Walla Walla County, Washington - Chapter 22: Bench and Bar of Walla Walla, 1901

Chapter 22: Bench and Bar of Walla Walla

In going over the county records in search data for this summary of the most important events in the legal history of Walla Walla county one is struck with the many changes that have taken place in the style and manner of pleadings and the form in which they are now and were then presented. Just as in the appointments of the court room with its convenient arrangement and commodious apartments there has been a remarkable advancement in forty years, so in the manner of preparing and conducting a case and keeping the records there has been great progress. In the time of the old District court, when the First District comprised practically all of eastern Washington, holding sessions at Colville, Colfax, Yakima and Walla Walla, about all the lawyers made their homes in Walla Walla as did the Associate Justice of the Territorial Supreme It was customary in those days for the judge to take a light wagon and a camping -outfit and start out in company with the lawyers to hold sessions in the other parts of his district. Each county or sub-division of the district had its own local officers, as sheriff, clerk and prosecuting attorney, who in matters of importance were assisted by the district attorney for the territory. Those who took part in these legal journeys tell many amu'sing stories of the times they used to have. Though partaking of the nature of an outing they were by no means pleasure trips, as at each town where a session was held, business had been accumulating for from four to six months, and the train of lawyers who followed in the wake of the judge were under the necessity of getting up their pleadings and bringing the causes to issue in the short time alloted for that term of court. There was no time for dilatory measures, demurrers, and motions to delay proceedings, but every one had to get down to business. Sometimes as high as thirty or forty cases were disposed of, most of them being actually tried. This necessitated night and day labor on the part of the attorneys and they had to swim hard or sink under the loads imposed upon them.

In Walla Walla the court used to be held in the building where Betz's Brewery now is and the site of the present court house was a public square where executions took place. When we go into the offices of the lawyers now practicing in Walla Walla and see their well furnished rooms, large law libraries with complete sets of State and United States reports, encyclopedias and digests ; with their stenographers and typewriters and other modern conveniences ; when we see all these appliances for doing accurate and expeditious work, we cannot help contrasting them with the days when Frank Dugan was wont to read citations to fit any case out of the sole book that comprised his library, and Colonel George carried his briefs in the top of his silk hat, and all the legal knowledge he needed in liis spacious head. Tlien. too, as we listen to the urderlv carrying forward of a trial in the presence of Judge Brents we are reminded of the contrast presented hy a tunuilt of jangling attorneys, and Judge Oliphant vainly endeavoring to maintain order by shouting: "Gentlemen, the row must stop ! This court is getting roused, and when this court is roused, it's roused, and there's an end on't." Or we may be reminded of a scene in Judge Strong's court, where the attorneys are sitting with their feet cocked up on chairs and benches and the air is dense with smoke. Suddenly the court becomes aware that proper decorum is not being observed and he declares : "There is too much smoke in this room. If you lawyers want to smoke you can go outside, but since the court has got to stay here it can smoke." Nor has there been in recent years such an exciting event as the running fight with six-shooters between Judge Langford and the Mullen Brothers, attorneys who practiced in Walla Walla fifteen or twenty years ago.

The good old times when everyone wore red-llannel shirts and long six-shooters have passed away, and with thcni have gone the days when all legal documents were written with pen and ink on foolscaj) pajier, when pleadings were short and formalities were more honored in the breach than in the observance. But there was a sturdy manliness in those days, bred of the rough surroundings, that atoned for many shortcomings, and was distinguished by a sense of justice, untramnieled by prece- <lents and hairsplitting legal distinctions. This trait was strikingly illustrated in one of the familiar sayings of Judge Wyche. Whenever the distinction was between a close adherence to precedent and ethical right, he would decide in favor of the latter bv the remark : "If I am not technicallv correct, I think I am giving vou substantial justice." So while we are rejoicing in the vastly improved general conditions, we must not sneer at the primitive methods of those who went before, nor overlook their sterling virtues.

Court was opened in the First Judicial district of the territory of Washington, and the first order was signed on the ist day of June, i860, with Associate Justice William Strong on the bench. The first order was one admitting Edward L. and Otis L. Bridges to practice before the court. Edward L. Bridges was appointed first prosecuting attorney for Walla Walla county, and James Galbreatb was the first clerk of the court. Judge Strong held the position until the 21st of October, 1861, when Judge J. E. Wyche was appointed. Under Wyche, Galbreath still continued as clerk, and J. J. McGilvra was appointed prosecuting attorney. Wyche was succeeded on April 4,

1865, when Judge Wyche came back to the First Judicial district. Tn :\Iay. 1867, P. B. Johnson was appointed clerk and Frank Dugan prosecuting attorney. J. K. Kennedy was appointed judge in 1869. on August 14th of that year. Under bini R. P. Reynolds was clerk of the court and A. J. Cain hekl the office of prosecuting attorney. On April 29, 1872. J. R. Lewis was appointed to succeed James K. Kennedy. Judge Lewis's appointment to- Washington Territory was the result of a peculiar circumstance. He had been on the supreme bench of the territory of Idaho without any e.xpectation of making a change. Some of his jxilitical enemies put up a job on him to oust him from his position. They made out a resignation, forged his name to it and sent it on to Washington, D.C. Thinking that it was genuine the ofificials there accepted the resignation and President Grant appointed another man in Judge Lewis's place. When later it was discovered that a forgery had heen committed and that Judge Lewis had not resigned at all, the president did not know what to do. It was at last straightened out l)y allowing the new man to take Lewis's place in Idaho and transferring him to the First Judicial district of Washington Territory. W. H. Andrews was chosen clerk and N. T. Caton, prosecuting attorney. S. C. Wingard was appointed on May 10, 1875, ^"<J '^sld the office for ten years. During his term of office he sentenced twelve men to be hanged, and all of them were executed, either legally or by the mob. Two of these legal e.xecutions took place in Walla Walla, the remainder being divided up among the other towns where Judge Wingard held sessions of his court. T. J. Anders was prosecuting attorney under Judge Wingard and A. Reeves Ayres clerk of the court. T. J. Anders has since distinguished himself as a jurist, having been on the Supreme bench of the state of Washington for nearly twelve years, and being at the present time chief justice. A. Reeves Ayres held the position of clerk for ten years, the longest of any incumbent since the organization of the county, and his handwriting as it appears on the records is superb. George T. Thompson, who is still living in Walla Walla, was also prosecuting attorney for several years under Judge Wingard. W^ G. Langford was appointed judge and took up his work on December II, 1885. Judge Langford was the last of the district jpJges ;ui(l held his office until November 18, 1889, when Washington Ijecame a state and the superior court took tlic place of the district court. Under Langford

Turning from judges to lawyers, we find among the attorneys of the county many of brilliant minds, distinguished throughout the state and in some instances of national repute. W. A. George, E. L. Bridges, O. L. Bridges, J G. Sparks, and J. D. Mix, the most noted. The first named. Colonel George, was one of the greatest characters in his way in the states.

Among the attorneys practicing in a little later time before the old territorial court who have since attained distinction the name of Honorable John B. Allen is most conspicuous. For a long time he was district attorney for the territory and upon the admission of the territory to statehood he was elected as one of the first United States senators. In 1893 he came up for re-election, but the Turner forces caused a dead-lock and no senator was elected at that session. Since that time Mr. Allen has been connected with the firm of Struve, Allen and McMicken in Seattle.

D. J. Crowley, now of the firm of Crowley, Sullivan & Grosscup of Tacoma, began his legal career before the district court in Walla Walla. Mr. Crowley now holds a leading position among the members of the bar of the state of Washington and enjoys a wide practice.

Supreme Judge T. J. Anders has alreadv been mentioned as having made his start in Walla Walla. Judges Kennedy and \\'ingard are both living in Walla Walla at the present time, enjoying a well earned retirement from active life. Judge Lewis moved to California and has since become rjuite wealthy.

Importaxt Criminal Cases

A case that attracted wide spread attention at the time of its trial was the Thomas murder case, which was tried at the April term of the district court in 1880 during Judge Wingard's term of office.

Thomas and his wife, together with S. \\'. Brumfield and his wife, passed through Walla Walla earl_\- in the year 18S0, on their way to the upper country. They went up by way of Texas Ferry and had not been gone very long when Thomas and his wife returned alone, saying that they had decided to go back to Kansas, and that Brumfield and his wife had gone on up to the upper country. Nothing was thought of it at the time although Brumfield was known to have had considerable money when he left Walla Walla. Early in April the bodies of Brumfield and his wife were found near Texas Ferry, and suspicion at once rested on Thomas and his wife as the murderers. They were arrested in Kansas and brought to Walla Walla for trial. N. T. Caton and D. J. Crowley defended them and R. F. Sturdevant and T. J. Anders conducted the case for the prosecution. The case was hotly contested on both sides and the defense produced a witness who swore point blank that he had seen Brumfield alive and back in Kansas since the time when he was alleged to have been murdered. The evidence was so overwhelmingly against Thomas and his wife that Judge Wingard called the prosecuting attorney to him before the witness had finished his testimony and told him to make out a charge of perjury against him, and not to let him get out of the court house. The witness seemed very nervous while testifying and was in considerable of a hurry to get out of the court room when he had finished, but the sheriff met him at the door of the court room with a warrant and he was subsequently tried and sentenced to five years in the penitentiary for perjury. Thomas and his wife had demanded - separate trials. In Thomas's case the jury brought in a verdict of murder in the first degree and he was sentenced to be hanged on January 4th, 1881. The scaffold was erected in the i)resent court house yard and the public schools were given a holiday to witness the execution. Before the fatal drop Thomas confessed the crime and took all the blame of the murder upon himself, exonerating his wife. In view of his confession and assumption of the blame the case against Mrs. Thomas was dismissed. Sheriff James B. Thompson performed the execution.

The Elfers Murder Case

The next criminal case resulting in an execution was that of John Elfers for the murder of Dan Haggarty. Haggarty owned a saloon near Waitsburg. John Elfers, on October 27th, 1883, created a disturljance and got into an al- tercation with Haggarty's bar keeper. As he would not be quiet they put him out. He came back a second time in an ugly mood and was again ejected. Nothing more was heard of him for half an hour when without any warning a shot was fired from without and Haggarty fell forward dead. Although no one saw Elfers at the time of the shooting, yet he had been seen looking in at one of the windows just before the shot was fired. He was found in Walla Walla and put under arrest. He was defended by Ormsbee and Hanson, and the prosecution was conducted by George T. Thompson. He was convicted of murder in the first degree and hanged by SheriiT James B. Thompson on January 15th, 1884. Judge Wingard was the presiding judge. There is something gruesome about these old death warrants with their black border and sable seal when we think of the chill which they caused to pass over the condemned man's soul as he listened to the sherift' read the fatal words : "hanged by the neck until dead," and realized that his last hope was gone. As we look through the court records now we see these gloomy evidences of man's effort to mete our punishment to his fellow man for wicked deeds, and they stand out as dark birds of ill omen to warn the would be criminal from his dangerous path. The execution of Elfers was the last legal execution to take place in Walla Walla county.

lodging houses, one the Aurora hotel, on the corner of Rose and Fourth streets, and the other over near the Sisters' hospital. On the night of March 13th, 1888, both of these lodging houses were burned down under very suspicious circumstances. A number of fires had happened about the same time that were believed to be of incendiary origin, and an investigation was instituted to discover the cause of the burning of the Aurora hotel, since the life of a young man named Harrold had been lost in consequence. It developed that the fire had been purposely set and Mrs. Pyle and her son, John Hurn, were arrested on the charge of murder and arson. Mrs. Pyle stoutly maintained her innocence but the evidence was too strong and both she and lier son were found guilty of murder in the first degree and sentenced to he hanged. A strong effort was made to save them by some parties who believed them innocent, but without avail, until Mrs. Pyle got the endorsement of the prosecuting officers by making a confession in which she owned up to entering into a conspiracy to burn the building for the insurance. A stay of exectition was subsequently granted and later Governor Semple commuted the sentence of both prisoners to life imprisonment. J. L. Sharpstein and George T. Thompson conducted the case for the defense and T. J. Anders for the prosecution. In January of this year (1901) Governor Rogers granted Mrs. Pyle a full pardon and she was set at liberty, but died soon after her release.

The Royse Murder Trial

The trial of Frank Royse for the murder of his grandfather is still fresh in the minds of Walla Walla iieople. The farm of Benjamin F. Rovse, deceased, is about ten miles from

\\'alla Walla and situated near Dixie. On the 8th of February. 1900, the house was burned and the old gentleman's body was burned with it. At first it was thought to be an accident that the old man had been caught in the tlames, but the coroner's in(|uest developed the fact that the charred remains bore evidence of Jiaving sustained a gun-shot wound. Frank Royse and his grandfather had had some trouble about financial matters and Frank had been seen around the house before it was burned. He was arrested on the charge of murder in the first degree. Royse was defended by Griffits, Dovell, Ormsbee and ?\lcKinney, and the prosecution was conducted by Oscar Cain. The evidence that Royse had murdered his grandfather when drunk and then to hide the crime liad burneil down the house was too strong to be successfully opposed, so the defense confined themselves to proving insanity, and endeavoring to at least secure a verdict in a less degree. Evidence was produced to show that James Saylor, a great uncle of the defendant, was then in an asylum for the insane in Iowa, and that his mania was of a homicidal nature. Expert testimony was also produced as to Royse's mental condition at the time of the killing and subsequent thereto, tending to show that he was afflicted with the homicidal mania hereditary in the family. The jury lirought in a verdict of murder in the second degree, stating that the crime was committed while Royse was in a suftkienlly sane condition to know what he was doing, but was without premeditation or deliberation. Judge Brents sentenced him to twenty years in the penitentiary. An appeal was taken to the supreme court of the state, and pending a final decision granted the defendant the privilege of bail, which was set at the sum of ten thousand dollars. Royse was able to secure the required

Important Civil C.Vses

Isaacs I's. Barber. This was a case involving the rights of the prior appropriator of water upon public lands. The action was brought by H. P. Isaacs to restrain George H. Barber from interfering with a dam which had been erected for the purpose of diverting water from Mill creek into a race, or flume, which led to the Isaacs flouring mill. The defendant justified his action under the claim of the right to have the waters flow past his place situated on said creek between the point where the water was di\'erted and plaiutifY's mill. Isaacs in the year 1862 had diverted the waters of Mill creek into his race and used it for the propelling power of his mill. At the time of the diversion the point at which his flume began was on the public domain. Later when a man named Dodge purchased the land over which his flume ran he secured a ninety-nine year lease of the privilege of so conducting the water across the premises. He contended that he had the right to make the diversion by reason of his prior appropriation, and also from having secured the permission of the owners of the land to construct his flume and finally that there had been such open and notorious and continui3us use as to give title by prescription. Barber claimed that the right of prior appropriation did not exist as a part of the law or custom of the locality, and next that the grantor, Dodge, acquired the title prior to the act of congress of July, 1866, under which Isaacs claimed his right by priority of appropriation.

The Supreme court held tliat the right of prior appropriation existed prior to the act of 1866, and that congress in that act simply recognized it. It was a part of the laws and customs of the locality when the diversion was made. To the second proposition of the appellant (that the land having passed by absolute ^'rant before the passage of the act of 1866, the title held for such riparian rights as were recognized by the common law of England), the court held that since the tract of land owned by appellant had come to him through a conveyance from Dodge, who had for more than twenty years acquiesced in the appropriation made by Isaacs at a point upon his land, the appellant could not interfere with the appropriation. The lower court was upheld in its decision.

The Case Of Denney Vs. Parker

This was a case invoh-ing the right of attorneys to compromise a suit without the consent of the parties thereto, provided their action is afterward ratified ; and also the right of an administrator to compromise a lawsuit involving title to realty, without sul)mitting the matter to the probate court for approval.

Nathaniel B. Denney, administrator of the estate of Timothy P. Denney, deceased, was plaintiff and Hollon Parker, defendant. In the life time of Timothy P. Denney he conveyed the property in question, together with several other tracts to the defendant. Later on an action was brought by Denney to have it declared that the defendant Parker held these tracts of land in trust for him. The district court of the territory decreed as the plaintiff had asked and directed the defendant to make a deed of the i)roperty to plaintiff within a certain time. An appeal to the supreme court of the territory was taken and the judgment of the district court affirmed. An appeal was then taken by Parker to the Supreme court of the United States.

While the cause was still pending in the supreme court of the territory, Timothy P. Denney died, and his wife, Elizabeth Denney, the executrix of his will, was substituted as plaintiff. Before the matter came to a decision in the Supreme court of the United States a compromise was agreed upon whereby one tract of land was to be deeded to Parker and the rest was to be deeded to Denney. The terms of the agreement were complied with and an order made by the Supreme court of the United States dismissing the appeal.

In 1894 Nathaniel B. Denney, as administrator of the estate of Timothy P. Denney, deceased, brought suit to recover title to the property that had been deeded to Parker under the terms of the stipulation above referred to. He claimed, First, That the attorneys who signed the stipulation were not authorized by their clients to do so. Second, that under the statutes an administrator or executor has no right to compromise a suit without authority from the probate court; and Third, that even if such a compromise could be made in a suit not involving realty, it could not be done when the effect of the compromise is to pass title to real eslc-te.

The superior court of ^^'alla Walla decided in favor of Parker in this instance and an appeal was taken to the supreme court of the state. The supreme court held that attorneys did have a right to make compromises affecting title to realty, provided their clients subsequently ratified their actions; and in the case in question the clients had so ratified the actions of the attorneys. As to the second proposition the court made a distinction between the compromise of claims by an administrator which had not yet come into court for settlement, and those which prior to the compromise had become involved in a case in court, holding that in the latter event a compromise could be effected without reference to the probate court for ratification. The third contention of appellant was met by the court's holding that such power of compromising matters already in litigation was not necessarily limited to cases which did not involve the passing of title to realty.

The decision of the superior court was affirmed and Parker retained possession of the tract that had been deeded to him in consequence of the compromise.

The Walla Walla Water Company

This was a bitterly contested case and attracted Avide-spread attention on account of its public character and the large interests involved.

On March 15, 1887, the City Council of Walla Walla passed an ordinance to secure a supply of water, and granted, under certain restrictions, to the \\'ater Company, for a period of twenty-five years, "the right to lay, place, and maintain all necessary water mains, pipes, connections and fittings in all the highways, streets and alleys of said city, for the purpose of furnishing the inhabitants thereof with water." The city also agreed not to erect water works of its own during that period of twentyfive years.

After this contract had been in force for about six years and on June 20, 1893, an ordinance was passed "to provide for the construction of. a system of water works" for the purpose of supplying water to the city and its inhabitants ; to authorize the purchase and condemnation of land for that purpose, and to authorize the issuance of bonds to the amount of one hundred and sixty thousand dollars to provide the necessary funds. This proposition was submitted to the freeholders and carried by a sufficient number of votes.

The Water Company made application to tlie circuit court of the United States for the district of ^^'ashington for an injunction against the city to keep it from expending money or selling bonds to erect such a system of water works. The company won its case in the circuit court and the city appealed to the supreme court of the United States.

The supreme court of the United States held that the case depended largely upon the power of the city under its charter. The ordinance authorizing the contract, which was passed in pursuance of the charter, stated that the contract could only be declared void by a court of competent jurisdiction, and that until it should be so voided the city could not erect, maintain or become interested in any water works except the one established by the company, while the ordinance of June 20, 1893. provided for the immediate construction of a system of water works by the city. Upon the face of the two ordinances there was a plain conflict, - the latter clearly impaired the obligation of the former. The court therefore held that the original contract of the city should hold and that the city had no right to construct water works of its own until the twenty-five years were up. The decision of the circuit court was upheld.

Water Company. The only thing left for the city to do was to buy out the interests of the Water Company under a provision of the contract, and in 1899 a proposition was presented to the voters to bond the city for a sufficient amount to buy out the Water Company and put the control of the water system in the hands of the city. The proposition was carried and the

There have been many cases involving greater amounts than those we have mentioned, but we believe that we have given a summary of the most important cases from a legal point of view; cases which involved far-reaching legal principles.