Custer County, Nebraska - Chapter 14: Legal and Other Professions, 1919

Chapter 14: Legal and Other Professions

The History of Custer County's Bar - First Grand Jury - A Hog in the First Case - A Lawyer Engaged in Useful Work - Two Custer County Judges - Another Class - The Younger Bloods - Didn't Know Anything - Was Criminal Enough - No Spread-eagle Stuff - Had to be Shown - Had Two Chances to Escape - Summoned THE Dead Man - Confused the W-itness - All Lawyers on THE Same Side - Too Old for the Pen - Ten was a Plenty - Trials by Day and Night - A Square Lawyer - Custer County Medical Men

The people of Custer county are loyal to their own. They are proud of their county and its resources. They are equally proud of their social and professional achievements. Proud of their farms, proud of their fanners, they are proud, too, of their professional men. They possess a wealth of professional men which marks them throughout the state.

No other county of like population has brainier lawyers, more efficient physicians, or more competent dentists. No county has a brighter corps of newspaper men, or more eloquent or fluent clergymen. The professional men and women in the high schools and the grade schools are likewise the peers of any teachers in the land. All these professions are well and strongly represented. Every profession is headed by men who have statewide reputation, and in any professional conclave they play the role of leaders.

Her professional sons have served in congress, and on the supreme bench of the state. In high positions of public trust they have captured the highest honors the state has power to bestowj In educational circles and on the public platform, Custer county has furnished her quota of peers and masters. Her physicians and dentists occupy high places in the annals of their state organizations. Custer county, which began its career over forty years ago, has graduated from the university

A full account of the professional activities of the men of Custer county cannot be given. Data are not procurable. All that can be done is to detail a few brief facts concerning the professions that have organization records.

Shortly after the organization of Custer county, in 1877, and the opening of the courts, in the early '80s, came an influx of bright and energetic young men to practice as attorneys and establish themselves in law. Several of these early lawyers found Custer county so attractive that they have never left it. They early established themselves as among the most active and influential members of the community and are to-day, with hardly an exception, among the most substantial men in the county.

The early bar of Custer county consisted of John S. Kirkpatrick, J. A. .Armour, Silas A. Holcomb, George W. Trefren, A. Kilgore, J. W. Hutchinson, James Ledwich, Homer ^I, Sullivan, Augustus R. Humphrey, R. E. Brega, Emil Gschwind, Fred G. Waite, E. P. Campbell, and Charles L. Gutterson.

in Custer county was issued on January 1. 1883, by Judge William Gaslin, to be held on May 10 and October 9 of the same year. The first term was a two-day aflfair, opened by Jess Gandy, sheriflf, with Samuel L. Savage presiding as district judge, J. W. Bixler serving as district attorney, and Wilson Hewitt clerk of the court.

The grand jury which was empaneled, returned true bills indicting a total of twelve persons. - -three for setting fire to the prairie, three for imlawfully practicing medicine, two for selling liquor without license, two for shooting with intent to kill, one for felonious assault, and one for stabbing with intent to kill.

At this term J. S. Kirkpatrick. J. .\. Armour, and the late Francis G. Hamer were appointed an examining committee to pass on the qualifications for admission to the bar of Klorentus Al. Hallowell and Thomas Young. They reported favorably and both candidates were admitted to practice law in the courts of the state.

There were eight civil cases and one criminal case on the docket, but no attorney was ready for trial. It is said that the young attorneys had a severe attack of stage fright.

No trial developed. Four cases were dismissed, "as per stipulation on file." The court dismissed tliree more, on motion. This left but two cases on the do:ket, on both of which the attorneys were given additional time to plead.

The October term began (October 9th, with the same officers, except that Jess Gandy, sherifl', had gone on a deer and elk hunt into the sand-hills, and L. S. Trefren was acting in his stead.

\\'hile more important cases were getting ready for trial, the first case tried in the district court, Custer county, Nebraska, was given to the jury. This was the case of J. A. Perkins, plaintift', vs. Jackson Dye. defendant. It was an action in replevin for "one black and white hog fourteen months of age."

The jury did not take many days and nights to settle the case, but returned their verdict very promptly, finding that plaintiff was entitled to possession of the hog, that the hog's value was nine dollars, and plaintiff's damages for its wrongful detention by the defendant, one dollar. But let no one suppose the defendant got off by paying any trifling sum. Every witness, both in justice and district court, was served with his "subpoena" and awarded his "mileage." W'iien Mr. Dye came to pay the bill, it was one dollar for the judgment and $161.63 for the "court costs,'' which made the hog he entertained for a short time, "some hog'' after all.

Such was the beginning made in the terms of court holden in Custer county, Nebraska, in the year 1883. The early litigation in the county centered largely around land and cattle. At the time the county was organized, cattle-grazing was its only industry. The various ranchmen had acquired or were acquiring title to the land bordering the rivers and creeks of the county, and all the hills lying back from these water fronts were recognized as the range of the man who owned the water front.

ening and breaking up of all these ranges and ranches. While most of the homesteaders were honest and honorable, some few shady characters filtered into the settlements, who, when they became hnngry for beef, found it easier to kill some ranchman's calf, heifer, steer, or cow, than to stalk a deer or elk by following the fast disappearing sup[)ly of such wild game into the sand-hills.

Indeed, some of the bolder of these marauders were not satisfied with poaching sufficient beef from the ranchmen to supply their scanty table with the choicest of grass-fatted steaks but, the ranchmen allege, did a regular business of killing ranch cattle, burying or burning the hides and taking the beef by wagon to Kearney and other towns. This, of course, led to all kinds of endeavors on the part of the ranchmen to be rid of these particular offenders, and this, together with the encroachments on their range, created a strong antagonism between the ranchmen and early homesteaders.

In working out these difficulties numerous criminal cases arose, involving almost everything from "claim jumping'' and cattle stealing to the first degree of murder. In the prosecution and defense of cases of this kind, H. I\I. Sinclair, of Kearney, H. M. Sullivan, of Broken Bow, and others, early won their reputations as criminal lawyers.

Custer county has produced rather more than its share of lawyers who have received high political honor. Perhaps the most conspicuous of these is Silas A. Holcomb, heretofore mentioned as one of the pioneer attorneys of the county. Mr. Holcomb first came into political prominence by winning the district judgeship, as a candidate of the Populist and Democratic parties. While still a district judge he received the Populist nomination for governor, was endorsed by the Democrats, and was elected, being the only successful member of his ticket. Judge Holcomb was then reelected as governor. Following, a few months after his retirement as governor, came his election to a six years' term as judge of the supreme court. At the present time Judge

When asked to write something for this chapter, Judge Holcomb submitted the following, which gives a good picture of conditions in legal circles in the days of the pioneer ;

"I was admitted to the bar in March, 1882, and removed to Broken Bow in the early spring of 1883, about March 1st. The town was then rather small, but the outlook promising. There were two lawyers there. One was George W. Trefren, who was in the landoffice business, with Wilson Hewitt, who was county clerk, the two doing a 'land-ofifice' business, sure enough, at the time, as the country was just beginning to settle up rapidly. I also found that my old partner, John S. Kirkpatrick, had 'beat me to it," he having removed to Broken Bow in the fall of 1882 and located himself and family in a little building, about twelve by twenty-four, on the east side of the square, about the center of the block. After looking around, taking in the town, and getting acquainted I became more interested in my competitors in the law business and began to. as best I could, size up Trefren and "Kirk' as possible opponents in hard-fought legal battles in which I was to be employed as one of the lawyers.

"When I first saw 'Kirk,' and he was then a great, big, fat fellow, he was in his shirtsleeves, with rubber boots on, and with a spade was digging a trench to let the water run away from his building. Strange as it may seem, there was rainfall enough to make it necessary for him to lead the water away from his building in order to make it more accessible. I concluded, after looking at 'Kirk' for a while, and then introducing myself and having a brief talk with him, that I could hold my own in a lawsuit where he was on the other side, but after a few contests with 'Kirk' in the legal arena, I became convinced that I had underestimated his strength as an adversary in legal proceedings. I soon learned to respect him as a young man of considerable ability and one who was both plausible and convincing in his arguments to both court and jury, and especially was I impressed with the conviction that he won the confidence of the court and jury, who seemed to believe in his earnestness and sincerity as to the right of the matter he was advocating. Later on. Judge Sullivan and Judge Humphrey showed up, and with this accession in numbers and talent we had some real litigation and began to look upon ourselves as a bar of some pretensions, besides which we began to work together, when necessary, to crowd out the lawyers who had been coming to Custer county from Dawson, Buffalo, Sherman, and other counties and doing a good share of the business which we felt belonged to us by right of our residence in the county; in this we succeeded and it was not very long until a large percentage of the legal business in the county was done by the local members of the bar.

"The bar continued to grow in numbers and strength until it was, in a few years, recognized as one of the strong bars of the state. The county settled up rapidly, and, being a large county, with a large population, the law business was all the more important, thus bringing together members of the legal fraternity in larger numbers than would be found in the smaller county-seats.

'Tn 1891 I was elected district judge of the then twelfth judicial district, since which I have not been permitted to be closelv associated with the members of the bar in active practice, except for but a brief period from 1908 to 1912. There are so many incidents, interesting, humorous, ludicrous, and otherwise, in connection with the early years of my practice, that I can hardly select any of them, and as we have a number of old-time lawyers who are good story tellers, I am inclined to leave this phase of the history of the bar to them as being in more capable hands."

Another attorney to rise to the judicial ermine from old Custer is Judge J. R. Dean. Judge Dean was elevated to the Nebraska supreme bench by appointment, but is now serving .as a regularly elected member of that judicial body.

Two Custer Couxtv Judges

Judge Homer M. Sullivan and Judge Charles L. Gutterson have both served as judges of our district court, the former obtaining the office at a popular election, the latter by appointment. John S. Kirkpatrick, heretofore mentioned as one of the very earliest pioneer attorneys of Custer county, was appointed a member of the supreme-court commission and served several years in that position. He still appears frequently in Custer county courts, as private counsel of the Dierks Lumber & Coal Company, but his office is now in Kansas City, Missouri.

The Custer county bar at the present time, consists of the following attorneys who have seen many years of practice in this location : Judge Homer M. Sullivan, Judge A. R. Humphrey, Judge J. A. Armour, Judge C. L. Gutterson, R. E. Brega, and Alpha Morgan. All of these men were among the early pioneers of Custer county and all are still in active practice, with one exception, maintaining offices at the county seat. It would be hard to find the same number of professional men who represent greater ability or more force of character. They have met all the emergencies of a new and developing county and have rung true in every test. Their competency and integrity would do fine credit to the bar of any community. All of them have accumulated enough to make them comfortable, and are not obliged to lie in wait for clients as in former days.

The county bar roster contains the following names of veteran leaders who have been in active practice for many years, yet in point of time stand on the next terrace below the pioneer practitioners : Judge John Reese, Judge C. H. Holcomb. lion. Charles W. Beal, Nathan T. Gadd. A. P. Johnson, and Edwin E. Squires. These men are just coming to the zenith of their power and already have a rep- utation throughout the state as able and trustworthy exponents of law. With the exception of one who has retired to his ranch, all have good and lucrative practice, which pays the best possible tribute to their standing and character. Emil Gschwind, heretofore mentioned as a member of Custer county's early bar, has for many years been police judge of Broken Bow.

The Younger Bloods

The bar has still another class, of younger members, with a standing of ten years or less at the Custer county bar. All of these are lawschool products or college-bred, or both. This class roll contains the names of Judge X. Dwight Ford, Frank Kelley, H. L. Wilson, J. A. Brunt, William C. Schaper, and Edwin F. Myers. These young men are already well established and are gaining rapidly in both experience and clientage. In the realm of law, they are already bridle-wise and harnessbroke ; they may well be depended upon to maintain the dignity of the Custer county bar, and sustain the reputation of their predecessors of the former generation.

Judge Gaslin was a good judge and he was impatient of delay. Sometimes he held court in Custer county. One cold winter night just before adjournment, and it was then about eleven o'clock, the judge announced to the bar that in order to speed up, court would open in the morning promptly at half-past seven o'clock and any lawyers having cases might take notice and be on hand. At the appointed hour, court, counsel, litigants, and witnesses were all there. The thermometer then registered several degrees below zero, which added to the solemnity and inconvenience of the occasion. William Blair, who had been janitor of the court house ever since it was built, was called as the first witness when court opened, and among other things remarked that he "didn't know anything about the case, anyway." The judge remarked: "What's that, Billy? Don't know anything about this case? Then what are you doing on the witness stand? Get out of there and let some witness come to the front who knows something about this case. There are too many people in this case now that don't seem to know very much about it, lawyers included."

Judge J. C. Xaylor was a pioneer lawyer. When asked why criminal cases were not disposed of before civil cases, as is the usual practice, he replied that the disposal of the farm-mortgage cases was not a departure from the rule, because there seemed to be as much criminality in the prosecution of the foreclosures as there was in the criminal cases.

No Spre.Xd-Eagle Stuff

Judge Naylor was an attorney in a case that originally involved a trifling sum of money, but later on much feeling was engendered, in part because the costs were large and became the main feature. Judge Gaslin presided and, knowing Judge Naylor's proneness to make long and eloquent speeches to the jury on slight provocation, just before the argument he began to admonish the lawyers in this fashion : "Gentlemen, you are limited to ten minutes on each side. I want you to understand that in a case involving only $8.30 you can't go before the jury with a long-winded history of the universe nor a 4th of July speech." But the lawyers on both sides got their views to the jury, in their arguments to the court, on the importance of the case to the public and the profession because of the principles of law involved and to the litigants because of the large amount of costs.

A lawyer, from another district, in an argument before Judge William L. Greene, read from a Nebraska report, a proposition of law that did not appeal to the judge, and he remarked that if he were shown that our supreme court said it twice he would have more respect for the proposition than he was then able to entertain. On investigation, the judge found the lawyer had read from the brief of counsel that is sometimes inserted in the reported decisions.

Had Two Chaxces To Escape

A lawyer for defendant in a criminal case took earnest- exception to the fact that his client had two preliminary examinations. Judge Greene overruled the exception and remarked that he ought not to complain, because his client had been generously treated, in that he was given two chances to escape before the trial, when lie was only entitled to one.

When Judge H. M. Sinclair, of Kearney, was on the bench, a foreclosure case was pending in which the principal defendant died after the case was begun. Apparently the plaintiff was not aware of this, and the usual summons was issued. The return by the special deputy appointed to serve the summons, was the tirst intimation to any person connected with the case that the defendant was dead. His return recited in substance that : "John Doe is dead. I served this summons on him by leaving a true copy thereof at his last usual place of residence." Upon reading the return. Judge Sinclair remarked: "Custer county has many remarkable and efficient citizens, but here is a man who has surpassed them all. This is the first time in my experience as lawyer and judge that a man has been found who can obtain service of summons on a dead man." The record shows that the Judge continued the case.

Confused The Wit.Xess

.\ lawyer from some remote region was testifying as a witness in his client's case. The attorney for the other party insisted that, in order to keep the record straight, he submit his testimony in the form of questions and answers. All proceeded well until an objection was interposed on the groi.nd that a certain question that the lawyer propounded to himself "tended to confu.se the witness." That was too much for Judge H. M. Sullivan, who presided at the trial, and he ruled thit tlie narrative form of submitting testimonv be resumed.

Two members of the same familv were acquitted of an assault to commit great bodily injury. There were two attorneys for the state and two for defendants. The case was warmly contested for two or three days. There was not a dull moment from the opening to the close. \\'hen the verdict of acquittal was returned, one of the defendants took one of the attorneys for the prosecution by the hand, remarking that as they had been friends before he hoped their friendship would continue. The other defendant, a boy of about eighteen, assured the same attorney that he had nothing against him nor his associate "because both of you did as much for us in this trial as our own lawyers did."

Too Old For The Pex

Judge Aaron Wall, of Loup City, and a local lawyer successfully defended a client wrongfully accused of taking mortgaged chattels out of the county. The defendant's lawyers argued that if their aged client was convicted he would only hear the prison doors clank when he entered ; that he would not hear them when he came out in his casket. A Norwegian juror said after the trial was over : "Das man too alt to send to pan. Send him to poor farm ; das better." The prosecutor said the next criminal case he prosecuted, the first fact he would establish after the venue would 1)e the age of the defendant.

Tex Was A Plextv

Robert E. Moore was a rapid-fire cross-examiner. On the cross-examination of a Swedish witness on character, after having him tell the names of about ten men who had spoken ill of the subject of inquiry, the witness began to run low on names. After' being pressed to give just one more name he refu.'^ed. When asked why he replied : "Well, ay bane over my township and ay live on county line and Gothenburg man bane no good in Custer : anyhow, ten names bane plenty." When order was restored in the crowded court room the witness was excused.

Trials Cv Day And Night

before Justice ^laze, at Lodi, in 1892. But niglit had no terrors for the vahant counsel, and when the shades of evening" fell and the country-side came out to witness the usual forensic efforts, the justice adjourned court from his residence to a convenient schoolhouse, where the hearing ended a little before daybreak, and the lawyers arrived in Callaway just in time for breakfast. The same thinghappened in a civil case tried before a justice at Callaway in 1902. After a trial lasting all day and all night the case was finally submitted in time for all parties to get breakfast.

Judge John S. Kirkpatrick was a square lawyer and dependable. A beginner in the practice undertook to get a large sum of damages for the condemnation of land for a railroad switch. The costs began to pile up. "Kirk," who represented the railroad, warned the opposing lawyer to "be careful about making costs, because your client is going to have to pay all of them." And so it turned out. In speaking of the incident afterwards the lawyer whose client "paid the costs" remarked that he often heard that "Kirk" could be depended on, and now he was sure of it.

Call the doctor. It doesn't make any difference which one, they are all good. They are all trained school men, educated in the best schools to be found anywhere in the country. They are adepts in the latest methofls, they are skillful combatants of all diseases and human ailments. In the quality of her medical men, Custer county ranks with any like portion of the earth. Alany of them have made reputations outside of the county and are known throughout the state, and have frequent calls for consultation far from their respective homes.

In the early days the practice of medicine was followed under many difficulties. At that time, the medical science was not so far advanced. Not so many methods of resisting disease encroachments were known. Not so many appliances and commodities were to be obtained. Sanitary conditions could not be so well maintained. Yet, the practitioners of that early day were heroes. They mercifully responded to every call. No night was too dark, no road too long, no storm too fierce. They shielded themselves from no e.xposure - pay or not pay. It made no difference ; their services were rendered for the sake of God and humanity.

One of the old time practitioners. Dr. R. C. Talbot, who is himself well deserving of every encomium recorded in the paragraph above, has contributed the following concerning the medical profession of Custer county :

"The members of the medical profession were pioneers in the early settlement of Custer county, the same as those representing other professions and industries. Those who first came here early, were more often lured by wanderlust for change of environment than for improvement in their professional surroundings. The first man to make a permanent home in the county, who made any pretensions to medical knowledge, was L. T. Burbank, a returned foreign missionary who, prior to his foreign work, had taken a course in medical lectures, to better prepare him for work among the heathen. Dr. Burbank settled on a homestead not far from the present location of Georgetown postofiice. about 1875 or 1876. As he went from one settlement to another, preaching and encouraging the pioneers spiritually, he also administered to their physical needs as well.

"In September, 1889, Dr. R. C. Talbot, a graduate of Miami ]\Iedical College, Cincinnati, Ohio, located on a homestead in the valley of the Muddy creek, near where the town of Berwyn is now located. .Although desiring to relinquish the practice of medicine, he found it almost an actual necessity to continue to attend the sick among the sparsely settled homesteaders. The hardy pioneers of those days did not call a doctor for every little ache or pain, for to so do it would often necessitate a journey of ten to twenty-five or more miles before a doctor could be found, and the necessary further delay of a return trip threw them on their own resources. Consequently, a doctor

'-In July, 1880, T. N. Waterbury located a homestead north of where the town of Westerville is now situated, and he practiced his profession as an undergraduate until the winter of 1882, when he went to St. Louis, ^lissouri, and attended the American Medical College. He returned a graduate, in the spring of 1888, and continued in the work of his profession until liis final sickness and <leath, in September, 1884.

"During the early '80s Benjamin L. Brisbane homesteaded near Custer postoffice and he preached the gospel and practiced medicine for several years. He did not make the practice of medicine a business, although he was a graduate of Ohio Medical College, Cincinnati, believing he could be of more benefit to the people in the capacity of a preacher.

"Dr. Wyman Hull located in Broken Bow in the early establishment of the town and practiced medicine part of the time, but devoted most of his time to the management of the famous Marble Top hotel

"In the fall of 1883, John J. Daum, a graduate of Rush Medical College, Chicago, established an office in Broken Bow. and he practiced his profession until his death, which occurred in the early '90s at Palmer Lake, Colorado, where he had gone in the hope of regaining his health. He had been associated with Dr. R. C. Talbot, in Broken Bow. from 1888 until the time of his death.

"In the year 1883 Dr. Lawrence L. Crawford, a graduate of Cincinnati College of Medicine and Surgery, located in Merna, where he continued iia business until in the late "90s, when he located in Colorado.

"In 1884 Clarence \V. Mesceran located in Broken Bow, being a graduate of Bennett Medical College, Chicago, Illinois. He continued in business here for several years, being associated part of that time with Rufus K. Langson, who was a graduate of the Chicago Homeopathic ]\Iedical College, Chicago, Illinois.

"J. W. Miller, of Rush Medical College, Chicago. Illinois, located in Mason City in 1885 and remained there until the late '90s, at which time he went to Gibbon. Nebraska.

"J. H. Murry, Iowa College of Physicians and Surgeons. Des Moin'ts. Iowa, located in -Arnold in 1885. remained there for several years and then moved to Idaho. Thomas E. Stack located at or near Oconto in 1885. .Afterward he moved to Broken Bow and in a short time he located at .-\nselmo. William Robert Renwick, of L'niversity City Medical College of New York, located at Sargent in 1883 and remained there for a few years. During the year 1885 F. \insonhaler located in Westerville. Dr. \'insonhaler was a graduate of the College of Physicians and Surgeons, Xew York city, and remained in W'esterville for several years. In 1885 Luther Michael, of the Ohio Medical College, of Cincinnati. Ohio, located in Callaway and remained for a few years.

"In 1886. the year the B. & M. Railroad was built through the county, the following named doctors located in the county : J. J. Pickett, Charles M. Luckey, J. \\'. Sanders, Franklin Reyner. and James W. Caldwell at Broken Bow; Hiram Chase. Mason City; E. E. Hamilton, -\nselmo ; -Alexander L. Mathews. William H. Charlesworth. at Callaway. Dr. J. J. Pickett was at Broken Bow, except a short time at C7reeley Center, up to the time of his death, in l')12. The others remained in Broken Bow only a short time. Of those who located outside of Broken Bow all but A. L. Mathews remained only a short time. Dr. Mathews is still at Callaway, but has retired from active practice. In the years 1887 and 1888 H. H. Wist. Cyrus Pickett, and J. J. Carpenter came to Broken Bow, but none of them is here now. Dr. Wist devoted little of his time to the practice of medicine. In other

"From this time on doctors came and went in such numbers that it would take up too much time and space to mention each one. Taking Brokeri Bow as an instance of the doctors who have located there, Dr. J. J. Pickett is the only one who has died there. The profession of this county has been and still remains quite a factor in the improvement of sanitary conditions, in the way of preventing and controlling infectious and contagious diseases. The Custer County Medical Society has been a large factor through united team work, placing the upbuilding of both the profession and society at the front of its efforts. This society was organized in the late '80s, was reorganized in the early 'QOs, and during this time its membership list has contained the names of a large percentage of the doctors of the county. The frequent and harmonious meetings have been of mutual benefit, and its influence has been extended until it has reached the profession of the state through the State Medical Society.

"Last, and by no means least, the medical profession stands one hundred per cent, patriotic in the great world-war, as every resident member has voluntarily enlisted his services to the government to be used wherever and when called upon. The county has already furnished more than its quota for active service, represented by the following named: Dr. O. L. Housell, first lieutenant ; Dr. R. P. Higgins, captain, of Ansley ; Dr. R. D. Bryson, captain, of Callaway; Dr. W. E. Talbot, captain, of Broken Bow ; Dr. J. C, Wade, lieutenant, of Oconto; Dr. C. L. Wills, captain, of Anselmo."