and Huntimer sowed it and cut the grain, and both parties wanted the crop-and a colli- sion occurred. Winton claimed, that Huntimer used a pitchfork on him, instead of the bundles of grain, and Huntimer claimed, and Winton admitted, he had prodded Huntimer with his fork. Captain Stoddard tried the case for Huntimer, and was unusually funny, and convinced the jury that it was only a little fracus after all, that the parties undoubtedly enjoyed the diversion, and only a bold, bad jury would think for a moment of taking the case into serious consider-

HISTORY OF MINNEHAHA COUNTY.

ation. The case of H. H. Wood vs W. H. Ridell, et al, was also tried, Palmer & Rogde for plaintiff, Keith & Bates and Judge Car- land for defendant. The jury was empanelled in this case Decem- ber 3, and rendered a verdict for plaintiff December 11. This was a Red Rock case, involving the boundary line that had been established by a recent survey of the township. It was a sharp trial, and parti- cipated in not only by the parties directly interested, but by others who thought that the verdict in this case, would to a certain extent at least, affect their interests. The testimony as to the location of the stakes and mounds established by the government, was of a con- flicting character, so much so, that the jurors could justify any ver- dict they might render in accordance with their prejudices for or against a resurvey.

The case of Margaret Laura de Stuers vs Alphonso Eugene Lam- bert de Stuers, an action for a divorce, was tried by the court. William Henry Stoddard and William Henry Wilson were attorneys for the plaintiff, and Joseph Lawrence Glover, Alpha Fremont Orr, and David Edward Powers were attorneys for the defendant. It was a great case in all its surroundings. Count William Zborowski, by his constant labor in aid of the plaintiff's cause, added a piquancy to the trial that was relished by the spectators. Here is a list of the names of persons whose testimony was used in the trial of the case: Jeremiah McCraith; William Waldorf Astor; Charles, Count de By- landt; Countess Mary Seilern; Edward Gould Peters; Harriet Thie- mard; Jean Martin Charcot, professor at the Salpitnere Hospital; Arthur Astor Carey; Henry J. Vinkhuysen, physician to H. M., the King of Holland; James Louden, formerly minister of the colonies and governor general of the Netherlands, East Indies; Adrienne Van Riemsdyk: Carel, Baron Van Heeckeren Van Kell, minister of the Netherlands in Portugal; Mathieu Van Lier, consul general of the Netherlands at Paris, France; Charles Ephrussi; Emilie Charles Wauters; Henry de Weede, secretary of the Netherlands at Paris; Mina and Isidore Ansermet; Mary Van den Heuvel; Elise Gahlen- beck; Charles Chevalaz, butler: Charles Auguste Garnier Helde- wier, minister plenipotentiary of the King of the Belgians; Donald James Mackay, eleventh Lord Reay, late governor of Bombay, late member of the Second Chamber of the States-General in the Nether- lands, peer of the United Kingdom of Great Britain; Alexis Delafor and A. Arnaud de Foiard. And still, some people blame Judge Aikens for granting a divorce, when confessedly the parties were tangled up in this mess. It makes one tired to look at the list. The divorce was granted, and soon after-in fact, very soon after-at the Cataract House, in the city of Sioux Falls, Margaret Laura de Stuers and William Eliott Zborowski were united in the holy bonds of mat- rimony by the Rev. John A. Cruzan. The happy couple went abroad and shortly after were engaged in the courts at Paris trying to get possession of Countess Zborowski's daughter by her former mar- riage. It is said that President Lincoln, getting embarrassed in regard to the appointment of a postmaster-there being so many ap- plications, and so many endorsements recommending each candidate -had the papers weighed, and appointed the man whose papers

HISTORY OF MINNEHAHA COUNTY.

weighed the most. Well, the writer is pretty tolerably well conver- sant with the testimony in this case, and has come to the conclusion that the learned judge, in deciding the case, turned the great presi- dent's method bottom-side up, and reversed his measure of proof.

Another divorce suit at this term of court was Pollock vs Pol- lock. It was the bridegroom who came out to South Dakota to grow up with the country, and finally settled down in the Queen City with the full determination to make this his home for life. There is noth- ing on record that shows that he went so far as to purchase a lot in the cemetery, but lots of people never prepare for death. His father was wealthy, but the son was cautious and conservative, and occupied a good deal of his time in sliding down hill, and reflecting upon what great enterprise he would engage in. But lo, the bride cometh! She had with her two little children. She had been a domestic in the family of the bridegroom's father. The claim was desertion, but she followed him to his new home. Mr. Pollock, soon after the trial, not finding an occupation that suited him, returned to his father's house. Mrs. Pollock remained here longer than Mr. Pollock. The divorce was granted. Selah.

On the 7th day of March, an act was passed reducing the num- ber of grand jurors from twenty-three to eight, and as there was no emergency declared this was the first term of court under the new law. This change materially reduced the expense incurred by a session of the grand jury, but the most important feature is the fact, that the work before it can be performed more expeditiously and with better results. It requires five votes in the affirmative to find an indictment.

I. G. Lawshe, N. M. Dahl and H. D. James were admitted to the bar.

Fifth term, April, 1892. Court convened April 26, 1892. F. R. Aikens, judge; D. R. Bailey, state's attorney; John Sundback, sheriff; Albion Thorne, clerk; E. P. White, stenographer. The grand jury was in session until the 11th day of May, having found six indict- ments. Three of the persons indicted plead guilty, the other three plead not guilty and were tried, and the jury found them all guilty. Charles E. Bowman was tried at this term of court for having pro- cured an abortion, from which the victim died. The testimony in the case, although circumstantial, tended strongly to establish the charge as made in the indictment, but under the charge of the court the jury were restricted to finding a verdict of manslaughter. He was found "guilty as charged in the indictment." The code pro- vides, that any person while engaged in committing a felony causes death, without any design to cause death, is guilty of murder, and any person while engaged in the commission of a misdemeanor causes death, is guilty of manslaughter in the first degree. The indictment in this case was designated as an indictment for manslaughter in the first degree, although it charged Bowman with the actual commission of the offense of murder. The verdict being "guilty as charged in the indictment," the court held that Bowman was convicted of mur- der. A motion in arrest of judgment was made by counsel for the defendant, and after the case had been argued by the attorneys on. 7

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History of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources Synopsis of public records, biographical sketches, Part 9

Author: Bailey, Dana Reed, 1833- Publication date: 1899 Publisher: Sioux Falls, Brown & Saenger, ptrs. Number of Pages: 1128

Author: Bailey, Dana Reed, 1833-
Publication date: 1899
Publisher: Sioux Falls, Brown & Saenger, ptrs.
Number of Pages: 1128