Full text of "History of Minnehaha Co." Chapter 3
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CHAPTER III.
UNITED STATES DISTRICT COURT - DISTRICT AND CIRCUIT COURTS OF MINNEHAHA COUNTY -
PROBATE COURT - COUNTY COURT.
UNITED STATES DISTRICT COURT.
At the first session of the legislature of the State of South Dakota in
November, 1889, R. F. Pettigrew was elected United States senator. On the first
Monday in December, following, he took the required oath, and entered upon the
duties of his office. He began at once to secure such congressional legislation
as the new state required to place her on an equal footing with her elder
sisters, and on the 27th day of February, 1890, an act of Congress was approved
declaring that the State of South Dakota should constitute one judicial
district, and that for the purpose of holding courts such district should be
divided into three divisions to be known as the Eastern, Central, and Western
divisions, and the United States circuit and district courts held at Sioux
Falls, Pierre, and Deadwood, respectively. The first Tuesday in April and
October of each year was fixed for the eastern division.
In 1893 a change was made, and a new division created called the Northern
division, and Aberdeen was designated as the place for holding the terms of
court for this division. By the same act the time of holding the October term at
Sioux Falls was changed from the first to the third Tuesday in October. On the
19th day of November, 1889, Alonzo J. Edgerton was appointed United States
district judge of South Dakota. There was, of course, no government building for
holding the courts at that time, and rooms were rented in the Masonic Temple and
used for that purpose until the government building was ready for occupancy in
May, 1895. Judge Edgerton died on the 9th day of August, 1896, and on the 31st
day of the same month John E. Garland succeeded him, and is the present judge.
Some terms of this court have been quite lengthy, and important trials
have taken place, both civil and criminal. One feature when held in Sioux Falls
which is quite noticeable is the large number of Indians always in attendance.
The district court has jurisdiction over offences committed on the Indian
reservations and there is at each term a large number of indictments found by
the grand jury against persons for selling intoxicating liquors to the Indians,
which is prohibited by the statutes of the United States.
DISTRICT AND CIRCUIT COURTS OF MINNEHAHA COUNTY.
On the 16th day of May, 1871, the time fixed by law for holding the first
term of the district court in Minnehaha county, a few persons met at the
appointed place, but there being no judge present, the clerk adjourned the court
until the next day. Wednesday the 17th day of May, pursuant to adjournment, the
court convened, Hon. W. W. Brookings, associate justice of the supreme court of
Dakota territory and presiding judge of the second judicial district, being
present and presiding. The docket was called and court then adjourned until the
next day, On the 18th, the case of J. F. Van Dooser vs James Stephenson was
called, and on motion of James Hand, attorney for plaintiff, a judgment by
default was taken against the defendant for the amount claimed in the complaint
together with cost of suit. The judgment was for $188.07 damages and $10.93
cost. This action was brought upon a promissory note given by defendant at
Rochester, Minnesota, on the 12th day of May, 1865, payable to the order of Van
Dooser & Hitchcock, with interest at twelve per cent per annum, and the note had
upon it a ten cent revenue stamp. The summons in this case was served by John
McClellan, and Moody and Hand appeared as attorneys associated with James A.
Hand. At this term of court, on motion of James A. Hand, John Bippus was
admitted to the bar upon a certificate that he had been admitted to practice law
by the circuit court of Huntington county, Indiana. The foregoing comprises all
the doings at the first term of the district court in Minnehaha county, and the
court adjourned on the 18th day of May. O. B. Iverson was clerk and Cyrus Walts,
deputy clerk.
The next term, the district court convened May 21, 1872, but the judge
being absent, nothing was done until the 23d, when Judge Brookings arrived. From
the record it appears that only two cases were called. In the first one, a
demurrer to the complaint was sustained and excepted to by the defendant, and in
the next a motion was made to set aside the complaint, which was overruled and
defendant given twenty days to file an answer, upon the payment of five dollars
costs, and court adjourned.
The third term, the district court convened on Tuesday, May 20, 1873, but
no judge was present, and the clerk adjourned the court until the next day, at
which time the Hon. A. H. Barnes, associate justice of the supreme court,
arrived and held the term. Melvin Grigsby was clerk and W. H. Holt was sheriff.
The first business appears to have been the admission to the bar of Albion
Thorne and M. H. Underwood upon motion of C. H. Winsor. There was quite a number
of cases upon the docket at this term, and it was the first term of court in
Minnehaha county during which the lawyers had anything to do. In one case,
Alfred Fuller vs C. L. Gardner, a change of venue was granted and the case sent
to. Lincoln county for trial. Continuances were granted in other cases. Four
decrees of divorce were rendered at this term of court, the first one being in
the case of James G. Botsford vs Angeline C. Botsford, and the judge in his
decree says: "The welfare of both parties demands a separation of the parties."
One of the other cases was entitled, Hattie M. Lansing vs Judson P. Lansing. The
marriage records of this date show, that immediately upon receiving their
respective decrees, James G. Botsford and Hattie M. Lansing were united in the
holy bonds of matrimony. The first grand jury of Minnehaha county was summoned
at this term, and consisted of the following persons: J. L. Phillips, foreman,
Joseph Dickson, J. C. Shepherd, J. C. Ervin, Seymour Hill, C. E. White, Thomas
Dickson, O. W.Douglass, D. W. Fitz, John O. Walker, A. Danielson, H. B.
Caldwell, John Olson, J. Ernstrom, J. Duganne, R. W. Talcott, R. G. Flemming, J.
Dunham and D. S. Goodyear. They found three indictments for petit larceny, and
two for assault and battery, and were discharged on the 23d day of May. During
this term of court, the pleadings in two or three cases required amending, and,
as the parties were anxious for a trial, it was decided to hold an adjourned
term in October. The case of O. B. Iverson vs C. E. White, was the only jury
case tried. This was an action to recover damages for logs, trees and cord wood
belonging to plaintiff and which he alleged the defendant had taken and
converted to his own use, and that they were of the value of $206. Winsor &
Bailey were attorneys for plaintiff and McLaury & Underwood attorneys for
defendant. The answer filed in this case is so artistically drawn that we give
it below: "The defendant answers to the complaint: 1st, That as to Count one of
said complaint, that no allegation contained therein is true. 2d, That as to
Count two, that he has no knowledge or information sufficient to form a belief
whether any one allegation thereof is true." The jury, composed of eleven men,
found for plaintiff and assessed damages at $67.10. During this term of court,
Mark W. Bailey was admitted to the bar. Albion Thorne was district attorney. On
the 1st day of October, 1873, the court convened pursuant to adjournment, A. H.
Barnes presiding, and two jury trials were had. On the 3d day of October, D. E.
Sherman and E. G. Wheeler were admitted to the bar.
Court convened for the fourth term of the district court, June 10, 1874.
Chief Justice P. C. Shannon, presiding judge; Albion Thorne, district attorney;
D. T. Scott, sheriff; Cyrus Walts, clerk. The grand jury was called June 11, but
only seven persons answered to their names; nine other persons were then
immediately summoned and the panel completed. Six indictments were found-three
for selling intoxicating liquors without a license, and one each for petit
larceny, extortion, and malicious mischief. Four of these indictments were
quashed on motion. There were four jury trials during the term, and the jury was
disharged June 16. C. J. Hadley was admitted to the bar June 11. At this term of
court the records show that Bartlett Tripp, Alexander Hughes and three or four
other attorneys were in attendance from outside the county.
Fifth term, May, 1875. On the 18th day of May, 1875, the district court of
Minnehaha county convened. Hon. G. G. Bennett, associate justice of the supreme
court, presiding judge; Albion Thorne, district attorney; A. J. Berdahl,
sheriff; Cyrus Walts, clerk. The grand jury commenced its work on the 19th, and
was discharged on the 24th day of May, having found no indictments. There were
four jury trials during this term, and in one of the cases-Almira Dixon vs Ira
Dixon-the following verdict was rendered: "We, the jury, find for plaintiff on
her complaint, and for the defendant on his counter claim." On the 21st day of
May, George J. Skinner was admitted to the bar. The court adjourned on the 24th.
Sixth term, May, 1876. The court convened on the 16th day of May. Hon. G.
G. Bennett, presiding judge; Albion Thorne, district attorney; A. J. Berdahl,
sheriff: Cyrus Walts, clerk. At this term of court there were five jury trials.
The grand jury did not find any indictments, and court adjourned on the 28th day
of May.
Seventh term, May, 1877. Court convened on the 15th day of May. Hon. P. C.
Shannon, presiding judge; Albion Thorne, district attorney; V. R. L. Barnes,
sheriff; Cyrus Walts, clerk. On account of some circumstances growing out of the
subdivision of the second judicial district, by which the counties of Minnehaha
and Lake were made one subdivision, the court adjourned until the 24th day of
May. On May 26, C. W. McDonald was admitted to the bar. The grand jury found two
indictments, one of them being against A. V. Corson, for the murder of Jack Van
Kirk. There were three jury trials. On the 1st day of June the court adjourned
until the 17th day of July, and on that day court convened with Judge G. G.
Bennett presiding. At this adjourned term, Corson plead guilty to manslaughter
in the first degree, and was sentenced to seven years hard labor in the
penitentiary at Fort Madison, Iowa. One civil cause was tried by jury. Court
adjourned on the 18th day of July.
Eighth term. May, 1878. Court convened May 21, Judge P. C. Shannon,
presiding. Albion Thorne, district attorney; V. R. L. Barnes, sheriff; Cyrus
Walts, clerk. At this term of court, five indictments were found by the grand
jury; there were four jury trials; eight indictments found prior to this term
were dismissed. Edwin Parliman, Justice A. Wilson and Lewis M. Estabrook were
admitted to the bar May 21; Alonzo Frizzell, May 22; Gorham P. Cross and Oscar
E. Rea, May 24; Martin A. Rathbone, May 25.
Ninth term, June, 1879. Court convened June 10. Hon. J. P. Kidder,
presiding judge; Alfred M. Flagg, district attorney; Henry Callender, sheriff;
Cyrus Walts, clerk. The grand jury was in session seven days, and found nine
Indictments. There were four civil cases tried to a jury and seven criminal,
resulting in four convictions and three acquittals. At this term of court
proceedings were commenced to obtain the right of way for the C., M. & St. Paul
Railway Co. The following persons were admitted to the bar: John T. Fish, Frank
L. Boyce, R. J. Wells, Henry M. Williams, Charles E. Flandrau, R. A. Murray,
George Rice, Edward R. Ruggles and E. E. Sterling.
Tenth term, December, 1879. At the 13th legislative session of the
Territory of Dakota an act was passed fixing the terms of the district court in
Minnehaha county (Minnehaha, Lake and McCook counties constituting one
subdivision) on the 2d Tuesday in June and December in each year, court to be
held at the county seat of Minnehaha county. There was a proviso attached, as
follows: "Provided, however, that the December term shall not be held except
upon order of the county commissioners of Minnehaha county." The necessary order
was made, and court convened December 9, Jefferson P. Kidder, presiding judge;
Alfred M. Flagg, district attorney; Henry Callender, sheriff; Cyrus Walts,
clerk. There were ten jury trials, six civil and four criminal. The grand jury
was summoned to appear on the 30th day of December, and was discharged on the
8th day of January, 1880, after having found sixteen indictments. Thomas S.
Free, Moulton J. Gilman, J. K. Doolittle and Alvin J. Bolster were admitted to
the bar. Court adjourned January 9.
Eleventh term, June, 1880. Court convened June 8. Hon. J. P. Kidder,
judge; Alfred M. Flagg, district attorney; Henry Callender, sheriff; Cyrus
Walts, clerk. On the 9th day of June court adjourned until the 16th day of June,
and on that day adjourned to the 20th day of July, and on the 21st day of July
the court adjourned to the 21st day of September, and made an order for
summoning a grand and petit jury to serve at that time. On the 21st day of
September the court ordered the jurors summoned, to appear on the 16th day of
December, when the court convened pursuant to adjournment. The grand jury found
seven indictments. One of them being against Thomas Egan for the murder of his
wife, and one against Henry Muchow, charging him with the murder of John
Fehlhafer on the 4th day of July preceding, by assaulting and striking him with
a neck-yoke, fracturing his skull, by reason of which he died on the llth day of
July. The trial of this case commenced on the 27th day of December, and the
prisoner was defended by C. H. Winsor and Thomas Wolf. On the 29th day of
December he was found guilty of manslaughter in the first degree, the jury
recommended him to the mercy of the court. On the 31st day of December he was
sentenced to four years imprisonment in penitentiary at Detroit, Michigan.
Pettigrew and Swezey appeared as attorneys for Egan, and the case was continued.
There were six jury trials during this term, five of them being civil cases. M.
R. Kenefick, J. H. Bottum, Charles E. Gregory and D. A. Brown were admitted to
the bar. Court adjourned December 31.
Twelfth term, April, 1881. An act was passed by the legislature in
February, 1881, by which Minnehaha and McCook counties were made a subdivision
of the fourth judicial district, and the terms of court fixed for the first
Tuesday of April, and the second Tuesday of November, in each year. On the 5th
day of April, the judge not being present, the clerk adjourned the court until
the next day, and on the 6th, for the same reason, adjourned the court until the
7th, and on that day adjourned without date. This was one of the results of the
deep snow, the winter preceding.
Thirteenth term, November, 1881. On the 8th day of November court
convened. J. P. Kidder, judge; J. W. Carter, district attorney; J. M. Dickson,
sheriff; Cyrus Walts, clerk. There were nine indictments found by the grand
jury, and ten cases tried to a jury-six civil and four criminal. One of the
criminal cases tried was the Territory of Dakota vs Thomas Egan, for the murder
of Mary Egan, his wife. The trial was commenced November 25, L. S. Swezey and C.
H. Winsor appearing for defendant. There were twenty-three jurymen on the
regular panel, but it was soon exhausted, and a special venire was issued for
forty additional persons. The examination of the jurymen drawn in this case, was
not completed until the 28th, when a jury was obtained and the trial proceeded.
At the conclusion of the evidence on the part of the prosecution, the
defendant's attorneys announced that they had no evidence to offer. The case was
argued to the jury on December 1, and on the same day a verdict of "guilty as
charged in the indictment" was rendered. George L. Wood, of Logan, was foreman
of the jury. A motion in arrest of judgment and for a new trial, was immediately
made by defendant's attorneys, which motion was denied by the court, and on
December 3, Egan was sentenced to be executed on Friday, January 13, 1882.
Execution of the judgment was stayed, upon the application of defendant's
attorneys, and the case was taken to the supreme court, where the judgment of
the district court was affirmed.
Thomas H. Fairfax, C. H. Wynn and Charles M. Harl were admitted to the bar
during the term. Court adjourned December 3.
Fourteenth term, April, 1882. By an order of Judge J. P. Kidder, the April
term of court was adjourned until April 11, at which time court convened. J. P.
Kidder, judge; J. W. Carter, district attorney; J. M. Dickson, sheriff; Cyrus
Walts, clerk. There were seven indictments found at this term of court, and
there were thirteen jury trials, six of them being criminal cases, resulting in
four convictions, one acquittal, and one disagreement of the jury. One of the
convictions, was that of Samuel Irvin charged with attempting to shoot one of
his neighbors. He was sentenced to fifteen months in the penitentiary at
Detroit, Michigan. On the 29th day of May, Thomas Egan was sentenced to be
executed on the 13th day of July.
During this term of court W. H. Crow, Jackson B. Young and Andrew C.
Phillips were admitted to the bar.
Fifteenth term, November, 1882. Court convened on the 14th day of
November. J. P. Kidder, judge; J. W. Carter, district attorney; J. M. Dickson,
sheriff; Cyrus Walts, clerk. At this term of court thirty indictments were
found, but nearly all of the persons indicted plead guilty, and were fined fifty
dollars and cost, amounting to $60.30 in each case. These indictments were for
selling intoxicating liquors. There were fifteen jury trials-twelve civil, and
three criminal cases resulting in one conviction and two acquittals. Charles A.
Rounds, Herbert Taft Root, Aaron A. Bryan, Harry Lacy, Paul Watson and E.
Everett Savage were admitted to the bar. Court adjourned December 1.
Sixteenth term, April, 1883. The 3d of April was the day fixed by law for
the opening of the court; but no judge being present, the court was adjourned to
the 4th, and on that day adjourned to the 5th for the same reason. On the 5th
the court convened, J. P. Kidder, presiding judge; J. W. Carter, district
attorney; J. M. Dickson, sheriff; Cyrus Walts, clerk; T. G. Brown, stenographer.
At this term of court there were eight civil cases tried to a jury, and three
criminal. The grand jury found twenty-one indictments. Pleading guilty in most
of the cases, and receiving a fine of fifty dollars, indicates that the
indictments were for selling intoxicating liquors. Peter V. Coffernoll, Jesse
W. Boyce, Zane Biggs, Eugene W. Coughran and Frank W. Little were admitted to
the bar. Court adjourned April 18.
On the 2d day of October, 1883, Judge Kidder died in St. Paul and there
was no court held in Minnehaha county in November, in consequence of his death.
Judge Edgerton made an order for a special term of the district court to
be held June 21, 1883; but no jurors were summoned, and the records show there
was no business done except to grant a divorce, and court adjourned the day it
convened.
Seventeenth term, April, 1884. On the first day of April court convened.
Hon. Cornelius S. Palmer, associate justice of the supreme court, presiding
judge; J. W. Carter, district attorney; J. M. Dickson, sheriff; Cyrus Walts,
clerk; T. G. Brown, stenographer. The grand jury found twenty-one indictments,
and was discharged on the 12th. During the term there were thirty-one jury
trials- nineteen civil and twelve criminal-nine convictions and three
acquittals. This was one of the important terms of the district court. One of
the civil causes tried was that of Rose McBride vs City of Sioux Falls, claiming
five thousand dollars damages for injuries received owing to a defective street;
C. H. Wynn and J. W. Jones were attorneys for the plaintiff, and A. Frizzell and
Bartlett Tripp for the defendant. The trial resulted in a verdict for the
defendant. On the 16th day of April, Alfred M. Flagg pleaded guilty to
embezzlement, and was sentenced to four years in the penitentiary. Samuel Irvin,
who had served a term in the penitentiary for shooting at one of his neighbors,
was again tried upon the charge of assault with intent to kill; the offense
being connected with the same affray, the trial resulted in a verdict of simple
assault.
The following action was taken on the first day of this term of court upon
the death of Judge J. P. Kidder: C. H. Winsor moved and the Court ordered, "that
a committee of five members of the Minnehaha bar be appointed to prepare and
report to the court suitable and appropriate resolutions upon the death of the
Hon. Jefferson P. Kidder, late associate justice of the supreme court of this
territory and judge of the fourth judicial district." The Court appointed as
such committee, E. Parliman, W. A. Wilkes, H. H. Keith, T. S. Free and F. L.
Boyce. On the 29th day of April, Hon. Edwin Parliman presented the following
resolutions:
"Resolved, that the supreme court of this territory, the district court of
the fourth judicial district, the bar and the people of this territory have
sustained in the death of the Hon. Jefferson P. Kidder the loss of an honorable
and upright judge; that his long judicial career in this territory has been
marked by great industry, high ability and incorruptible integrity, and in the
termination of his long public career universal regret is felt and universal
sympathy extended; that in this slight tribute to his memory we can but
inadequately express the loss sustained by his death; that his life and labors,
characterized as they were by honor, industry and the fullest integrity, are
left for the future, and stand as an encouragement to those of us who survive
him, showing" that success in life depends more upon integrity and good faith
than upon more brilliant accomplishments."
After the presentation of the above resolutions, remarks were made by the
judge and members of the bar, and the resolutions were ordered to be spread upon
the records of the court.
Hosmer H. Keith, Dana Reed Bailey, Romeo H. Start, T. W. Noyes, Charles L.
Brockway, Joseph W. Jones, R. B. Smith, Herbert L. Greene, Henry M. Avery, James
B. French, Scott Ransom, Martin A. Butterfield, Delmore Elwell, Sutton E. Young
and W. S. Wynn, were admitted to the bar.
At this term of court, the case of Artemas Gale vs Mamie G. Shillock, et
al., was tried by the court. It involved the title to a valuable tract of land
in the then southerly limit of the city.
The greater portion of the indictments at this term of court were for
selling intoxicating liquors, and were treated as formerly, the parties being
lined.
An order was made by Judge Palmer that special terms of court be held on
the 26th day of July and the 23d day of August, but the records do not show that
any business was done.
Eighteenth term, November, 1884. Court convened November 11. C. S. Palmer,
judge; J. W. Carter, district attorney; J. M. Dickson, sheriff; Cyrus Walts,
clerk; T. G. Brown, stenographer. The grand jury found thirteen indictments, and
were discharged November 15. Fifteen civil and five criminal cases were tried to
a jury. At this term of court the case of Wm. T. Henton vs the City of Sioux
Falls was tried. This was an action for damages received by the plaintiff by
reason of coming in contact with a telephone wire while riding along Phillips
avenue. The verdict was for the defendant. The case of the Territory vs E. G.
Smith was also tried. Smith and Clampit were pork packers in Sioux Falls, and
Smith claimed that Clampit had got away with some of the partnership funds, and
with a drawn knife induced Clampit to make his check for $250. Smith was
indicted for extortion. The trial excited a good deal of interest, and was well
tried by J. W. Carter for the prosecution and C. H. Winsor and H. H. Keith for
the defense. But it seemed that Smith had the most friends and the verdict of
the jury was in effect, that Smith adopted the proper method to adjust their
partnership accounts. Clampit left this vicinity about the time the verdict was
rendered. At this term of court the case of Mamie G. Shillock, et al., vs R. F.
Pettigrew, et al., was tried. This case involved the title to 160 acres in the
most populous resident portion of the city. The defendants prevailed, and since
then the title has been confirmed in the defendants. The following persons were
admitted to the bar: Samuel L. Tate, Albert T. Free and Arthur C. Phillips.
Court adjourned January 2, 1885.
Nineteenth term, April, 1885. Court convened April 14. C. S. Palmer,
judge; E. G. Wright, district attorney; J. M. Dickson, sheriff; Cyrus Walts,
clerk; T. G. Brown, stenographer. One criminal and fourteen civil cases were
tried to a jury. At this term of court several cases of more than ordinary
interest were tried. Among them were the cases of S. M. McCormack vs Andrew C.
Phillips; Ole Langness vs Justin A. Pettigrew, involving the question of the
defendant's right to maintain his milldam across the Big Sioux at Baltic at the
height he had built it; John A. Bankson vs the City of Sioux Falls, claiming
damages in the sum of $5,000 for personal injuries he had received owing to snow
and ice being permitted to remain upon the sidewalk on Dakota avenue. In the
last mentioned case a verdict was rendered for the defendant. On March 7, 1883,
the territorial legislature passed a law that clerks of the district courts
should be elected in each organized county in the territory. At the November
election of the same year J. B. Cloudas was elected for Minnehaha county, and at
this term of court, through proper proceedings, he politely invited Cyrus Walts
to vacate the office of clerk. Judge Palmer held that the legislature had no
authority to make such a law; that Congress had given the judges of the supreme
court in the territory the right to appoint their clerks, and he retained Mr.
Walts. A. C. Biernatzki, S. H. Sibley and Rudolph Schultz were admitted to the
bar. Court adjourned July 9.
Rules governing the practice in the fourth judicial district, (thirty-two
in number) were adopted July 9, 1885, by Judge Palmer.
Twentieth term, November, 1885. Court convened November 10. C. S. Palmer,
judge; E. G. Wright, district attorney; J.M. Dickson, sheriff; Cyrus Walts,
clerk; T. G. Brown, stenographer. The grand jury found eight indictments, and
was discharged December 12. Nineteen civil and two criminal cases were tried to
a jury. On December 1, the following appears in the record:
"In view of the fact that this is the day appointed for the funeral of
Thomas A. Hendricks of the State of Indiana, late Vice President of the United
States, and out of respect for him and the high position he occupied, I move
that this Court do take a recess from 12 o'clock noon, until two and half
o'clock P. M., the hour set apart for the funeral. E. G. Wright, District
Attorney."
The Court ordered recess taken as requested.
Although this term of court was a busy one, no cases of public interest
were tried. Park Davis, Alfred Beard Kittredge, Roger W. Cooley and Wm. E. Howe
were admitted to the bar. Court adjourned December 23.
Twenty-first term, April, 1886. Court convened April 13. C. S. Palmer,
judge; E. G. Wright, district attorney; J. M. Dickson, sheriff; Cyrus Walts,
clerk; T. G. Brown, stenographer. The grand jury found six indictments and were
discharged April 17. Eight civil and two criminal cases were tried to a jury.
April 21, Judge Bartlett Tripp took the place of Judge Palmer until April 28. J.
Ryan, Edwin R. Young and Matt B. Kelley were admitted to the bar. Court
adjourned May 4.
Twenty-second term, November, 1886. Court convened November 29. C. S.
Palmer, judge; E. G. Wright, district attorney; J. M. Dickson, sheriff; Cyrus
Walts, clerk; T. G. Brown, stenographer. The grand jury found eleven indictments
and were discharged December 3. One criminal and twenty-one civil cases were
tried to a jury. At this term of court the case of Francis Wiren against the
City of Sioux Falls, claiming $5,000 damages for personal injuries received by
reason of a defective sidewalk on Phillips avenue, was tried, and a verdict for
the defendant was rendered. Quite a number of the cases tried at this term of
court were hotly contested, but were of no particular interest, except to the
parties involved. Robert Copeland, Joseph Kirby, A. D. Collier, E. A. Sherman,
J. G. Eddy, Charles Wilson Smith, Charles E. McKinney, John H. Fernyhough and
Charles P. Bates were admitted to the bar. Court adjourned December 18.
Twenty-third term, April, 1887. Court convened April 12. C. S. Palmer,
judge; A. A. Polk, district attorney; John Sundback, sheriff; Cyrus Walts,
clerk; T. G. Brown, stenographer. The records do not show that a grand jury was
summoned at this term of court. Sixteen civil cases were tried to a jury. A good
many of the cases tried were important to the parties, as they involved large
amounts, but were not of such character as to excite public interest. The case
of E. G. Wright against the county, growing out of a disagreement as to the
amount of the salary he should receive as district attorney, was tried to a
jury, and resulted in a disagreement, and the case was continued. The case of A.
A. Polk against the county of Minnehaha, similar to that of E. G. Wright's, was
tried to the court and a judgment rendered in favor of the county, which was
afterwards reversed by the supreme court. This was the first term of A. A. Polk
as district attorney, and he took occasion to dismiss several criminal cases
from the docket, that had become too old to prosecute successfully. Benjamin
Wyckoff, Charles O. Bailey, Robert Buchanan and R. C. Hawkins were admitted to
the bar. Court adjourned April 30.
Twenty-fourth term, November, 1887. Court convened November 8. C. S.
Palmer, judge; A. A. Polk, district attorney; John Sundback, sheriff; Cyrus
Walts, clerk; E. P. White, stenographer. The grand jury found fourteen
indictments. Six criminal and twenty-six civil cases were tried to a jury. This
was a term of important cases and large verdicts. Judge Spencer was called in to
try the causes growing out of the failure of the first National Bank. Eight
verdicts were rendered for the plaintiffs in the following sums: $1,110, $1,260,
$1,417, $1,500, $2,500, $4,400, $5,340 and $16.706. In one case involving
$12,000, a verdict was returned for defendant, and in two other important cases
verdicts were rendered for the defendants. The supreme court reversed a good
deal of the work of this term of court. U. S. G. Cherry, Peter J. Rodge, S. W.
Sullivan and Cyrus Walts were admitted to the bar. Court adjourned January 25,
1888.
Twenty-fifth term, April, 1888. Court convened April 10. C. S. Palmer,
judge; A. A. Polk, district attorney; John Sundback, sheriff; Cyrus Walts,
clerk; E. P. White, stenographer. The grand jury found two indictments and was
discharged April 14. One criminal and twelve civil cases were tried to a jury.
Judge John E. Garland took the oath of office on the 11th day of April and
presided at this term of court. He appointed W. D. Stites clerk of the court, on
April 17, the appointment to take effect April 19. At this term of court John O.
Meara was tried for forgery, and after the prosecution had put in its case, the
court advised the jury to return a verdict of acquittal, which was done
accordingly. Charles J. Porter, Win. H. Wilson, Edward E. Burns and Samuel J.
Barrows were admitted to the bar. Court's djourned July 30.
On September 1, 1888, a revision of the rules governing the practice in
the fourth judicial district was made, and they were spread upon the records.
Twenty-sixth term, November, 1888. Court convened November 13. John E.
Garland, judge; A. A. Polk, district attorney; John Sundback, sheriff; W. D.
Stites, clerk; E. P. White, stenographer. Upon the opening of the court an order
was made, adjourning court until November 19, and on that day the business of
the term commenced. The grand jury found thirteen indictments, and was
discharged December 5. Only one criminal case was tried to a jury, which
resulted in an acquittal. Twenty-three civil cases were tried to a jury. The
case of the Plymouth County Bank vs Frazier Oilman, which had for a long time
stood at the head of the calendar, was tried. Two cases growing out of the M. I.
Jacquith failure were tried at this term of court; and two verdicts were
directed in important cases growing out of the First National Bank failure. This
term of court was a fighting term from the beginning to the end, and although
the cases were not of great public interest, the parties and their attorneys
were more than usually belligerent. Ralph W. Hobart was admitted to the bar.
Court adjourned January 14.
Twenty-seventh term, April, 1889. Court convened. April 9. Frank R.
Aikens, judge; C. O. Bailey, district attorney; John Sundback, sheriff; W. D.
Stites, clerk; E. P. White, stenographer. The grand jury found eight
indictments, and was discharged April 16. There were thirteen jury trials during
this term, eleven of them being civil cases. E. G. Weight succeeded in getting a
verdict against the county in the sum of $355.50. This was the third trial of
the case-the jury disagreeing the first time, and rendering a verdict against
him upon the second trial, which was set aside and a new trial granted. Comment
is unnecessary to establish the fact that E. G. Wright has some fighting
qualities in his make-up. This was a very quiet term of court-the cases tried
not involving large amounts, with one or two exceptions. It was the last term of
the district court in Minnehaha county. Upon the calendar for that term, the
names of eighty persons appear as attorneys. Frank H. Knapp, John H. Williamson,
Charles A. Gilday and Joseph H. Lord were admitted to the bar. Court adjourned
May 3.
CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, WITHIN AND FOR MINNEHAHA COUNTY.
The constitution of the State of South Dakota was adopted November 2,
1889, and South Dakota became a state on that day. Under the provisions of
article fifth of the constitution, the judicial powers of the state were vested
in supreme, circuit and county courts, and justices of the peace, and such
courts as might be created by law for cities and incorporated towns. Under the
provisions of the constitution, the state was divided into eight judicial
circuits, and Minnehaha county was placed in the second. There was no term of
district or circuit court in Minnehaha county in November, 1889, owing to the
change made in judicial matters by the adoption of the constitution. At the
first session of the legislature of the State of South Dakota, an act was
passed, transferring the business before the territorial district courts to the
circuit courts, and fixing the terms of the circuit courts of the state; and by
another act, two terms in each year, of the circuit court in Minnehaha county,
were provided for to be held on the fourth Tuesday in May, and the second
Tuesday in December.
First term, May, 1890. Court convened on the 27th day of May. Frank R.
Aikens, judge; C. O. Bailey, district attorney; W. D. Stites, clerk; John
Sundback, sheriff; E. P. White, stenographer. The grand jury found eleven
indictments, and was discharged June 10. Eight criminal cases were tried,
resulting in four convictions and four acquittals, thirty civil cases were tried
to a jury. Some important cases were tried at this term of court, but in the
greater number of them there was but a small amount in controversy. The case of
Maggie O'Rourk vs C. T. Jeffers and Porter P. Peck, was undoubtedly the most
important case of the term, and excited the most public Interest. It was an
action brought to recover $10,000 for personal injuries received by the
discharge of a cannon at the corner of Ninth street and Dakota avenue, during
the evening of the great ratification meeting of the election of R. F. Pettigrew
United States senator. Peck was relieved from any liability by a verdict of the
jury, under the direction of the court, and a verdict rendered against Jeffers,
in the sum of $9,500. The last that appears of this term of court in the records
is the following: "September 6, the case of Gilbert Hanson vs Red Rock Township
still on trial."
Second term, December, 1890. Court convened in the new court house for the
first time December 2. Frank R. Aikens, judge; D. R. Bailey, district attorney;
John Sundback, sheriff; W. D. Stites, clerk; E. P. White, stenographer. C. O.
Bailey having resigned the office of district attorney, D. R. Bailey was
appointed August 21, 1890, to fill out the unexpired term. At the November
election, 1890, Albion Thorne was elected clerk of the county and circuit
courts, and took the oath of office and commenced his official duties on the 6th
day of January, 1891. The old case of the Plymouth County Bank vs Frazier
Gilman, was again tried to a jury, resulting in a verdict for the defendant. The
grand jury returned five indictments, and was discharged December 12. There were
twenty-five jury trials-twenty civil and five criminal cases. The criminal cases
tried at this term of court were quite important, and some of them excited a
good deal of public interest. The case of the State vs Edward J. Mannix, charged
with embezzlement from the Western Union Telegraph Co., was thoroughly tried. C.
O. Bailey, W. H. Stoddard and D. R. Bailey for the prosecution, and C. H. Winsor
and Judge Carland for the defense. C. O. Bailey prepared the case for the
prosecution, and it was admirably done, and C. H. Winsor made one of his most
eloquent and pathetic appeals to the jury, for an acquittal of the defendant-
and the jury said "Amen." The case of the State vs Dr. C. P. Bissell, charged
with administering morphine, while under the influence of intoxicating liquors,
to B. P. Sheffer, thereby causing his death, was another interesting case. D. R.
Bailey for prosecution and Wynn & Nock for defendant. He was ably defended, and
the jury disagreed. In the case of State vs Annie Nelson, charged with burning
several stacks of wheat, the same attorneys appeared as in the Bissell case, and
the jury disagreed. Two other criminal causes were tried, one charging an
assault with a dangerous weapon, and one for burglary, in which verdicts of
guilty were rendered. , Some of the civil causes tried to a jury, were more than
ordinarily interesting. The case of Clark G. Coats vs H. L. Hollister-two old
friends-was hotly contested and a verdict rendered for the plaintiff in the sum
of $15,935.00. The counsel in this case were Judge Palmer, Park Davis and D. R.
Bailey for plaintiff, and Bailey & Stoddard and T. B. McMartin for defendant.
Another case of considerable interest, was that of J. A. Wilson vs Drs. Brown &
Tufts, the plaintiff bringing suit claiming that the defendants negligently
treated a fractured leg of plaintiff's and asking for a large sum in
compensation. The testimony in the case showed, that the unfortunate condition
of the plaintiff, was the result of his own negligence, and the jury found a
verdict for the defendants. John Howard Gates and David Winton were admitted to
the bar at this term of the court. Court adjourned January 31, 1891.
By an act of the legislature, approved March 7, 1891, the terms of the
circuit court in Minnehaha county were changed to the fourth Tuesday in April
and the first Tuesday in November.
Third term, April, 1891. Court convened April 28. F. R. Aikens, judge; D.
R. Bailey, state's attorney; John Sundback, sheriff; Albion Thorne, clerk; E. P.
White, stenographer. The grand jury found eighteen indictments-ten of them
against persons charged with selling intoxicating liquors. Two of these cases
were tried, resulting in one conviction and one acquittal. It was at this term
of court that the cases of Enos & Bailet vs the St. Paul Fire & Marine Ins. Co.,
and the Springfield Pire & Marine Ins. Co., were tried. These cases were
transferred from Deuel county, owing to the prejudice that had arisen there, in
reference to the matter in dispute and the parties connected with the cases. The
trial occupied the attention of the court more than two weeks, and resulted in a
disagreement of the jury in both cases. Every inch of ground was contested, and
the attorneys on both sides came to their work thoroughly equipped. Palmer &
Rodge appeared for plaintiffs, and Fauntleroy of St. Paul and H. H. Keith for
defendants. The jury was discharged June 6, and court adjourned June 10. Charles
E. Sutton and William Milchrist were admited to the bar.
Fourth term, November, 1891. Court convened November 17. F. R. Aikens,
judge; D. R. Bailey, state's attorney; John Sundback, sheriff; Albion Thorn,
clerk; E. P. White, stenographer. The grand jury found thirty-one indictments-
a majority of them charging persons with selling intoxicating liquors as a
beverage. The grand jury was discharged December 15. At this term of court there
were twenty-seven cases tried to a jury, five of them criminal cases, resulting
in three convictions and two acquittals. Both of the cases in which there were
no convictions, the persons were charged with selling intoxicating liquors as a
beverage, and the proof seemed conclusive of their guilt. If the charge had been
that of highway robbery, or forgery, the same measure of proof would have
resulted in a prompt conviction. The civil cases tried to a jury were not very
important even to the parties themselves, except in two or three instances. Enos
& Bailett vs the St. Paul Fire & Marine Ins. Co., was tried again, the same
attorneys appearing as the term preceding, with the addition of D. E. Powers for
plaintiffs. The plaintiffs obtained a verdict. These suits were brought to
recover, on policies of insurance, against loss by fire, on a stock of goods
owned by plaintiffs in Gary, Deuel county. Mr. Enos was indicted in Deuel county
for setting fire to the building in which the goods were kept. Of this charge he
was acquitted. To say the least, the circumstances were peculiar in connection
with this fire. It occurred on Sunday evening, and Mr. Enos testified in
substance, that he went to church was called out to get some article wanted at
his store, and when he went into the store he was assaulted and tied with a rope
to some fixture in the store, his person robbed of a large sum of money, and the
store fired by his assailants. There was a good deal of testimony in reference
to the manner he was tied, the condition he was found in, and the character of
his injuries. The cases growing out of this fire were expensive, and the tax
payers of Deuel county had reason to feel sore over it. Deuel county paid
Minnehaha county about $1,200 for court expenses during the trials. At this term
of court, the case of David Winton vs Charles Huntimer, was tried to a jury, and
a verdict rendered for the defendant. Low water in the lake on section 3, in
Taopi, was the primary cause of the trouble from which the suit originated.
Winton was aiding a client to get possession of a crop raised on land from which
the water of this lake had receded. His client plowed the land and Huntimer
sowed it and cut the grain, and both parties wanted the crop-and a collision
occurred. Winton claimed, that Huntimer used a pitchfork on him, instead of the
bundles of grain, and Huntimer claimed, and Winton admitted, he had prodded
Huntimer with his fork. Captain Stoddard tried the case for Huntimer, and was
unusually funny, and convinced the jury that it was only a little fracus after
all, that the parties undoubtedly enjoyed the diversion, and only a bold, bad
jury would think for a moment of taking the case into serious consideration. The
case of H. H. Wood vs W. H. Ridell, et al, was also tried. Palmer & Rogde for
plaintiff, Keith & Bates and Judge Carland for defendant. The jury was
empanelled in this case December 3, and rendered a verdict for plaintiff
December 11. This was a Red Rock case, involving the boundary line that had been
established by a recent survey of the township. It was a sharp trial, and
participated in not only by the parties directly interested, but by others who
thought that the verdict in this case, would to a certain extent at least,
affect their interests. The testimony as to the location of the stakes and
mounds established by the government, was of a conflicting character, so much
so, that the jurors could justify any verdict they might render in accordance
with their prejudices for or against a resurvey.
The case of Margaret Laura de Stuers vs Alphonso Eugene Lambert de Stuers,
an action for a divorce, was tried by the court. William Henry Stoddard and
William Henry Wilson were attorneys for the plaintiff, and Joseph Lawrence
Glover, Alpha Fremont Orr, and David Edward Powers were attorneys for the
defendant. It was a great case in all its surroundings. Count William Zborowski,
by his constant labor in aid of the plaintiff's cause, added a piquancy to the
trial that was relished by the spectators. Here is a list of the names of
persons whose testimony was used in the trial of the case: Jeremiah McCraith;
William Waldorf Astor; Charles, Count de Bylandt; Countess Mary Seilern; Edward
Gould Peters; Harriet Thiemard; Jean Martin Charcot, professor at the Salpitnere
Hospital; Arthur Astor Carey; Henry J. Vinkhuysen, physician to H. M., the King
of Holland; James Louden, formerly minister of the colonies and governor general
of the Netherlands, East Indies; Adrienne Van Riemsdyk; Carel, Baron Van
Heeckeren Van Kell, minister of the Netherlands in Portugal; Mathieu Van Lier,
consul general of the Netherlands at Paris, France; Charles Ephrussi; Emilie
Charles Wauters; Henry de Weede, secretary of the Netherlands at Paris; Mina and
Isidore Ansermet; Mary Van den Heuvel; Elise Gahlenbeck; Charles Chevalaz,
butler; Charles Auguste Gamier Heldewier, minister plenipotentiary of the King
of the Belgians; Donald James Mackay, eleventh Lord Reay, late governor of
Bombay, late member of the Second Chamber of the States-General in the
Netherlands, peer of the United Kingdom of Great Britain; Alexis Delafoy and A.
Arnaud de Foiard. And still, some people blame Judge Aikens for granting a
divorce, when confessedly the parties were tangled up in this mess. It makes one
tired to look at the list. The divorce was granted, and soon after-in fact, Very
soon after-at the Cataract House, in the city of Sioux Falls, Margaret Laura de
Stuers and William Eliott Zborowski were united in the holy bonds of matrimony
by the Rev. John A. Cruzan. The happy couple went abroad and shortly after were
engaged in the courts at Paris trying to get possession of Countess Zborowski's
daughter by her former marriage. It is said that President Lincoln, getting
embarrassed in regard to the appointment of a postmaster-there being so many
applications, and so many endorsements recommending each candidate -had the
papers weighed, and appointed the man whose papers weighed the most. Well, the
writer is pretty tolerably well conversant with the testimony in this case, and
has come to the conclusion that the learned judge, in deciding the case, turned
the great president's method bottom-side up, and reversed his measure of proof.
Another divorce suit at this term of court was Pollock vs Pollock. It was
the bridegroom who came out to South Dakota to grow up with the country, and
finally settled down in the Queen City with the full determination to make this
his home for life. There is nothing on record that shows that he went so far as
to purchase a lot in the cemetery, but lots of people never prepare for death.
His father was wealthy, but the son was cautious and conservative, and occupied
a good deal of his time in sliding down hill, and reflecting upon what great
enterprise he would engage in. But lo, the bride cometh! She had with her two
little children. She had been a domestic in the family of the bridegroom's
father. The claim was desertion, but she followed him to his new home. Mr.
Pollock, soon after the trial, not finding an occupation that suited him,
returned to his father's house. Mrs. Pollock remained here longer than Mr.
Pollock. The divorce was granted. Selah.
On the 7th day of March, an act was passed reducing the number of grand
jurors from twenty-three to eight, and as there was no emergency declared this
was the first term of court under the new law. This change materially reduced
the expense incurred by a session of the grand jury, but the most important
feature is the fact, that the work before it can be performed more expeditiously
and with better re-suits. It requires five votes in the affirmative to find an
indictment.
I. G. Lawshe, N. M. Dahl and H. D. James were admitted to the bar.
Fifth term, April, 1892. Court convened April 26, 1892. F. R. Aikens,
judge; D. R. Bailey, state's attorney; John Sundback, sheriff; Albion Thorne,
clerk; E. P. White, stenographer. The grand jury was in session until the 11th
day of May, having found six indictments. Three of the persons indicted plead
guilty, the other three plead not guilty and were tried, and the jury found them
all guilty. Charles E. Bowman was tried at this term of court for having
procured an abortion, from which the victim died. The testimony in the case,
although circumstantial, tended strongly to establish the charge as made in the
indictment, but under the charge of the court the jury were restricted to
finding a verdict of manslaughter. He was found "guilty as charged in the
indictment." The code provides, that any person while engaged in committing a
felony causes death, without any design to cause death, is guilty of murder, and
any person while engaged in the commission of a misdemeanor causes death, is
guilty of manslaughter in the first degree. The indictment in this case was
designated as an indictment for manslaughter in the first degree, although it
charged Bowman with the actual commission of the offense of murder. The verdict
being "guilty as charged in the indictment," the court held that Bowman was
convicted of murder. A motion in arrest of judgment was made by counsel for the
defendant, and after the case had been argued by the attorneys on two occasions
the motion was granted and Bowman held for trial at the next term of court.
There was no demurrer to the indictment, and in such cases the code provides
that only two objections can be taken under a motion in arrest, viz., to the
jurisdiction of the court, and that the indictment does not state a public
offense. The court in this case had jurisdiction, and the indictment charged
murder. The learned judge before whom the case was tried was greatly perplexed
with the problem, but finally concluded to grant the motion declining to
sentence Bowman for manslaughter for which he was tried under the charge of the
court. This case was very ably defended by Winsor & Kittredge, and Captain W. H.
Stoddard with equal ability assisted the state's attorney in the prosecution. At
the next term of court this case was continued, for the reason that a witness
residing in Minnesota refused to come and testify for the prosecution. At the
next term of court the case was dismissed, as the same witness declared that she
would never again give her evidence in the trial of this case, and as without
her testimony the defendant could not be convicted, and the State being
precluded from taking her deposition, the prosecution had to be abandoned. There
were twelve civil causes tried to a jury, but as a whole they were devoid of
public interest. The case of Peter Carlson vs the Sioux Falls Water Company was
successfully tried by the plaintiff. The suit was brought for personal injuries
received by the plaintiff while in the employ of the defendant, by the "caving
in of a ditch" in which he was at work. The plaintiff claimed $5,000 damages,
and the jury found a verdict for him in that amount. There is a passage of
scripture that in substance advises us to agree with our adversaries before they
get into a fighting attitude. In this case, after it had been continued over one
term of court, the attorney who brought the suit offered to take $1,000 in
settlement. It shows how careless he was, and how little he appreciated the
injuries his client had received. The case was appealed to the supreme court and
a new trial was granted, but the case was then dismissed by the plaintiff. Frank
Chapin Langden was admitted to the bar.
Sixth term, November, 1892. Court convened November 15. Frank R. Aikens,
judge; D. R. Bailey, state's attorney; John Sundback, sheriff; Albion Thorne,
clerk; E. P. White, stenographer. The grand jury found thirteen indictments and
was discharged December 6. Five of the persons indicted plead guilty, and four
of them were sent to the penitentiary and one sentenced to pay a fine.
One plead not guilty, was tried and found guilty, and sentenced to the
penitentiary. There were nine civil cases tried to a jury. The case of D. L.
McKinney vs John Sundback, growing out of the McMillan failure in Sioux Falls a
few years before was fought inch by inch and resulted in a disagreement of the
jury. Winsor & Kittredge were attorneys for the plaintiff and McMartin and F. L.
Boyce for the defendant. One or two other cases were contested "from start to
finish" but were not of public interest, and the term taken as a whole, was a
tame one. Webster C. Haight, George A. Jeffers, Henry A. Muller, Lyman P. Bayard
and R. H. Warren were admitted to the bar. Court adjourned on the 21st day of
December.
Seventh term, 1893. Court convened April 25. Frank R. Aikens, judge; D. R.
Bailey, state's attorney; George A. Knott, sheriff; Albion Thorne, clerk; E. P.
White, stenographer. The grand jury found ten indictments, and was discharged
May 12. There were six criminal cases tried-four of them resulting in verdicts
of guilty, one not guilty, one disagreement of the jury. There were eighteen
civil cases tried to a jury, resulting in eleven verdicts for the plaintiffs and
seven for defendants. There were no cases of public interest at this term of
court. Harry B. Carleton was admitted to the bar May 12, and F. R. Sidwell, May
31. These admissions were the last ones in the Minnehaha county circuit court
before the law of 1893 went into effect, requiring all persons not previously
admitted to the bar to obtain a certificate of good moral character from some
court of record in the state, and to pass a satisfactory examination before the
supreme court before a license would he granted to practice as an attorney and
counselor at law. Court adjourned May 31.
Eighth term, 1893. Court convened November 21. Frank R. Aikens, judge; D.
R. Bailey, state's attorney; George A. Knott, sheriff; Albion Thorne, clerk; E.
P. White, stenographer. Upon the grand jury being called, challenges were made
to the array, by persons who had been held to appear at this term charged with
criminal offenses. The challenges were based upon the fact that only 85 names,
instead of 200 as required by law, were in the box at the time the jury was
drawn. The challenge was sustained by the court and all the persons making the
challenge were held in bail to appear at the April term, 1894. Three persons,
charged with having committed public offenses, waived all objections to the
jury, and their cases were considered. November 23, the grand jury reported two
indictments and "one bill not found" and were discharged. The court was
adjourned on the same day until January 2, 1894, at 2 o'clock P. M.
January 2, 1894. The court again convened. Joseph W. Jones, who had been
elected to succeed Judge Aikens in the second judicial circuit, appeared and the
oath of office was administered to him by Judge Parliman. George M. Higby was
appointed official stenographer, and the real business of the November term of
1893 began. Twenty-two civil cases were tried to a jury, resulting in thirteen
verdicts for the plaintiffs and nine for the defendants. One of the important
trials at this term of court was that of State vs Dr. A. M. Fisher charged with
manslaughter. It was a case of abortion, and the victim died on the 13th day of
March, 1893. The following day, upon learning of her death, he took the first
train out of the state. He was indicted at the April term, 1893, of the circuit
court in Minnehaha county, and was finally located at Doniphan, Missouri,
brought back to Sioux Falls and committed to jail June 14, 1893. The writer,
then state's attorney, assisted by Judge Aikens, appeared for the state and
Judge John E. Garland for the defendant. The trial lasted four days and resulted
in a disagreement of the jury. The case was again tried in the latter part of
May, 1894, by the same attorneys, and lasted three days and again resulted in a
disagreement of the jury, which at both trials had been about evenly divided.
Soon after this trial Fisher obtained bail, after having been in jail for nearly
a year, and at the next term of court the case was dismissed. There was only one
other criminal case tried at this term and resulted in a verdict of guilty.
Court adjourned Februarv 10, 1894.
Ninth term, 1894. Court convened April 24. Joseph W. Jones, judge; D. R.
Bailey, state's attorney; George A. Knott, sheriff; Albion Thorne, clerk; George
M. Higby and Miss Mary Strohecker, stenographers. The grand jury found nineteen
indictments, and were discharged May 19. There were thirty-six jury trials,
resulting in twenty-four verdicts for the plaintiffs and ten for the defendants;
in two cases the jury disagreed. Seven criminal cases were tried, resulting in
five verdicts of guilty, one not guilty, and one disagreement of the jury. One
of the persons found guilty was J. Westley Hartwick, who had become quite
notorious in Sioux Falls and vicinity, having been charged with a good many
petty offenses, and it was a relief to the community that he was given a home in
the penitentiary for a while, at least. Court adjourned June 4.
Tenth term, 1894. Court convened November 20. Joseph W. Jones, judge; D.
R. Bailey, state's attorney; George A. Knott, sheriff; Albion Thorne, clerk;
George M. Higby, stenographer. At the opening of the court, sixteen criminals
confined in jail were brought into court; no challenge being made, the grand
jury were sworn and charged by the court as to their duties. Twenty-one
indictments were found. Pour persons plead guilty as charged in the indictment,
and five cases were tried to a jury, resulting in three verdicts of guilty, one
disagreement of the jury, and one verdict of not guilty. In addition to the
trials of criminal cases from Minnehaha county, was the trial of the Rev. John
T. C. Wilson. indicted for rape in Lincoln county and brought to Minnehaha
county upon a change of venue. He had been tried once in Lincoln county and
found guilty, and sentenced to fifteen years in the penitentiary. The supreme
court granted him a new trial, which took place in Minnehaha county, as
mentioned above. M. E. Rudolph, state's attorney of Lincoln county, appeared for
the state, and O. S. Gifford and Judge Palmer for the defendant. The case was
ably tried by the attorneys on both sides, and the jury returned a verdict of
not guilty. Twenty-five civil cases were tried to a jury, resulting in thirteen
verdicts for the plaintiffs and ten for the defendants, and two disagreements of
the jury. Court adjourned January 25, 1895.
Eleventh term, 1895. Court convened April 23. Joseph W. Jones, judge;
Peter J. Rogde, state's attorney; C. W. Hubbard, sheriff; Harry B. Carleton,
clerk; George M. Higby, stenographer. At thls term of court sixteen indictments
were found by the grand jury. Five criminal cases were tried to a jury,
resulting in three convictions and two acquittals. Four persons plead guilty.
Two indictments were quashed, owing to an informality in drawing the grand jury.
One of the cases tried was against Mark Scott, publisher of the Sioux Falls
Journal, for criminal libel. This case was tried on both sides with great zeal
and vigor, but the jury returned a verdict of guilty, and Scott was fined $100.
Twenty-two civil cases were tried to a jury, resulting in eleven verdicts for
the plaintiffs and ten for the defendants, and in one case the jury disagreed.
The most important civil cases tried at this term were Kirby vs Howie, and Wm.
Plankinton, assignee, vs M. Grigsby, the verdict in the last case being nearly
S9,000. Two cases, in which the plaintiffs asked for damages against the City of
Sioux Falls for changing the street grade in front of their property, were
tried; in the case of W. P. Carr, there was a verdict for the city, and in the
case of Frank Gillett the jury disagreed. The grand jury was discharged May 13,
and court adjourned June 25.
Twelfth term, 1895. Court convened November 19. E. G. Smith, judge; Peter
J. Rogde, state's attorney; C. W. Hubbard, sheriff; Harry B. Carleton, clerk;
George M. Higby, stenographer. Judge Smith presided at the trial of a few cases
that could not be tried by Judge Jones. On the 2d day of December Judge Jones
assumed the duties of judge. The grand jury reported to the court in twenty
cases, finding seven indictments, and discharging thirteen persons who had been
bound over and was discharged December 18. Two criminal cases were tried to a
jury, resulting in convictions. Forty-three civil cases were tried to a jury.
The court directed six verdicts for the plaintiffs and four for the defendants.
Seventeen verdicts were returned for the plaintiffs and thirteen for the defend-
ants, and the jury disagreed in three cases. The petit jury was discharged
January 24, 1896. This was a business term of court, and more cases were tried
than at any former term of court in the county, and although there were some
quite important trials to the litigants there was none of public interest. Court
adjourned on the 8th day of February,1896.
Thirteenth term, 1896. The first day of the term was Tuesday, April 28,
but Judge Jones being necessarily absent, Clerk Carleton, under direction of the
judge, adjourned court until three o'clock P. M., April 30, at which time court
convened. J. W. Jones, judge; Peter J. Rogde, state's attorney; C. W. Hubbard,
sheriff; Harry B. Carleton, clerk; George M. Higby, stenographer. The
legislature df 1895 aholished the grand jury, except when petitioned for and
ordered by the court, and this was the first term of court without a grand jury
in attendance. The state's attorney filed three informations. One criminal and
twenty civil cases were tried to a jury. The court directed one verdict for
plaintiff, and three for defendants, and the jury returned nine verdicts for the
plaintiffs and six for defendants and disagreed in one case. The criminal case
resulted in a verdict of not guilty. The jury was discharged May 29, and the
court adjourned June 12, 1896.
Fourteenth term, 1896. November 17th, the first day of the term, Judge
Jones was absent, and the clerk adjourned the court until the 18th, and then
until the 19th, for the same reason. On the 20th, Judge Jones returned, and the
court convened on that day. The following officers of the court were present: P.
J. Rogde, state's attorney; C. W. Hubbard, sheriff; H. B. Carleton, clerk;
George M. Higby, stenographer. Twenty-one civil cases were tried to a jury.
Eleven verdicts were returned for the plaintiffs, nine for the defendants, and
in one case the jury disagreed. The case of A. S. Sherwood vs the City of Sioux
Falls,for injuries received through a defective sidewalk, was tried at this
term, and a verdict rendered for the plaintiff in the sum of $2,500. Joseph
Kirby was fined $300 for contempt of court. Almost any other member of the
Minnehaha county bar, if fined this amount, would have been compelled to board
with the sheriff, for a time at least, but Joe drew his check and smiled as
though nothing unusual had occurred. There were only a few criminal cases tried
during the term. Two persons pleaded guilty to the charge of burglary and were
sent to the penitentiary. The jury was discharged December 24,and the court
adjourned January 7, 1897.
Fifteenth term, 1897. Court convened April 27. J. W. Jones, judge; C. P.
Bates, state's attorney; Den Donahoe, sheriff; W. J. Crisp, Jr., clerk; G. M.
Higby, stenographer. Owing to the fact that criminal charges of a peculiar
character had been made against certain persons, State's Attorney Bates asked
the court to order a grand jury to be summoned, which request the court complied
with. The grand jury returned eight indictments, one of them being against the
Rev. Richards of Dell Rapids. This case was continued, and the defendant
afterwards left the state and a disgusting trial was avoided. The grand jury was
discharged May 10. Two persons pleaded guilty to petit larceny and were fined
$10 each. One person was found guilty of setting a prairie fire contrary to law,
and fined $10. The only other criminal case tried was the State vs Wemple, who
was charged with embezzlement. The jury found him not guilty. Every ex-states
attorney of Minnehaha countv will endorse the statement that it is impossible to
convict a person of the crime of embezzlement in this county; the greater the
embezzlement and clearer the proof on the part of the prosecution, the greater
the number of jurymen who will vote for acquittal. Twenty-one civil cases were
tried to a jury. Fifteen verdicts were rendered for the plaintiffs, and five for
the defendants, and in one case the jury disagreed. The jury was discharged June
9, and the court adjourned June 24.
Special term. A special term was called July 12, for the purpose of
considering the matter of the disbarment of Joe Kirby. The hearing occupied one
day only, and the court ordered that he be suspended from the practice of law in
all the courts of the state for the term of two years.
Sixteenth term, 1897. Court convened December 7. J. W. Jones, judge; C. P.
Bates, state's attorney; Den Donahoe, sheriff; Walter J. Crisp, Jr., clerk; G.
M. Highy, stenographer. There were twenty-five civil cases tried to a jury.
Fourteen verdicts were rendered for the plaintiffs, and eleven verdicts for the
defendants. This term of court is remarkable for the fact that two homicides
occurred during the term, and the persons charged with committing the offenses
were tried during the term. James Garrington was tried on the charge of murder
of one Alfred Erickson, and the jury found him guilty and fixed the penalty of
death; but the case was appealed to the supreme court and a new trial granted.
The other was the case of an affray between Gilbert Gilman and John McDonald,
shortly after which affray McDonald suddenly expired. Gilman was tried for
manslaughter, but the jury found him not guilty. A brief account of both these
cases will be found elsewhere in this work. The jury was discharged February 9,
and the court adjourned February 14.
Seventeenth term, 1898. Court convened May 24. Joseph W. Jones, judge; C.
P. Bates, state's attorney; Den Donahoe, sheriff; W. J. Crisp, Jr., clerk; G. M.
Higby, stenographer. Thirty-one civil cases were tried to a jury. Eighteen
verdicts were rendered for the plaintiffs, and thirteen for the defendants. Six
informations were fíled by the state's attorney. One person was sent to the
penitentiary, and two found not guilty. Since the grand jury has been dispensed
with, the state's attorney finds it a delicate matter to determine what to do
with a great many of the cases where parties charged with criminal offenses have
been held by justices of the peace to answer to informations which may be filed
against them in the circuit court. In most of the cases he has no opportunity of
hearing the testimony against them, and it naturally follows that more verdicts
of not guilty will be rendered in criminal cases than there would be if the
cases were examined by a grand jury. The jury was excused June 27, subject to
the call of the clerk of the court, and the court adjourned July 2.
Two terms of court have been held since the May term, 1898, but as the
officers of the court were the same and nothing out of the usual routine
transpired and no trials took place of public interest, except the retrial of
James Garrington, we bring this chapter to a close with the statement that the
legislature in 1899, authorized the county commissioners to petition the court
for the drawing of a grand jury, and that upon the petition of State's Attorney
Bates the court ordered a grand jury for the May term, 1899.
PROBATE COURT.
Ole B. Iverson was the first probate judge in this county. He was elected
treasurer and judge of probate in 1871, and qualified, but there is no record of
any business done by him during his term of office. In 1872, H. J. Whipple was
elected, and remained judge of probate until January, 1875. On the first page of
the record appears a copy of the bond of W. R. McLaury as administrator of the
estate of Julius Heubschman, dated July 12, 1873, although a little further on
is the record of business having been transacted on the 5th of that month. C. K.
Howard was probate judge in 1875-6. During the first five years after the
probate court had been established, its business was merely nominal, the records
down to June, 1876, occupying only twenty-five pages. This is readily accounted
for by the scant population within its jurisdiction, the small number of deaths
occurring, and the still smaller number of those dying who had enough property
to administer upon. In 1877-8, C. W. McDonald held the office of probate judge,
and he was succeeded by R. C. Hawkins, who retained the same from January 1,
1879, until January, 1890, when Edwin Parliman, who had been elected county
judge with probate jurisdiction, took charge of the office, and by re-elections
from time to time held the office until January 1, 1897. The first will probated
was executed June 19, 1874, by Sylvia Herrick, and witnessed by Wm. Van Eps and
T. H. Brown. She died June 25, 1874. Previous to 1890, there had been one
hundred and fifty-eight estates and about seventy cases of guardianship
considered by the probate court. During the first five years of Judge Parliman's
administration there were not less than four hundred and thirty estates and
about one hundred cases of guardianship acted upon. The estate of Dr. J. L.
Phillips, one of the pioneers of Sioux Falls, is the largest that has come under
the jurisdiction of this court to settle, except a few estates of people who
have died outside of the state having property in Minnehaha county requiring
administration.
COUNTY COURT.
Sections nineteen, twenty and twenty-one of article five of the
constitution of South Dakota read as follows:
SEC. 19. There shall be elected in each organized county, a county judge
who shall bc judge of the county court of said county, whose term of office
shall be two years until otherwise provided by law.
SEC. 20. County courts shall be courts of record and shall have original
jurisdiction in all matters of probate, guardianship and settlement of estates
of deceased persons, and such other civil and criminal jurisdiction as may be
conferred by law; provided, that such courts shall not have jurisdiction in any
case where the debt, damage, claim or value of property involved shall exceed
one thousand dollars except in matters of probate, guardianship and the estates
of deceased persons. Writs of error and appeal may be allowed from county to
circuit courts, or to the supreme court, in such cases and in such manner as may
be prescribed by law; provided, that no appeal or writ of error shall be allowed
to the circuit court from any judgment rendered upon an appeal from a justice of
the peace or police magistrate for cities or towns.
SEC. 21. The county court shall not have jurisdiction in cases of felony,
nor shall criminal cases therein be prosecuted by indictment; but they may have
such jurisdiction in criminal matters, not of the grade of felony, as the
legislature may prescribe, and the prosecutions therein may be by information or
otherwise as the legislature may provide.
The legislature at its first session in 1890, enacted a law which défined
the jurisdiction of the county courts, provided for the practice therein, and
fixed the terms and salary of the judges.
This law provides that county judges be elected once in two years, at the
general election; that the county courts have jurisdiction in all matters
pertaining to the naturalization of citizens, the probate of wills, the
administration and settlement of estates of deceased persons, the guardianship
of minors, insane and incompetent persons, and the sale of real estate by
executors, administrators and guardians; that they have concurrent jurisdiction
with the circuit courts in cases wherein justices of the peace have
jurisdiction, being limited in amount according to the population of the
counties, as follows; in counties of ten thousand the county courts have
jurisdiction of cases involving not to exceed one thousand dollars, with a less
population not to exceed five hundred dollars, and a concurrent jurisdiction
with the circuit courts in all criminal offenses where the punishment is not
imprisonment in the penitentiary, or death, or the judgment might be the removal
from office.
This law also provides that for the transaction of other business than
matters relating to probate jurisdiction, county courts shall hold two terms of
court annually, namely, on the first Tuesdays of January and July, provided,
that the terms of the circuit courts in the respective counties do not
interfere, in which case the county judge may order a term of court to be held
at any time within three months after the time fixed by law.
The legislature, in 1893, enacted a law that took away all jurisdiction
from the county courts in counties having a population of less than twenty
thousand, except "exclusive original jurisdiction in all matters of probate,
guardianship and settlement of estates of de-ceased persons." Minnehaha and
Lawrence are the only counties in the state that have a population of twenty
thousand, and consequently are the only counties in which these courts retain
the jurisdiction as conferred in the act of 1890.
Under the provisions of the constitution, Edwin Parliman was elected judge
of the county court of Minnehaha county in November, 1889; Judge R. C. Hawkins
was also a candidate. In 1890 Judge Parliman was re-elected and again in 1892
and 1894.
At the time fixed for the first term of the county court, the circuit
court was in session, and Judge Parliman, on the 18th day of August, 1890,
ordered a general law term of the county court to be held September 33, and the
jurors were drawn and summoned to serve at that time. On the 23d day of
September, court convened. D. R. Bailey, district attorney; John Sundback,
sheriff; W. D. Stites, clerk; E. P. White, stenographer. The first jury trial
was that of John Johnson vs George Burnside, but the jury could not agree upon a
verdict, and was discharged. U. S. G. Cherry was attorney for the plaintiff and
Winsor & Kittredge for defendant. One other case was tried to the jury, that of
George Proctor vs M. Grigsby, and verdict rendered for the plaintiff. The jury
was discharged September 30. Some criminal business was done at this term of
court, but nothing of importance. The court adjourned November 1, 1890.
Second term, March, 1891. Court convened March 10. E. Parliman, judge; D.
R. Bailey, state's attorney; John Sundback, sheriff; Albion Thorne, clerk; E. P.
White, stenographer. For the same reason as at the last term, court could not be
held in January. At this term there were ten jury trials-five civil and five
criminal cases. In the criminal cases three were convicted, one acquitted, and
in one case the jury disagreed. There were fifty cases upon the calendar. The
jury was discharged March 27.
Third term, July, 1891. Court convened July 7. E. Parliman, judge; D. R.
Bailey, state's attorney; John Sundback, sheriff; Albion Thorne, clerk; E. P.
White, stenographer. No jury trials were had at this term.
Fourth term, March, 1892. Court convened March 16. E. Parliman, judge; D.
R. Bailey, state's attorney; John Sundback, sheriff; Albion Thorne, clerk; E. P.
White, stenographer. There were only two criminal cases tried, one resulting in
a verdict of guilty, and the other of not guilty, it being a liquor prosecution
in which the evidence was conclusive on the part of the prosecution, and when
the jury went out to consider the case, the defendant's attorney said: "There
will be a verdict of guilty returned within ten minutes." Fourteen civil cases
were tried to a jury, resulting in eleven verdicts for the plaintiffs and two
for the defendants, and one special verdict. The last case was tried on the 30th
day of March.
Fifth term, July, 1892. Court convened July 5. E. Parliman, judge; D. R.
Bailey, state's attorney; John Sundback, sheriff; Albion Thorne, clerk; E. P.
White, stenographer. This was a short, unimportant term, with only three cases
tried to a jury, resulting in verdicts for the plaintiffs. The last case was
tried on the 18th day of July.
Sixth term, January, 1893. Court convened January 3. E. Parliman, judge;
D. R. Bailey, state's attorney; George A. Knott, sheriff; Albion Thorne, clerk;
E. P. White, stenographer. There were nineteen jury trials, resulting in sixteen
verdicts for the plaintiffs, two for the defendants and one disagreement of the
jury. The last case was tried January 21.
Seventh term, July, 1893. Court convened July 5. E. Parliman, judge; D. R.
Bailey, state's attorney; George A. Knott, sheriff; Albion Thorne, clerk; E. P.
White, stenographer. Twenty-three civil cases were tried to a jury; nineteen
verdicts were returned for the plaintiffs and four for the defendants. The jury
was discharged July 17.
Eighth term, March, 1894. Court convened March 12. E. Parliman, judge; D.
R. Bailey, state's attorney; George A. Knott, sheriff; Albion Thorne, clerk;
George M. Higby, stenographer. There were five jury trials-one criminal, with a
verdict of guilty, and four civil, with three verdicts for the plaintiffs, and
one disagreement of the jury. The last case was tried March 17.
Ninth term, July, 1894. Court convened July 31. E. Parliman, judge; D. R.
Bailey, state's attorney; George A. Knott, sheriff; Albion Thorne, clerk; G. M.
Higby, stenographer. There were no jury trials at this term of court.
Tenth term, February, 1895. Court convened February 12. E. Parliman,
judge; P. J. Rogde, state's attorney; C. W. Hubbard, sheriff; Harry B. Carleton,
clerk; G. M. Higby, stenographer. There were six jury trials at this term of
court, with three verdicts for the plaintiffs, two for the defendants and one
disagreement of the jury.
Eleventh term, July, 1895. Court convened July 2. E. Parliman, judge; P.
J. Rogde, state's attorney; C. W. Hubbard, sheriff; Harry B. Carleton, clerk;
Gr. M. Higby, stenographer. There were seven civil cases tried to a jury. The
jury was discharged on Tuesday, the 9th day of July.
Twelfth term, March, 1896. Court convened March 3. E. Parliman, judge; P.
J. Rogde, state's attorney; C. W. Hubbard, sheriff; Harry B. Carleton, clerk; T.
G. Brown, stenographer. There were eight civil cases tried to a jury, and seven
verdicts rendered for the plaintiffs, and one for the defendant. The jury was
discharged March 16.
Thirteenth term, July, 1896. Court convened July 7. E. Parliman, judge; P.
J. Rogde, state's attorney; C. W. Hubbard, sheriff; H. B. Carleton, clerk; T. G.
Brown, stenographer. One civil case was tried to a jury, and verdict rendered
for the plaintiff. The case of State vs Sexton was tried at this term, and
verdict rendered against the defendant. Court adjourned July 17.
Fourteenth term, February, 1897. Court convened February 2. W. A. Wilkes,
judge; C. P. Bates, state's attorney; Den Donahoe, sheriff; Walter J. Crisp,
Jr., clerk; T. G. Brown, stenographer. Eleven civil cases were tried to a jury.
Five verdicts were rendered for the plaintiffs and five for the defendants, and
in one case the jury disagreed. On the 10th day of February the jury was
discharged.
Fifteenth term, July, 1891. Court convened July 13. W. A. Wilkes, judge;
C. P. Bates, state's attorney; Den Donahoe, sheriff; W. J. Crisp. Jr., clerk;
Thomas Wilkes, stenographer. Five civil cases were tried to a jury. Three
verdicts were rendered for the plaintiffs, one for the defendant, and in one
case the jury disagreed. The jury was discharged July 23.
Sixteenth term, February, 1898. Court convened February 28. W. A. Wilkes,
judge; C. P. Bates, state's attorney; Den Donahoe, sheriff; W. J. Crisp,
Jr.,clerk; Ernest Wilkes, stenographer. Seven cases were tried to a jury. Two
verdicts were rendered for the plaintiffs, and live for the defendants. Court
adjourned March 11.
Seventeenth term, July, 1898. Court convened July 19. W. A. Wilkes, judge;
C. P. Bates, state's attorney; Den Donahoe, sheriff; W. J. Crisp, Jr., clerk;
Miss Alice Bassett, stenographer. Only two cases were tried, and court adjourned
July 25.
Eighteenth term, February, 1899. Court convened February 14. W. A. Wilkes,
judge; C. P. Bates, state's attorney; Den Donahoe, sheriff; W. J. Crisp, Jr.,
clerk. This was a short term, with only a few cases.
Nineteenth term, July, 1899. Court convened July 11, and adjourned July
15. The judge and other officers of the court with the same as the term
preceding. A few jury trials were had.