USA > Texas > Governors who have been, and other public men of Texas > Part 28
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30
After Judge Roberts returned to the Supreme Bench, Mr. Casey went to Tyler to argue a case. He had not been in the Supreme Court for many years, and been but a short distance from home.
He felt it to be obligatory upon him to array himself in a garb suited for the occasion. Among his purchases of garments was a shirt. There were no fashions in shirts before the war, and no
272
GOVERNORS WHO HAVE BEEN
white shirts, or very few, during the war, but a new fashioned shirt had appeared. It was of the kind generally worn now at costume de rigeur social affairs, or to speak, in plain language, worn with a swallow tail coat. It was called the "locust back" shirt.
The bosom was solid and stiff, and what may be called the placket or opening in the shirt was in the back. The Irish bar- rister had never seen a shirt open anywhere else than in the front, so he supposed the opening in that shirt was intended to go that way, so he put it on with the stiff, solid bosom behind, and his back looked like a blackboard.
He had not been careful as to measurement of the neck, so it was several sizes too large. He rose and began to address the court, and his Irish blood got up and he soon became vehement and gesticulated vigorously. His shirt responded by creeping up and rising toward the top of his head. He chewed tobacco and expectorated freely and most of the expectoration fell into the placket. After awhile his shirt rose so threateningly that the Chief Justice said: "Mr. Casey, Mr. Casey, I think your shirt's coming over your head,-over your head." The old Judge wanted to avoid an embarrassing situation. The threatened disaster served to enlighten the eloquent Irishman on the subject of the change of fashion in shirts.
HARDIN HART.
There was at one time a Judge in North Texas, whom I never saw, but have often heard of. He, at times, sat in the District Court at Dallas. He was a Republican, and was appointed Judge, either by E. J. Davis, or perhaps by military power. While, as I infer from what I have heard, he was not much of a lawyer, I have been told he was an honest, conscientious old man. I have no doubt that many now living knew Hardin Hart, for such was his name.
I assume that in his early days he indulged, as many men did, in the diversion of playing the great American game, as I have heard he often used on the bench the metaphors of the poker table.
A friend told me once that on one occasion when Judge Hart was on the bench in Dallas a well known lawyer, who I believe is still living, and who is called by his familiar friends "Bob," had a case he professed to be anxious to try. On the opposing side, as counsel, was another well-known lawyer, by the name, I think, of Sneed, who said he was not ready for trial, and asked "Bob" to consent to a continuance, but "Bob" refused. He then appealed to the court, but no statutory grounds were presented, and the court refused his continuance.
"Very well," said Mr. Sneed, "I will go to trial." Thereupon
273
AND OTHER PUBLIC MEN OF TEXAS
"Bob" expressed a willingness that the case go over, but Mr. Sneed said, "No, you have been horsing for a trial, and you shall have it," and then "Bob" appealed to the Judge.
The old Judge said, ""'Bob,' you bluffed, and bluffed, and bluffed, like you had a full hand, but when Sneed crope up behind you thar you sot behind two deuces. Now you jest go to trial."
In one of the large towns of the district, Sherman, I believe, two men were on trial for murder, committed for the purpose of robbery, and they secured about $8,000.00.
The evidence was largely, if not wholly, circumstantial, and the State had put on all its testimony (which was very strong), except that of identifying the money. The cashier, or teller, of the bank had kept for some reason the serial number of the bills, paid to the murdered man, and a lot of money was captured on the per- sons of the defendants when they were arrested. The teller, or cashier, took the stand and read the numbers of the several bills, and the District Attorney would produce a corresponding bill from the bundle of captured money. It was deadly evidence, and when every bill had been identified, the old Judge, who had been watching the proceedings with undivided attention, drew a long sigh and said to the District Attorney: "Cowles, you already had two par, now you've got a full."
If any reader of this humble volume does not understand the metaphor used by the old Judge, he may be able to find some Texas lawyer who practiced in the early days in Texas, for in that day the knowledge of poker was part of the legal curriculum. I have heard it said that somewhere about 1846 a young man was being examined for admission to the bar, and he was asked only the following questions: "Can you shoot a six-shooter?" "Can you swim a horse across a swollen creek?" "Can you play poker?" He answered every question in the affirmative and the chairman of the examining committee said: "You are qualified for a lawyer in Texas and we will so report," and they did. That young man became, in after years, one of the ablest lawyers of the bar of Texas, and one of the few Texas law writers-Hon. John Sayles.
SAM HOUSTON GRANTS A PARDON.
A most amusing incident occurred about 1861 which, while it did not occur in a court room, had direct relation to court pro- cedure.
Some time before the Civil War a woman was convicted of murder in Houston and given six years imprisonment in the penitentiary.
Hon. J. W. Henderson defended her. He was a dark, swarthy man and was called by many "Smoky Jim." He was, too, called "Governor" Henderson, because he was for awhile Governor of
274
GOVERNORS WHO HAVE BEEN
Texas by constitutional succession in some way, but exactly how I do not now recall, and it is not necessary to the story to know.
He came to Austin to try to get Governor Houston to pardon Mrs. Monroe. He, no doubt, timed his visit to correspond with the meeting of the secession convention, which was in session upstairs, while Governor Houston's office was downstairs.
Sanı Houston's prejudice (or perhaps a better word is "con- viction") against secession was very strong, and his dislike of all secessionists intense.
The Governor received his old friend very cordially, and with the deliberation and clear enunciation which characterized his speech, said : "Well-Henderson-what-can-I-do-for-you- my-friend?"
Whereupon the following conversation occurred: "Governor, I want you to pardon Mrs. Monroe." "Why should I pardon her, Henderson?" "Oh, she's a woman and she's been there long enough." "Well, wasn't she fairly tried?" "Oh, yes, I've no com- plaint to make on that score." "What Judge tried her, Hender- son?" "Peter W. Gray." "No better Judge in this State or out of it, Henderson." "I agree with you, Governor." "You defended her, Henderson?" "Yes, I represented her." "Then it goes without saying that she was well defended, Henderson." "I did the best I could." "And she was convicted, Henderson." "Yes, and given six years." "And she appealed, and the conviction was affirmed, Henderson? Am I right?" Henderson had, with consummate finesse led the old Governor up to the point where he meant to strike a winning blow, and he answered, "Yes, Governor, and it is fair to say that the opinion affirming the judgment was the ablest ever written by Judge Roberts."
In an instant the old Governor straightened up in his chair, and said with fervor and fire, "Roberts? Roberts? Oran Milo Roberts, that fellow who is presiding over that mob upstairs?" "The same, Governor."
"Then, Henderson, so help me God, I'll pardon the woman. No citizen, however humble or lowly, shall be deprived of life or liberty by the decree of any such as fellow as that," and he pardoned her forthwith. She lived in Houston for many years afterwards, and her name appears often in real estate transfers.
That incident had both its amusing and its serious side. It illustrates the ingenuity of a lawyer and his knowledge of human nature, but it also forcibly illustrates how high the tide of passion and political prejudice had risen in those stormy days.
Sam Houston and Oran M. Roberts have long since joined "the innumerable caravan that is moving on to the endless realms of shade," and all men know now, that they were patriots who loved their country, and strove for the right, as God gave them to see the right, and for their actions in those days both can answer
275
AND OTHER PUBLIC MEN OF TEXAS
with a clear conscience in that day of final reckoning when "God will sift out the hearts of men before His judgment seat."
A UNIQUE GROUND FOR DELAY OF A TRIAL.
When I was on the bench in Trinity County, I at one term of the court finished all the important business about Monday of the third week, and announced that I should close the court about Tuesday.
There was a lawyer, a resident of the county, who had prac- ticed at that bar for 40 years or more, and who, though nearly four-score years old, was marvelously preserved, and with all a practical joker, but possessed a great fund of shrewdness and common sense.
He urged me not to go home, saying he had a divorce case of great importance that for various reasons he could not try before Friday.
As I always held to the view, and do yet, that a judge is a hired man of the people, and should consider first the convenience of the attorneys who represent the people, rather than his own, I stayed.
The testimony revealed that the defendant was a rather comely matron on the sunny side of life who had, dropping into the vernacular of the present day, "gone on a strike" and breached in part at least the connubial contract. There was no allegation or evidence that she was treading the "primrose path of dalli- ance," nor that she had barred the door of the home against her liege lord, nor had she forsaken the family board, nor compelled him to do so, but the rest of the contract, which was a matter of conclusive implication, she had violated, and repudiated, and persistently continued so to do, to the plaintiff's great depriva- tion, disappointment, and discomfort, and mental and physical distress. The proof was clear, and the earnest plea of the ill- treated plaintiff was granted.
When the case was over I said to the attorney: "What made you hold me here for three days to try a case which has been disposed of in ten minutes ?"
He drew up one corner of his mouth, turned his head on one side, and winked his eye, and said with great deliberation: "I- know-when-to-try-a-case. A-heap-depends-on-when- some-kinds-of-cases-are-tried. If-I-had - put -that- fellow-on-the-stand- when - you -first-got-here-three --- weeks-ago-you-wouldn't-have-thought - much -of-his- case,-but-I- knowed - that - when -you-had-stayed-in --- these- piney - woods -three-weeks-you'd-think-he-was- the-cruelest-treated-man- you- ever - heerd -of-and-I- waited-for-the-right-time."
The reason given for the delay, while unique, was both ingenious and philosophical; as I was obliged to admit.
276
GOVERNORS WHO HAVE BEEN
CHAPTER XXXVI.
MEMORIES OF THE BENCH ON THE CIRCUIT.
In the Twelfth District, Frank M. Etheridge, then of Fairfield and later of Corsicana and now of Dallas, practiced before me, and the promise he gave then as a lawyer has been greatly to my pleasure abundantly fulfilled.
He recovered a verdict in a personal injury action which, on a very close point, was reversed.
I said to him one day just before another trial: "Etheridge, have you amended your pleading?" "You bet, and I have done better than that. I have amended my proof," which he had done, of course, in a perfectly legitimate way. He won again, and the judgment was affirmed.
He announced ready for trial one day in a personal injury action, whereupon one of the local counsel for the road, with great deliberation, and I might say solemnity, rose to move a continuance.
He was what that original genius, Major Phil Claiborne, would have called a very "preponderous" kind of a man-one of the kind that could invest the taking of a judgment by default on a promissory note with more dignity and solemnity than was displayed by John Marshall when he rendered the opinion in Gibbons vs. Ogden.
He assured the court of his great anxiety to try, but deeply regretted to say that the papers had, in some way, been mislaid,- which made trial impossible.
Etheridge rose just at that juncture, and in that penetrating voice which will forever exclude him from operatic honors, said : "May it please the court I got tired of riding thirty-five miles across these sand hills only to find out, that when I was ready to try cases the papers were always out of pocket, so I carried every paper in every civil case I have in this court home with me, and had copies made and I have them here, and reaching down under the table he took up a box holding a half bushel, more or less, and taking out a bulky package said: "Here, sir, is a complete and accurate copy of every paper in this case." I said: "Go to trial, gentlemen." The "lost" papers somehow were soon found.
From time immemorial lawyers on the circuit have played poker. They play most often for diversion,-rarely for gain.
They played in the sand hills when I was on the bench, but in every instance but one that I recall, played for petty stakes, and without liquor, or beer, or profanity, or vulgarity.
One night two elderly lawyers, non-residents, came into my room. They were on opposing sides in a case of very consider- able magnitude, and each had a package of papers under his arm. I said: "See here, I want you gentlemen to be ready to try that
277
AND OTHER PUBLIC MEN OF TEXAS
case tomorrow, and if you get to playing poker you will not be ready." They said: "Oh, we will play a while then go to work on that case." When midnight came they were still playing a five-cent limit game.
Another night a lot of lawyers and some laymen opened a game when I had gone to bed. One of the party was a man over seventy, and another not much younger. In the course of one hand only those two stayed. That game was the only one I ever saw on the circuit that was played for more than amusement. The two were old friends, and had played together many times in days gone by.
The younger bet $2.50. The older sat leaning against my bed. He had the ace of spades and the nine of spades and nine of clubs. He says: "I'll stay," and put up his money. He drew two cards and caught another ace and another nine. Some who read this may know what the draw made his hand. The other man drew two cards. The old fellow said: "Bet out." The younger bet $2.50. The old man raised him $5.00. The younger said: "May I borrow from somebody? I have no more money with me." The old fellow said: "Yes, get all you want." I reached up to my vest, which was hanging on the head of my bed, and took out a roll containing a hundred dollars, and tossed it to the younger man, who was a lawyer, the old man was not, and said: "Help yourself, Captain." He called the raise. When the show down came the following colloquy took place across the table. The old man said: "What yer got?" "Two pair." "No good, I got a full house." "Yes, but my two pair are both tens." "Lem'me see 'em." The hand was laid on the table. "All right, take the money, but I'm thinkin' you got that last one from under your leg." "Now, see here, don't talk that way. You played poker with me thirty years ago, and you know I play a square game." "Yes, I did play with you thirty years ago, and you'd a done it then, and I hain't heerd 'bout yer reformin' nary time sence."
My friend, Tom Ball, was standing by, but preparing to go to bed, as neither he nor I took any part in the game, but he re- members it, not so much for the reason that two such hands were out, and the larger was so badly played, as because I had as much as a hundred dollars at one time. I am inclined to think myself that the latter fact was the more remarkable of the two.
I wanted to see the sheriff and an attorney one night, but neither could be found. Somebody suggested where they might be found. It was growing late, but I went to a private bedroom in the hotel, and both men I wanted to see, and the County Attor- ney, and the foreman of the grand jury and others, were play- ing poker.
When the time came for the County Attorney to deal he said
278
GOVERNORS WHO HAVE BEEN
he was obliged to go home, thirteen miles away, in order to be on hand to open Sunday School, of which he was Superintendent, next morning, so he did not deal, but laid on the bed and shuf- fled a deck of cards. When the deal reached him again he dealt out six hands. I saw all five of the other men begin to fumble with their chips. The first man who bet, was raised, as were the rest, until the bet got to the Superintendent, and he raised them all. When the show down came there were marvelous hands out, but the sixth hand, the Superintendent's, was the best of all of them. It was a petty game, but the aggregate of the "pot" was substantial. Frank Etheridge said: "All right, take the money, but I have learned a lesson. I play with sinners hereafter. No more Sunday School Superintendents for me in a poker game."
There is no mental strain so intense as that brought about by the work of a lawyer in trying cases, and it is not surprising that so many find relief from it in the diversion of poker.
THE JUNIORS BEAT THEIR SENIOR.
The firm of which that able lawyer and judge, Hon. Waltus H. Gill, is the senior member, brought two suits before me ten years or more ago, growing out of the same alleged breach of duty by the S. W. T. & T. Company.
One plaintiff was a lady, the other her brother-in-law, really suing on behalf of his wife.
The Judge very generously turned over the lady's case to two young members of his firm, or at least to two young men who were in his office, John C. Townes, Jr., and Hugh Lamar Stone, Jr. The former is the son of that able lawyer and Christian gentleman, Hon. John C. Townes, at one time Judge of the Austin District, later head of the firm of Fisher & Townes of Austin, and for many years past, and now, a most efficient teacher of law in the University of Texas, and to whom the bar of Texas is debtor for his most helpful work on pleading, and for perhaps other treatises on legal subjects.
The latter is the son of H. L. Stone, who has been for many years a member of the Corsicana bar. Both were, in a sense, be- ginners in the law, and fresh from the University of Texas, and were, as has been every graduate of that institution who has ever appeared before me, thoroughly prepared to practice law.
I have had many graduates of that institution before me, and I have never yet seen one who, if he was naturally endowed with enough mental equipment to justify the hope that he would ever be a lawyer, did not "make good" in his profession.
That fact has given me peculiar pleasure and pride, because as far back as 1858, my father, as Chairman of the Committee on Education in the Lower House of the Legislature, championed
279
AND OTHER PUBLIC MEN OF TEXAS
the cause of a University, and was in 1866 appointed by Governor Throckmorton a regent (then called administrator) of that in- stitution.
Hugh Lamar Stone holds now a very responsible position in the legal department of one of the greatest oil companies in the United States.
I have had the experience in the recent past of being most artistically "done up" by him, both in the trial and appellate courts. I assume Judge Gill thought that the young men could present a stronger appeal with a young lady for a client.
They tried their case first and secured a verdict for $1,500.00. On hearing the motion for a new trial I suggested that I thought a remittitur of one-half would be proper.
They plead almost pathetically that I should not require them to remit, and evidently had less in mind the money consideration, thail the fear that Judge Gill might recover a larger verdict than they did.
I told them the case was a hard one on the defendant, for though it was legally liable yet it was in an actual sense without fault, since its agent at the point called, without warning, aban- doned his post and the company's service without notice. The very efficient and very suave representative of the defendant, John Charles Harris, failed not to set up, so to speak, all the equities of the situation.
Though the plaintiff was a most worthy young lady and a neighbor of mine, and I was, as I still am, fond of both young men, I was inexorable and required the remittitur, and on appeal the court trimmed it $250.00 more, so the judgment finally paid was $500.00.
Judge Gill recovered only $200.00, so the ambition of the two "kid" members of the firm was realized.
When Judge Gill brought in his motion for a new trial he said: "Your honor, I have filed my motion for a new trial in the Tele- phone Company case. I don't expect you to grant it, because if I were in your place I would not do so."
There has been more folly perpetrated, and more money lost through imprudent and unwise urging of motions for new trials than in any other way relating to court procedure.
A few years ago a verdict for something over $5,000.00 was rendered against a client of mine,-a corporation.
I saw that in the last analysis it was a question of fact, and advised the managing head of the company to pay the judgment. He said, "No," he sometimes played poker and believed in chances, so he would chance it. A new trial was granted. The next time the "chance" cost the defendant an increase of $6,000.00.
A very capable lawyer filed a motion for a new trial before me in a personal damage suit in which the verdict was $8,000.00.
280
GOVERNORS WHO HAVE BEEN
Had the pages been pasted end to end, it would have been ten feet long, and every paragraph began "the court erred."
It seems impossible that I could have erred that many times in one case. The motion reminded me of an old fellow I knew when I was a boy, and till I became judge. He was a great talker, but one day he was introduced by a friend to another old man who could outtalk him.
Disgusted, he went back to the friend who had made the intro- duction and said: "That man you introduced me to is the biggest liar I ever heard."
The friend said: "I don't think so. Why do you say so?"
"He's bound to be. There ain't enough truth in the world for all he says to be so."
It seemed to me there could not possibly be as much error extant, as the attorney alleged I committed in one charge.
My confidence in the attorney, and my knowledge of his ability, led me to believe I must have erred, so I granted the motion.
When I came down from the bench he said: "Dog-gone it, what did you grant my motion for?" I said: "Because you alleged I had committed forty errors, more or less, and if I had committed one-tenth of them you were entitled to a new trial. If you were bluffing, I called your hand."
The verdict next time was $16,000.00, and it was affirmed, so a motion most elaborate and specific, which the movant did not really want granted, cost his client $8,000.00.
The best lawyer is the one who knows when to quit, but the attorney in that case was, and is, a first-class lawyer. He simply played his hand too far, and others have made the same mistake.
281
AND OTHER PUBLIC MEN OF TEXAS
CHAPTER XXXVII.
THE TRIAL COURT AND THE UPPER COURT.
I have heard judges say that they paid no attention to the upper courts, and were indifferent whether their judgments were affirmed or not, and have heard them complain at what they conceived were erroneous reversals.
When a judge has done the best he could, he may dismiss the case from his mind and refuse to worry, but I am slow to believe that there is any judge who does not examine with great interest the reports of proceedings of the upper courts. I am sure I did. I felt certain at times that the intermediate courts were wrong, and I was right, and when that opinion was vindicated I was much pleased.
In an important contested will case I peremptorily instructed the jury to find against the will. I do not believe very strongly in the "some evidence" or "scintilla of evidence" theory. I felt so sure that the will was not made by a man possessed of testa- mentary capacity, that I told the jury to so find.
The Court of Civil Appeals wrote a long opinion, which, when boiled down meant the case should have gone to the jury. I, of course, deferred in duty bound to that opinion, and on a second trial the jury found against the will, and so obviously proper was the verdict that no new trial was asked for, though an estate of over $60,000.00 was involved, so I was right on the first trial.
The case of Dorchester vs. Merchants National Bank, 163 S. W., p. 5, presented for the first time in Texas the question, whether the drawer of a check upon a bank in which the drawer had funds sufficient to meet the check, was bound by presentation of the check through the Clearing House, when it could have been presented a day earlier by the payee, whereas by the delay of the Clearing House the bank closed its doors and failed before the check reached it. There was no dispute as to the facts.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.