Delaware County, Indiana - Chapter 8: The Courts: Bench and Bar, 1908

The day following the approval of the act organizing Delaware county another law received the signature of the governor, by which "the county of Delaware shall be, and the same is, hereby attached to the county of Randolph, for judicial purposes, any law to the contrary notwithstanding." It is highly creditable to American civilization, even in face of the apparent lawlessness of the western mining camps and cattle ranges, that means to secure the operation of regular justice have been instituted almost at the same time with the establishment of the community itself. It seems that the instinct for law and order began to operate as soon as a few settlers came together and found themselves outside the jurisdiction of organized counties.

Delaware county had settlers for seven years before organization of civil government. The legislature had seen to it that the jurisdiction of the courts should be extended over the territory acquired by the Indian treaty, and to that end had provided that the unorganized country should be attached for all judicial purposes to the organized county next adjacent. It is likely that causes arose among the first settlers that called for judicial determination. The litigants must have gone to Winchester or some neighboring county seat to obtain a court hearing, or in case of criminal action it is probable that the sheriff of Randolph county rode over with a warrant and, arresting the offender, took him back to Winchester to await trial.

A clause of the organic act provided that all suits and cases, originating within the limits of the county, and which had been begun before the organization of the county, should be continued to final settlement as though the formation of civil government had not taken place. What cases there were in this county before its organization, and any account of them cannot be presented at this time.

But with the organization of the county a complete judicial machinery was provided. The first judicial district to which Delaware county was attached covered a goodly share of the state's area, extending to the north line. In 1833 Delaware county was a part of the sixth circuit, the other counties being Randolph, Wayne, Union, Fayette, Rush. Henry, Grant. By an act approved January 28, 1839, the eleventh judicial circuit was formed, consisting of Delaware, Grant, Blackford, Wells, Adams, Jay and Randolph. Two associate judges were elected in April, 1827, John Rccs -i:d Lewis Rccs, and with the president judge of the district, Miles C. Lgglcston, the circuit court of Delaware county was complete. Its first session was held May 19, 1828. Gilhert's house was the court room, and it is probable that on that bright spring day the spectators, jurymen and ,,;hers interested were unable to crowd into the court room and stood around by the door or leaned over the log window-sill, intent to hear all the proceedings of this first court in the new county. For many years court sessions were among the big events of the year. The arrival of the judge created much excitement, and among the children he must have been regarded with the awe due a mighty potentate. Accompanying the judge ,,n his rounds of the circuit were the lawyers. The practice in one locality was very small, and had the lawyer depended on that alone he would have faced starvation even sooner than the traditions of the profession guarantee. Therefore, the attorneys followed the peregrinations of the court, and in the larger circuits this meant traveling over a number of counties. They rode to the county seat on horseback, with their briefs and copy of statutes in their saddlebags, and putting up at the town tavern they increased the social activity of the county seat and along with their serious business added a gayety that no other occasions of the year could produce.

After Judge Egglcston had called court to order on that day in May, iSjS. the sheriff produced the panel of grand jurors, who he had summoned for that term. Familiar names are in that list. They were as follows:

The grand jury returned one indictment, against John Downing for assault and battery. The latter pleaded guilty, and was fined one dollar. The regular prosecutor was Cyrus Finch, from Randolph county, but in his absence Septimus Smith was appointed and received five dollars for his services. The two associate judges each received two dollars, and the bailiff, Joab Vestal, got one dollar. The business of the court was all completed in one day and then adjourned until "court in course."

One of the lawyers, in fact, the first one to be admitted to practice at this term of court, was Charles II. Test. Three years later he was elected president judge of the judicial circuit, comprising a considerable part of die state, reaching almost from the Ohio to the northern boundary line, and his subsequent career placed him among the leaders of the Indiana bar. The only other applicant to be admitted to practice was James Rariden.

The dockets of the circuit courts in those days were not crowded with cases that must be hastened to settlement. Indeed, the course of justice might have proceeded very leisurely and no great wrong would have been done to anyone. When the second term of court came around, in November, 1828, only one associate judge was found to be present on the opening day; court adjourned. Next day none of the judges were present, and Sheriff Nolin declared court adjourned till the following day. That day came, and still no judges. In pursuance of the law, the sheriff then adjourned court till the next term. We can imagine the sheriff, assuming all the dignity of his position, spoke in loud tones the legal formula prescribed for the occasion, and thus impressed the few who had assembled about the court room with the full solemnity of the occasion.

When court convened in May, 1829, four applicants were present desiring admission to the bar, which was granted. They were: Martin M. Ray, Calvin Fletcher, Hiram Brown and Oliver H. Smith. The first named was prosecuting attorney for the third judicial circuit, which then comprised this countv, and it fell to him to prosecute the case of assault and battery against James Liston. This was the first jury trial in the county, and the verdict was "not guilty."

Another incident of this session was told by Minus Turner, being reported in the History of 1881, as follows: "The grand jury held its session in the blacksmith shop on Walnut street, owned by David Baggs, the present (1881) site of the Episcopal church. The petit jury met under a buckeye tree which stood on the northwest corner of the public square. This tree was a very fine one. It had a large grapevine on it, which, with the tree's foliage, afforded a very good shade. I remember quite well, when the grand jury convened in the old blacksmith shop, that I climbed up in the loft and saw one of the jurymen creep out between the logs and go over into the hazel brush and purchase some whiskey of a fellow who was selling it there. He then crept back again, and soon became very noisy and unmanageable. His case was reported to the judge and he was fined ten dollars. Then he pulled out a long leathern sack, made, perhaps, of buckskin, which had all kinds of silver money it. It broke, and the money spilled out on the floor. He told them to take what they wanted and hand the rest back. He was a very peculiar man, and when under the influence of liquor he did not care what he said or did. His name was James Jackson, and he was familiarly known as 'Devil Jim.' He went into the Gilbert bar room, after being fined, purchased a glass of whiskey, and chewed the glass up between his teeth. I remember seeing him - chewing and damning, with his mouth bleeding."

Probate Court. The associate judges of the circuit court by virtue of their office transacted all the probate business of the county without the formal organization of a probate court until 1830. In March of that year these associate judges constituted and held the first session of the probate court. At the first session of the circuit court, above described, the pioneer William Blount had been appointed guardian for his daughter's child, William Blount Jones. . At the first regular session of the probate court the only business was the appointment of Joseph Bennett as guardian of the infant heirs of Catherine Bennett, deceased. In 1834 the associate judges ceased to act, ex-officio, as probate judges, and on the 10th of November John Tomlinson became first regular probate judge. He held the office ten years, being succeeded by Enoch Nation. Samuel W. Harlan became judge of probate in 1852, and in the same year the court was abolished and its jurisdiction transferred to the court of common pleas. Only the older generation in Delaware county know anything of any of these courts. The court of common pleas, which also had some civil jurisdiction, was abolished in 1873, and since that year probate business has been a branch of the circuit court. During the existence of the court of common picas it had but three incumbents - Judges Walter March, J. H. Haynes and J. J. Cheeney, the last being in office when the court was abolished.

Of the attorneys who, at the various early sessions of the circuit court, were admitted to practice in Delaware county, but few maintained a regular office at Muncie or in the county, the reasons for this having already been referred to. The list of lawyers who in the course of eighty years have been admitted to practice in the county presents a notable array - representing every phase of legal ability and some of the finest types of lawyers known in the history of the Indiana bar. The claim has often been advanced, with much reason to support it, that outside of Indianapolis no county in the state has better reason to be proud of its bar, past and present, than Delaware.

The two attorneys who were granted permission to practice at the first session of the court, in May, 1828, had already achieved considerable success and later rose to prominence. Charles H. Test, son of an Indiana circuit judge during 1817-19, had begun the practice of law at Lawrenceburg in 1821 and during subsequent years practiced in many counties of the state. For a number of years subsequent to 1838 he resided in Wayne county, and finally removed to Indianapolis. He was secretary of state from 1849 to l&53- He lived to an advanced age. James Rariden, the second member of the Delaware county bar, was a native of Kentucky, and studied law in Wayne county during the second decade of the century. He resided in Wayne county until his death in 1856, though practicing in the courts of the surrounding counties. He was a man of sturdy character, self-molded, genuine but with little polish, and though his education was limited his opinion was sought as frequently as that of a more brilliant man. He was a strong Whig, and was an able member of the constitutional convention of 1850.

The prosecuting attorney of the circuit at the time Delaware county was organized was Cyrus Finch, and it will be remembered that he was absent from the first session of court and Septimus Smith was appointed prosecutor. Death detained him from his duties at this time, for his health had begun to fail in 1826, and he died in January, 1828.

Septimus Smith was a brother of Oliver H. Smith, so prominent in the history of Delaware county. He and Cyrus Finch, both talented lawyers, had founded the Western Times at Centerville, Wayne county, about 1827, and their editorials obtained more than local recognition. Smith died of consumption during the twenties.

Following Cyrus Finch as prosecutor for the circuit came Martin M. Ray, who was admitted to practice in this county in May, 1829. He had located for practice in Wayne county that year, and continued practice there until 1845, when he moved to Indianapolis and lived till his death in 1869. A native of Kentucky, he had come to Indiana shortly after its admission to the Union, and before taking up the practice of law followed the vocations of cabinet-maker, merchant and banker. He was a brother of J. B. Ray, who was governor of Indiana at the time Delaware county was organized.

The career of Oliver H. Smith, who was admitted to practice at the November session in 1829, has touched Delaware county more intimately in other ways than in the law. It is only necessary to state here that he had practiced law in Indiana since 1820. His "Reminiscences of Early Indiana Trials and Sketches" (1858) is valuable for its numerous descriptions of the early courts and the anecdotes and characterizations of the prominent lawyers of the state during the first half of the century.

John S. Newman was another Wayne county lawyer who followed the circuit judge in his rounds and occasionally took a case in Muncie. He had lived in Wayne county from 1807, was admitted to the bar there in 1828. continued in active practice until i860, and from then until his death in 1882 lived in Indianapolis, where he was president of the Merchants National Bank.

At the time he presented his application to practice in Delaware county, Caleb B. Smith was a resident of Connersville. He was among the foremost of Indiana's early lawyers, and having the gift of eloquence he rose

In the copy of the Muncictonian, for July 15, 1837, several law vers arc among the advertisers. None of those who have been mentioned ever located in Muncic, but at the time of the al>ove publication there were several offices near the public square where the public could consult with one learned in the law. Those advertising as lawyers under that date were: Thomas C. Anthony, with "office on Main street near the tan yard"; Joseph Anthony, residing "between Miller's tan yard and Exchange Hotel"; \V. G. Renncr, office "on Main street, nearly opposite clerk's office"; and Andrew Kennedy, in "Willard's brick building," corner Main and Walnut. These probably were the only lawyers residing in Muncie, but one of the best known and brightest attorneys practicing in this and neighboring courts at that time was David Kilgore, whose home was in Yorktown. Born in Harrison county, Kentucky, April 3, 1804, David Kilgore accompanied the family to Franklin county, Indiana, in 1819, and soon turned his attention to the study of the law. In April, 1830, he arrived in Delaware county, after a weary tramp across the country, carrying four law books. He taught one of the first schools in Mt. Pleasant township, bought a tract of wild land, and at the same time began practicing law. To supplement his share of the meager practice then offered in this county, he was admitted to the Henry county bar in 1832 and also probably practiced in other counties of the circuit. He was pre-eminent as a trial lawyer. His rise to prominence was rapid. In 1S32 he entered the legislature as a Whig, and in 1856, just after the organization of the Republican party, he was elected speaker of the house. He was the first circuit judge to come from Delaware county. His circuit, when he was elected in 1S39, comprised the counties of Randolph, Delaware. Grant, Jay, Blackford, Madison, Wells and Adams. After representing this county in the constitutional convention of 185 1, he went to the legislature in 1855, and from there to Congress, where he was a member of the house during the years just preceding the outbreak of the war. Always successful in his profession, and acquiring a large estate, he is honored especially for his prominence in public affairs. He was best known as "Judge Kilgore," and his record on the bench during the flourishing days of the big circuit was in keeping with his achievements at a more mature period. He died suddenly, January 23' '8/9. leaving a number of descendants in Delaware county.

Joseph Anthony served as circuit judge during 1853-58. Though .1 lawyer by profession, he was best known to the people of Muncie for many years as proprietor of the tavern that once stood where the Kirby House is now, and was called, part of the time at least, the Eastern Hotel. It was a two-story frame structure, and was not removed until the present

T. C. Anthony is remembered as a brilliant man, an orator with natural eloquence, refined by classic learning. He practiced a few years in Muncie, but never acquired great prominence.

Only a few of the early lawyers were college-trained men. Most of them educated themselves, reading law in the office of an attorney who had already advanced to some success in practice. Probably no lawyer in Delaware county during the first two decades of its history was more influential than Andrew Kennedy, and yet he had little training for his profession and only took it up after he had tried the two occupations of fanning and blacksmithing. Born at Dayton, Ohio, in 1810, he spent most of his youth on a farm, receiving a meager education, and without showing any decided bent in life. Finally, at Conncrsville, where he was living with a Quaker aunt, he began the reading of law under the instruction of Caleb B. Smith and Samuel Parker, and was admitted to practice in 1830 and soon after came to Muncie. Besides a successful practice, according to the standards of the time and place, he became prominent in politics. He became state representative in 1835, state senator in 1838; in 1841 was the only Democrat elected from Indiana to Congress, and in 1847 was the nominee of his party (which was then dominant in the state) for United States senator. But in the smallpox scourge which caused an almost precipitate adjournment of the legislature Mr. Kennedy fell a victim, and died December 31, 1847, before the assembly had taken up his election. He had two sons, both born in Muncie. Evender C. was a brilliant soldier, later became a physician, and was noted for his literary productions. Philip A. B. Kennedy also served in the Civil war, and then followed his father's profession, finding success in practice and becoming well known in public life. Andrew Kennedy's daughter married Dr. Milton James, late of Muncie.

Among other lawyers admitted to practice in the county but who did not have residence, was Jehu T. Elliott, one of Henry county's ablest lawyers. He was admitted to the bar in 1834 and from that time until his death in 1876 held numerous positions of honor and trust, serving as circuit judge from 1854 to 1864, and in the latter year was elevated to the supreme bench of the state. Altogether, he served eighteen years as circuit judge and six years on the supreme bench.

In September, 1839, Jacob B. Julian was admitted to practice in this county. He had been born in Wayne county in 1815, being left an orphan at an early age, had gained a good education by persistent effort, and at the age of twenty-four was admitted to the bar. He lived in Muncie but eight months, and after his return to Wayne county soon took rank as i leading lawyer. He was president of a bank at Ccntcrville, and after moving to Indianapolis became judge of the circuit court. His younger brother, George W. Julian, was one of the most distinguished lawyers and. political leaders that Indiana produced.

Walter March for a number of years before his death ranked as the oldest member of the Delaware county bar. He honored his position as dean by brilliant ability, a career notable by its achievements in practice and in public affairs, and a most wholesome and distinguished personal character. His fellow members of the bar, at the time of his death, voiced their appreciation of his life in resolutions from which the following scntrnccs indicate his standing in his profession: "His was a positive character. . . . His opinions were his own. ... As an advocate one of his chief characteristics was force and strength in argument and illustration. ... As counselor he was careful, discreet and thoroughly trustworthy. Industrious, pertinacious, energetic and thorough, he well earned the distinction he achieved as a lawyer." He had been admitted to the bar at the March term of the Delaware district court in 184 1, and continued in active practice until his death, March 31, 1883. In the constitutional convention of 185 1 he was senatorial delegate, and soon afterward became first judge of the newly established court of common picas. He served in the legislature, and had a large practice in all the courts. In the constitutional convention he took a chief part in simplifying the civil code, and as one of the ablest lawyers of Indiana he impressed his learning enduringly on the fundamental laws of the state.

Joseph S. Buckles, who was one of the leaders of the Democratic party in this county and who edited the Delaware County Democrat for a time in 1844, came to Muncic during the thirties, while Andrew Kennedy was ode of the few lawyers then located here. He studied law in the latter's office, and was admitted to practice in 1841. Soon after resigning the editorship of the Democrat he was elected prosecuting attorney, and from 1849 *° I&53 represented his district in the state senate. In 1859 he became judge of the eleventh judicial circuit, and continued on the bench two terms. He resumed practice in 1S70, in partnership with John YV. Ryan, who had just been admitted. He was strong as an advocate and was a natural lawyer, effective in presentation of arguments. Possessed of a tenacious memory, he absorbed knowledge without the industrious application to books demanded of others.

William Brotherton, whose death occurred irl Muricie July ii, 1888, was a Virginian by birth, and was admitted to the bar in Xenia, Ohio, in 185 1, at the age of twenty-five. He came to Muncie and Was admitted to practice in the same year, in 1855 being elected prosecuting attorney. He served in the legislature, and as a lawyer he took high rank in the county.

Thomas J. Blount, who died September 29, 1890, while still a young man, was admitted to the bar April 29, 1873. Though he had only a common school education, he began a career of much promise. An injury received early in life brought misfortune to him when he was in his prime, and he died respected by bench and bar and the entire county.

Thomas J. Sample was one of the attorneys named in the "Indiana Annual Register and Pocket Manual" for 1845 as residing in this countv, the other names appearing alongside of his being: A. Kennedy, Walter March, Levi L. Hunter, J. S. Buckles, Joseph Anthony, John Marshall, James H. Swaar, Warren Stewart, W. H. Withers, Joseph Underwood, J. H. Mellett, William Brady, J. H. Hayncs, S. W. Harlan. Judge Sample, as he was best known, was a dative of Maryland, lived for some years in Conncrsville and then in Yorktown, this county, where he was a merchant with O. H. Smith, and while selling goods took up the study of law. Admitted to the bar in 1842, he came to Muncic in 1843, an<^ was engaged in practice for many years.

In the death of Carlton E. Shipley, July 31, 1905, the Delaware county bar lost its oldest member, he having been admitted to the bar fifty-three years previous to his demise. He had lived in Muncie with brief exceptions since 1843, had been a clerk and school teacher, read law with J. S. Buckles, was one of the early district attorneys of the common pleas district, and besides practicing law with a success merited by his active and comprehensive learning, he often took part in enterprises that have become important in the county's welfare.

February 5, 1902, occurred the death of Judge Orlando J. Lotz, aged fifty-one years. His service on the circuit and appellate bench marks him as one of the most distinguished jurists of the Delaware county bar. He was the first judge of the forty-sixth judicial circuit, serving from March, 1885, until 1892, when he was elected to the appellate court, a position he adorned until his death. His rank in his profession and as a citizen is happily summarized in the following expressions writfen at the time of his death. Judge Lotz was the "possessor of a good heart, a clean and vigorous intellect, an honest intent, a clean record" ; was "a close reasoner, a stiff but fair fighter in party politics, a hard student of the law, a profound observer of passing events, an excellent judge."

Ten years later, in 1891, there were many additions to the personnel of the bar. Several of those named in the preceding list had died or removed from the county or taken up other lines of business. Some thirteen still continued among the active attorneys. 'The list for 1891 follows :

In the present year (1907) the list of attorneys reveals many changes I <- and additions. Fully half of those named in 1881 have been summoned by death and their places taken by a younger generation. The rewards and activities of business and affairs have drawn not a few away from active practice, so that some of those enrolled in the present Delaware county bar never receive a case nor prepare a brief for a client This is one of the changes in the legal profession noted by Ambassador Bryce in a review of changes in American life since he issued his "American Commonwealth." Lawyers are more and more drawn into business affairs, or combine business enterprise with legal practice.

There have been several organizations among the lawyers of this county, though none with great permanence or vitality. In September, 1905, a meeting was held in Muncie which resulted in the formation of the -Muncie Bar Association, which is now the principal organization of members of the bar in the county. Articles of incorporation for the association were recorded October 2, 1905, and Article I of the constitution names those who should be considered charter members. They are : Ralph S. Gregory, Joseph G. Leffler, Walter L. Ball, Edward M. White, William A. Thompson, James Bingham, J. Frank Mann, George H. Koons, Frank

Ellis, Frederick F. McClcllan. The first set of officers were elected February 24, 1906, namely: R. S. Gregory, president; George H. Koons, first vice president; Frank Ellis, second vice president; F. F. McClcllan, secretary; E. M. White, treasurer. In May, 1907, the officers elected were: George H. Koons, president; A. C. Silverburg, first vice president; William W. Orr, second vice president; W. T. Haymond, secretary; Frank Ellis, treasurer.

Before the November election of 1906 the association passed resolutions favoring a constitutional amendment raising the requirements for admission to the bar to the same plane as the regulations safeguarding the practice of medicine and other professions. Along the line of these recommendations the principal objects of the association may be said to lie. In admitting members to its own ranks, it has endeavored to pass upon the qualifications of the applicants, and thus in a measure set a standard for the entire Muncie bar.