DeKalb County, Indiana - The Bench and Bar, 1914

The Bench and Bar

When DeKalb county was organized, the law provided for a probate court, to be known as the Probate Court of DeKalb County. Such court had "original and exclusive jurisdiction in all matters relating to the probate of wills and testaments, granting of letters testamentary, and letters of administration, and of guardianship - the settlement and distribution of decedents' estates, the examination and allowance of the accounts of executors, administrators and guardians," and also "concurrent jurisdiction in all suits at law, or in equity upon all demands or causes of action in favor of or against heirs, executors, administrators, or guardians, and their securities, and representatives when the amount in controversy shall exceed fifty dollars, and in partition of real estate; and the assignment of the widow's dower; and the appointment of a commissioner to make deed on title bond given by deceased obligor ; and to authorize the guardian to sell and convey the real estate of his ward in certain cases." The judge of the probate court was elected by the voters of the county and commissioned by the governor of the state to serve for a term of seven years, and until his successor may be chosen and qualified, if the same shall so long behave well. The clerk of the circuit court and the sheriff of the county served the probate court as clerk and sheriff respectively, and the judge was authorized to call to his aid a jury for the trial of proper cases.

The law provided that "no person shall be either elected, commissioned or appointed such judge of the probate court until he shall first have obtained a certificate from some one of the judges of the supreme court, or some one of the president judges of the circuit courts, that he is qualified to discharge the duties appertaining to said office of probate judge - provided, that such judge of the supreme or circuit court in the examination hereby authorized.

shall have due regard for the legal qualifications of such person; and provided also, that nothing in this section contained shall be construed so as to require any judge of said probate court to be a professional character."

Common Pleas Court

The court was abolished by the Legislature in 1852, and its jurisdiction transferred to the court of common pleas, then established. Lott B. Herrick and John C. Wood at different times were elected and presided as judges of the common pleas court of DeKalb county. The court of common pleas was established by the Legislature of 1852, and our district was composed of the counties of Lagrange, Steuben, DeKalb, Noble and Whitley. At the October election of that year John Morris was chosen judge of the common pleas court for the district, for the term of four years, when Egbert B. Mott was elected as his successor, and served for one term. These judges were both pioneer lawyers of DeKalb county, and brought to the bench rich learning in the law, and high ideals of honor and the business of the court and of the bar. Afterward, William M. Clapp, of Albion, Noble county, was elected judge of this court, and so continued until the court was abolished by the Legislature of i87'3. Its business and jurisdiction were transferred to the circuit court.

Justices Of The Peace

The justices of the peace have had limited jurisdiction in both civil and criminal cases since the organization of the state and county. Their juris" diction in civil cases is confined to the township of their residence, but in criminal cases it is coextensive with the county. The justices of the peace generally have not been versed in the law, and often their educational qualities have been very limited, although DeKalb county has had many of these justices who have been endowed with fine qualities of judgment, and who rarely departed far from right conclusions upon cases brought before them. Of these the writer is reminded of George Beard, an early justice of Franklin township; George Barney, a pioneer justice of Concord township; George W. Maxwell, who served as a justice first in Wilmington township and afterward in Richland. Also Cyrus C. Walter, who acceptably served for many years as justice of the peace in Auburn. These worthy squires, by their wise counsel, assisted in settling many annoying disputes to the advantage of both parties without suit, and when a cause could not be adjusted except by a suit.

Circuit Court

The circuit court has been court of general, civil and criminal jurisdiction since the organization of this state, and since the common pleas court was abolished in 1873. The circuit court has also had exclusive jurisdiction in guardianships and the settlement of the estates of deceased persons.

In the early days of Indiana, when the settlements were small and scattered, there were many counties grouped together in one judicial circuit, and the judge of the circuit rode from one county to another in the judicial circuit, accompanied by the lawyers, and held court in each county seat, until the business was disposed of, and as the inhabitants and wealth of the counties increased, bringing an increase in the business of the courts, the number of circuits was increased, so that fewer counties were included in each circuit, until at this time each of the larger counties of the state comprises a judicial district. DeKalb county has never attained to this distinction, but has always been included with another county or counties in the formation of the judicial circuit. By the act of 1873 the thirty-fifth judicial circuit was made to consist of Noble, DeKalb and Steuben counties, and in 1889 the circuit was again changed, and since has been composed of DeKalb and Steuben counties.

DeKalb county has not always been especially fortunate in the judges of its circuit court, but generally the bench of the court has been occupied by able and honest lawyers, and some of the most distinguished jurists of our state have presided as the regular judges of this court. Until the adoption of the state constitution of 1S52 the circuit court consisted of a president judge of the circuit, who went from county to county with two associate judges elected in the county. The president judge could alone hold the court in the absence of the associate judges, or with either of them, if the other was absent, and in the absence of the president judge the two associate judges could hold the court, except in capital cases and cases in chanceiy.

Circuit Court Judges

The following named president judges occupied the bench of the DeKalb circuit court : Charles Ewing, E. A. McMahon and J. W. Wright. The associate judges were : Ariel Walden, Thomas L. Yates, Samuel Widney, Nelson

Payne, Robert Work, David Martin, Abraham Cope and G. C. Mudgett. Since 1852 the following named men have presided as judge of this court: E. R. Wilson, then living at Bluffton; James Borden, then living at Fort Wayne ; Reuben J. Dawson, then living at Spencerville ; Robert Lowery, then of Goshen, but afterward removed to Fort Wayne, where for many years he presided as judge of the Allen superior court with marked ability, from which he retired to represent this district in the congress of the United States. Hiram S. Tousley, a lawyer of Albion, a kind and able judge, occupied the bench of this court both before and after his service as a soldier in the war of 1 86 1. Others were: James I. Best, then living at Waterloo, who made an excellent judge, but he resigned to return to the bar, where he always enjoyed an extensive practice, and where he was justly rated as one of the best of trial lawyers and an honorable antagonist; Joseph A. Woodhull, of Angola, was appointed to fill the vacancy caused by Judge Best's resignation, and presided acceptably until the next election, when Hiram S. Tousley was elected for the second time, but his health failed and he died in office, and Charles A. McClellan, of Waterloo, was appointed and presided for about one year, until the next election, when R. Wes McBride, then of Waterloo, was elected and made an excellent judge for the term of six years. He afterward removed to Elkhart, where he practiced law for a short time before he became a judge of the supreme court of the state. He is now located at Indianapolis, where he enjoys a large practice, largely in the supreme and appellate courts. Stephen A. Powers, of Angola, was the next judge for a full term. William L. Penfield, of Auburn, was then elected, but resigned during his term, to accept a position as solicitor in the department of state at Washington, D. C. Frank S. Roby, then of Auburn, was appointed to fill the vacancy caused by the resignation of Judge Penfield, and made a good judge until the next election, \\hen Ezra D. Hartman, a good lawyer and a good man, was chosen, but diseases resulting from his army services had broken his health, and he died while in office, and James H. Rose, a capable young lawyer of Auburn, was appointed and made an excellent judge until the next election. Emmet A. Bratton, of Angola, was then chosen, and served for a full term of six years as a most painstaking and conscientious judge. Frank M. Powers, of Angola, was elected to this office in November, 1910, and is still the judge of this court, and is engaging in the discharge of his duties with the same quiet business habits and thorough knowledge of the law which made him a successful lawyer. The business of the court has been badly interfered with by the loss of most of its records in a fire, which on February 8, 19 1 3, destroyed the building in which the court was held.

Early Lawyers

The list of the lawyers of DeKalb county contains the names of many men who have ranked high at the bar and on the bench of this state. Without presuming to give an altogether complete list, the following are remembered by the writer, as the men who have practiced law while living in this county: Egbert B. Mott, of Auburn, also judge of common pleas court; Timothy R. Dickinson, of Auburn, afterward of Waterloo; John Morris, of Auburn, afterward of P'ort Wayne, judge of common pleas court, and afterward supreme court commissioner, a fine lawyer, a great scholar and always a gentleman; Reuben J. Dawson, of Spencerville, judge of circuit court; Abner F. Pinchin, of Hamilton, then at Butler, was district attorney in early days. All of the above named are deceased. William H. Dills, of Auburn, deceased; James B. Morrison, of Auburn, removed west; Guy Plum, of Auburn, deceased; James I. Best, of Waterloo, also judge of circuit court, and supreme court commissioner; Chai'les A. O. McClellan, of Waterloo and Auburn, judge of circuit court, and representative in congress, deceased; Lewis J. Blair, of Waterloo, deceased; James E. Rose, of Auburn, deceased; Edward W. Fosdick, of Butler, deceased; Joseph L. Morelan, of Waterloo, deceased; R. Wes McBride, of Waterloo, judge of circuit court and of supreme court, now at Indianapolis; Ezra D. Hartman, of Auburn, also judge of circuit court, deceased; Charles E. Emanuel, of Auburn, deceased; Price D. West, of Auburn, deceased; William L. Penfield, deceased; James M. Sommers, of Waterloo, deceased; Frank S. Rob)', of Waterloo and Auburn, now of Indianapolis; William T. Bope, of Butler, now at Bad Axe, Michigan; Andrew J. Baxter, of Butler, deceased; Frank C. Baxter, of Auburn, deceased; Edward B. Dunton, of Butler, now in Mississippi; Daniel Y. Husselman, of Waterloo and Auburn, deceased; Hubert E. Hartman, of Auburn, now in Detroit; James H. Rose, of Auburn, now at Fort Wayne; Walter Penfield, now in Washington, D. C.