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History of Adair
County, Iowa,
and its People.  1915.

Volume 1.

  
 

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CHAPTER VI

THE BENCH AND BAR OF ADAIR COUNTY

THE DISTRICT COURT

In October, 1855, the clerk of the District Court of Adair County received notice from E. H. Sears, district judge of the Sixth Judicial District of Iowa, appointing court to be held in Adair County November 19, 1855, also ordering that a grand jury be summoned for special term and a petit jury be also summoned, and that the clerk should issue a venire to the sheriff for each of the juries.  This order was dated October 13th.

In accordance with this notice the court met at the residence of Azariah Root, in what was then Washington Township, on November 19th as specified.  There were present E. H. Sears, judge;  D. M. Valentine, clerk;  an d Abner Root, sheriff.

The first business transacted was the impaneling of a grand jury.  When completed the following men were listed:  Charles Friend,  Alfred Jones,  William Corr,  James Roberts,  James S. Ewing,  John Ammon,  James Ray,  Abraham Rutt,  Titus Sullivan,  John Ireland,  John Hillan,  William Stinson,  Manning Drake,  William Thomas and Thomas Hodgson.  John Ireland was appointed foreman.

It is said that this first grand jury retired to the cool shade of a straw-stack to consider the business in hand.  The first case brought before the court was entitled State of Iowa vs. Larue Norris and was an indictment for Larceny.  The defendant was called to court, but failed to appear.  In consequence, on motion of Boyd J. Stickel, the district attorney, the sureties of Larue Norris, namely William P. Norris and Marshall T. Norris, were declared to have their bond for his appearance forfeited.

The first civil case to come before the court bore the title of John Gilson vs. John Stevenson.  This was an action for damages and was continued from this session to the March term, at which time it was stricken from the records by order of the judge.

Terms of the District Court were held twice during the following year, 1856, one beginning on March 30th and the other October 5th.  The business at both of these terms was very light.  At the first term there were present Judge Sears;  Theodore Smith, clerk;  And Abner Root, sheriff.

On October 5, 1857,  the District Court was held at the courthouse in Fontanelle, with Judge Sears upon the bench.  Cal Ballard was clerk and Levi C. Elliott was sheriff.  There being no district attorney present the court appointed S. M. Tucker to act in that capacity.  John H. Cooper, a licensed attorney of the state of Kentucky, sought and obtained permission to practice at the bar of this state.  The most important case entered before this court session was a divorce proceeding, the first in Adair County.  John Cears, by his attorneys, McPherson and Cummings, asked to be divorced from his wife, Phoebe Cears.  The defendant failed to appear at the trial, so the court gave decision in favor of the plaintiff.

At  the regular term of the court beginning March 29, 1858, upon the application of Henry Kinsinger and Christian Augustine, Judge Sears granted them the necessary papers, and they being duly sworn, became citizens of the United States.  These were the first naturalization papers granted in Adair County.  In the case of Munger & Brother vs. William Schweer, the first petit jury was impaneled in this county.  It consisted of the following men: B. J. Stickel, foreman;  E. B. Sullivan,  James P. Kenny,  James Murphy,  Thomas M. Johnson, Andros Jenkins,  Jeremiah Rinard,  Fielding Key, W. H. Easton,  John Murphy,  S. W. Pryor and J. P. Salmon.

E. H. Sears remained judge of the District Court until the spring of 1859, when he was succeeded by J. H. Gray.  The first term of court held in Adair County by the latter commenced upon April 25, 1859.  when there were present besides the judge, W. B. Hall, clerk;  Levi C. Elliott, sheriff;  and P. Gad Bryan, district attorney.  Judge Gray held the regular terms of court until October 14, 1865, when he died.  He was remembered as one of the most efficient judges of the early times and a man of great business acumen.  The vacancy caused by his demise was filled by the appointment of C. C. Nourse, by the governor, and on April 9, 1866, he held a regular term of the District Court in this county.  This was the only time he held the court here as he resigned his office on August 1, 1866.  Hugh W. Maxwell was elected to the office of district judge at the fall election of 1866 and was re-elected in 1870, occupying the bench for a period of eight years.  He was succeeded by John Leonard.  In the year 1886 Adair County became part of a circuit, on which three judges were elected to serve in the different counties.  At this time the Circuit Court as a part of Adair County became a thing of the past.  O. B. Ayers,  A. W. Wilkinson and J. H. Henderson composed the first triumvirate of judges chosen for the circuit of which this county was a part.  In 1891 J. H. Applegate took the place of Ayers.  John A. Storey was on the bench in the year 1896.  James D. Gamble came in about 1896 also.  Edmund Nichols came to the bench about 1902.  The judges now serving on the bench are J. H. Applegate,  L. N. Hays and W. H. Fahey.  They were chosen in 1914.  Adair County is in the Fifth Judicial District of Iowa for the year 1915, this district being composed of the following counties:  Adair,  Marion,  Warren,  Madison,  Dallas,  Guthrie.

John Leonard served only one term and was defeated for re-election by W. H. McHenry, who served two terms, 1868-76.  John A. Storey served as district judge part of one year by appointment of the governor, to fill a vacancy.  He afterward removed to Omaha, where he had a successful law practice for some years and then bought a large interest in a national bank of Indianola, where he still resides.

THE CIRCUIT COURT

By the year 1868 the business of the District Court had grown to such an extent that it was nearly impossible for that court to attend to all of it.  Accordingly in the year mentioned the Iowa General Assembly passed a law creating a new tribunal, which went under the name of Circuit Court.  This newly created court was given the power to try all cases of appeal from justices, mayors and other inferior courts, all civil cases of a certain character, and have general supervision and control of all probate matters.  By the law it came into existence on the first Monday in January, 1869, commencing on the 4th of that month.  Frederick W. Mott, the first judge, was elected in the fall of 1868.

The first case heard in this court in Adair County was a law case entitled W. C. Warner vs. Charles Galbraith.  Kilburn & Grass appeared as attorneys for the plaintiff, and J. H. Bailey for the defendant.  A jury was called to try the case, composed of the following men:  O. E. Brown,  E. R. Paris,  J. Noah,  John Easton,  J. H. Standley,  Daniel Smith,  Jacob Bally,  Gorton Shanklin,  T. M. Ewing and Samuel Thompson.  After hearing the evidence in the case they retired under the charge of Bailiff M. E. Black, and after deliberation, returned to the court with a verdict for the defendant.

In 1872 John Mitchell was elected to the office of circuit judge and  in 1876 was re-elected.  During his term of office the second circuit was created by an act of the General Assembly and Adair, with other counties, placed therein.  This was at once organized and S. A. Calvert appointed to the vacant judgeship, and at the next general election was elected to the office and was re-elected in 1880.  In 1884 Calvert was again elected and served until the abolishment of the office in 1886.  He was the last to fill this position in Adair County.

THE COUNTY COURT

By an act of the General Assembly of Iowa in 1851 courts were established in each county in the state which were at the time organized and also provided for the institution of the court in every county thereafter organized.  The county judge, the head of this court, took the position of the county commissioners and the probate judge, both of which offices were abolished.  The court was composed of the judge, clerk, prosecuting attorney, and sheriff, and it was given all the jurisdiction and power now in the hands of the board of supervisors, auditor, clerk of the courts, and the probate branch of the business of the Circuit Court.

The first probate matter on record in this county is noted in the minute book of the County Court.  This was on November 17, 1857, when at a session of the court, presided over by D. M. Valentine, acting county judge, the following case came up for consideration:  James P. Jordan had died on October 12, 1857, without making a will, nor having done anything about the administration of his estate.  His widow did not appear to claim the executorship and Josiah P. Clark, his next of kin, appeared and asked the court to appoint him as executor.  After hearing his request the court appointed him to settle the estate of the deceased.

The first to occupy the position of county judge was G. M. Holaday, who was elected to that office at the time of the organization of the county in April, 1854.  He served in this capacity for one year.  He settled in Jefferson Township in 1853, locating upon section 26.  He was from the State of Indiana.  He, while acting as county judge, with D. M. Valentine, county surveyor, and Abram Rutt, laid out the Town of Fontanelle for the county.  In the fall of 1856 he left here for Des Moines, in order to educate his children.  He deserted his wife and children there and left the country with another woman, presumably going to the western coast.

J. J. Leeper was the successor of Judge Holaday, being elected in the spring of 1855.  He served for two years.  He came here from near Zanesville, Ohio, in 1854, and settled in Jackson Township on section 34, where he lived for two years.  He then removed to Washington Township and in 1865 removed to Afton, Union County.  He later removed to New Mexico.

At the August election of 1857 Manning Drake was elected to the position of county judge by a majority of eleven votes.  However, he failed to qualify and D. M. Valentine, then prosecuting attorney, acted as county judge until election of 1858.  Valentine was the second settler in the Village of Fontanelle.  He came to that place in the summer of 1855.  He was born in Shelby County, Ohio, June 18, 1830.  After removing to West Point, Tippecanoe County, Ind., with his parents, in 1836, and to Wea Plains in 1837, staying in the latter place until 1854, he removed to Winterset, Ia., and from thence to this county.  He was admitted to the bar at Winterset.  In 1859 he left Adair County and went to Leavenworth, Kan., and in 1860 to Franklin County, in the same state.  Here he remained until 1875, when he went to Topeka.  He was elected judge of a district court in Kansas and also served as a member of the Legislature in Kansas from Franklin County in 1862.  He also served as state senator from the same district in 1863-4.  He later was associate justice of the Supreme Court of Kansas.  He was married August 26, 1855, to Martha Root of Adair County.

F. M. Corr was elected judge of the County Court in 1858 and was re-elected in 1859, serving until 1861.  He was born and reared in Monroe County, Indiana, and came to Adair County in October, 1855, making his settlement in Washington Township.  There he resided until 1858, when he removed to Fontanelle, having been elected county treasurer.  He resigned this position to accept the position of county judge which he filled until the first of 1862.  He shortly afterward removed to Clark County, Iowa, and from there to Pocahontas County, Iowa.  At one time he taught school in Washington Township.

Azariah Root was the next to fill the position of county judge, being elected to the office on October 8, 1861.  At this time a large part of the power of the office had been given to the newly created board of supervisors.  Mr. Root was re-elected in 1863 and served until 1864.  He was a native of Pittsfield, Mass., and was born there in 1791.  His father, whose name was also Azariah, was the descendant of an old French family, a connection of Racine, and served in the Continental Army under George Washington, and was present at the hanging of Major Andre, the British spy, and died at the age of ninety-eight years.  His mother was Ellen Barbour, of Scotch descent.  When Azariah was about twelve years of age his parents moved to Ohio, where he grew to manhood.  He was a volunteer under General William Henry Harrison in his campaigns against the Indian allies of England in the War of 1812 to 1815.  In 1839 Mr. Root moved to Wyandotte, Ohio, and lived there until 1852, when he emigrated to Madison County, Iowa.  In the spring following he came to Adair County and settled upon section 11 in Jackson Township.  He then moved to section 12 and later to Fontanelle.  He was postmaster during the war and died in the town in 1874 at the age of eighty-three.  He was married in Ohio in 1824 to Myra Case and to them were born nine children, namely:  Abner,  Clarissa,  Amanda,  Elizabeth,  Ellen,  Parthenia,  Martha Eby,  Sarah and Myra.  Mrs. Root's wife died in the winter of 1860 at Fontanelle and is buried with her husband in the cemetery in Jackson Township.

On the resignation of Azariah Root from this office the board of supervisors appointed W. H. Brainard to fill the vacancy.    He took the position in July, 1864, and held it until the first of the following year.

At the election of 1864 R. F. Murphy was elected to the office, but refusing to qualify, the board of supervisors appointed James C. Gibbs to fill the vacancy.  In June, 1865, Mr. Gibbs resigned the position and the board appointed R. E. Ewing to succeed him.  At the election of 1865 Ewing was elected, but on January 16, 1866, he resigned the position and was succeeded by J. J. Hetherington, who was also appointed by the board.  In the autumn of 1866 Hetherington was duly elected to the same office and served until January 1, 1868, when he was succeeded by N. S. Taylor.  N. S. Taylor was the last county judge of Adair County.  During his term the office was abolished by the General Assembly of the state, but the party holding that position at the time of the change was made ex-officio county auditor.

IMPORTANT CRIMINAL CASES

There have been many crimes committed in Adair County, but very few of them are of enough importance to deserve lengthy notice.  The train robbery which occurred in this county and was supposed to have been the work of the famous Jesse James gang of robbers was one of the important.  This is narrated in another part of this volume.  Another of the early crimes worthy of note was the murder of Henry C. Vandewater by Philip Augustine.  In the District Court which met on the 11th of February, 1873, and held until the 19th of the same month, this case came up for trial and occupied nearly the entire session.  The evidence introduced in the trial established the deed to have occurred in the following manner:  Henry D. Vandewater, the victim, was notorious as a "bad man," one who toted a gun and was continually looking for trouble.  Augustine was a brother-in-law of Vandewater and it is said was in continual fear of him.  In March, 1872, a family quarrel arose and Vandewater picked Augustine as a particular mark of his venom.  At one time he followed Augustine into the latter's house and wanted to fight, backed by his brother.  He picked up a stick and started to assault Augustine.  The aged father, however, interfered with the attacking party, seized a butcher knife, and informed Vandewater that he would kill him if he attacked Augustine.  This caused the assailant to retreat.  He then took to annoying his brother-in-law in every possible way, dogging his cattle, and on the evening before his death, when passing the house, while Mrs. Augustine was driving in a flock of sheep, set his dog upon them.  At her remonstrance he grabbed a stick and drove her into the yard, saying at the same time that he would thrash h--l out of her and kick her so that she could not stand up.  Shortly before this, while Vandewater was engaged in the attempt to set fire to Augustine's fences about harvest time, and being remonstrated with by the owner, he drew a revolver and drove him into the house.  On the day before the crime was committed he had threatened a little boy of Augustine's, who was herding stock, with cutting his throat.

On the morning of his death he rode over to Augustine's house to see him about some disputed grass, making threats that he would kill him before he would let him have it, although it had been given Augustine by his father.  He rode up to the low fence before Augustine's house, and setting sideways on his horse, faced the latter.  Augustine asked why he had dogged his cattle and was answered that he would dog them whenever he pleased and that Augustine could not help himself.  The latter said that he could help himself.  Whereupon Vandewater replied, "If you have anything that will shoot faster than I have, bring it out."  With this he half drew his revolver from his hip pocket.  Augustine then warmed him away from the premises and started toward the house.  He reached into the door, grasped his Enfield rifle, leveled it, and killed Vandewater with the bullet.  He was shortly afterwards arrested and lodged in jail.  The attorneys for the state at the trial were: General Given, the district attorney,  Bailey & Grass,  and J. C. Naylor.  The defendant had the services of Leonard & Mott,  Gow Brothers and Col. James Rany.  The jury in this celebrated case was composed of the following men:  S. C. Vance,  A. L. Harrison,  W. H. Aspinwall,  J. Sias,  L. C. Elliott,  James Peters,  E. L. Drake,  A. J. Mears,  William Rivenburgh,  O. D. Foote,  W. M. Stowell and J. L. Vert.  The jury, after hearing the evidence in the case, convicted Augustine of second degree murder and the defendant was sentenced to the penitentiary for a term of ten years, the lightest sentence which the law permitted for the offense.

Augustine went to Fort Madison, Ia., to serve his sentence.  However, as public sentiment was entirely upon his side, a petition for pardon, headed by the names of the judge, district attorney and all the jury, was circulated, and obtaining the requisite number of names, was forwarded to the governor of the state.  The governor immediately pardoned Philip Augustine.  This pardon was issued six or eight years after Augustine was sentenced, just before the expiration of his term.

THE MENTGER MURDER

In March, 1894, occurred the murder of Myer Mentger at Fontanelle by D. C. Clayman, whose reputed home was in Des Moines.  Mentger was a merchant in the Town of Fontanelle and Clayman was an unwelcome suitor of Ida Mentger, a daughter, who was also a helper in the store.  Clayman procured a revolver and entered the store just at evening.  He fired his first bullet at Ida Mentger, wounding her in the arm, then turned the revolver upon himself, inflicting a slight head wound.  Mr. Mentger came from the rear of the store and attempted to wrest the revolver from Clayman when he was shot in the abdomen.  He died in a very short time.  Clayman was tried a month later and was convicted of murder in the second degree and sentenced to fifteen years in the penitentiary.  He served his full time.

THE BAR

The Adair County Bar has ever been a reputable one.  Lawyers who have practiced their calling in this county have, with possibly a few exceptions, been of high class and of recognized ability and integrity.  There has not been so many of the practitioners here as in larger counties, but there has been a sufficient number to keep the legal wheels of the county running smoothly.

The first lawyer to come to Adair County was W. H. Brainard.  He came to Fontanelle in the spring of 1858.  He was elected recorder in the year 1864 and served until 1866.  He later removed to Hopkins, Mo.

In the fall of 1858 James C. Gibbs and D. M. Valentine were both admitted to the state bar at Winterset and were the next of the profession to come to Adair County.

J. J. Cooper, an attorney, came to Adair County during the winter of 1857-8 and located at Fontanelle.  He was a first class lawyer and came from Lexington, Ky., where he had studied his profession with John C. Breckinridge.  He was a native of Pennsylvania.  After a few years' residence in Adair County he went to Winterset.

G. F. Kilburn, an attorney, came to Fontanelle about the year 1858 and entered into the practice.  His principal business was in the way of real estate sales and collections.  He moved to Creston afterwards where he died in 1883.

S. W. Armstrong came to this county in 1858.  He filled the position of county treasurer at one time.

Waldo Adams read law here in the office of G. F. Kilburn and, upon his admission to the bar, went into partnership with the same.  He afterwards removed to Creston with Mr. Kilburn.

T. W. Neville practiced law in Greenfield for about three years, coming here in 1869.

M. M. Rutt practiced law in the Town of Fontanelle, beginning about 1871.  He built up quite a large practice here.  He later operated a lumber yard at Atlantic, Cass County, and later removed to Salt Lake City, Utah.

James Naylor was admitted to the bar at Fontanelle in 1870 and practiced until 1875, when he left.  He was a man of dissipated habits.  He later forsook the law for newspaper work in Dakota.

James Rany practiced law at Fontanelle in connection with various other lines of business.  He was admitted to the bar in 1870 and in 1873 to the United States bar.  He discontinued the practice in 1875 and entered other business pursuits.

J. C. McDermot, an attorney, came from Pennsylvania and located in Greenfield during the year 1875 and engaged in the practice.  He was a good lawyer and of good reputation.  He remained in the place until 1878 when he moved to Kansas, where he continued the practice of his profession.

J. C. Naylor came to Greenfield from Warren County about 1876.  He afterwards moved to Creston and also from that place to whereabouts unknown.

About the same time George Seevers came from Winterset and began practice, but not meeting with much success he returned to Winterset.

John A. Storey came to Greenfield in 1875 and began practice.  Afterward removed to Fontanelle and went into partnership with H. Grass.  He was a very successful attorney, representative for Adair County, later a judge of the District Court, a prominent attorney at Omaha, Neb., to which place he moved, and now president of a national bank at Indianola, Ia.

H. Grass came to Fontanelle in the year 1896 from Albany, Richland County, Ill.  He had served six years in the State Senate of Illinois, was a soldier in the Black Hawk war, and was at the capture of Black Hawk when he made his last fatal stand on the Bad Axe in Wisconsin.  He later moved to Corpus Christi, Tex., and now lives at Alvin, near Galveston.

John M. Moore, an early attorney in Adair County, was born in Westmoreland County, Pa., on May 26, 1836.  He came to Adair County in January, 1878.

H. B. Young came to this county in April, 1880, and in 1883 began practice at Fontanelle.

Harry E. Don Carlos came to Greenfield in 1883 and entered into a law partnership with D. W. Church, which continued until May, 1884.  He then practiced alone.

James E. Andrews began practice here in 1881.

Daniel W. Church was admitted to the bar in 1875 in Greenfield, Ind.  He came to Adair County, Ia., in the same year.  At the time of his coming he was the oldest attorney at the county seat.

A. L. Hager came to Greenfield in November of the year 1875 and engaged in practice with his brother, C. E. Hager, and J. A. Storey.  In 1877 the firm became A. L. Hager & J. A. Storey and in 1881 became Gow & Hager.  George L. Gow came to Fontanelle in 1870 and engaged in practice with his brother.

John G. Culver came to Fontanelle in 1873 and taught school for two years and then commenced the study of law.  He was admitted to the bar at Greenfield in 1879.

John W. McCormick first went to Fontanelle to practice and in August, 1882, came to Greenfield.

F. M. Brown came to Greenfield in 1874 after having been admitted to the bar in Clinton County, this state.

Robert Mickey came to Greenfield in the fall of 1881 and at once entered upon the practice of law.

Fred O. Hinkson began the law and real estate business here in September, 1883.

William S. Wishard began practice here in 1880, having received his legal education in Des Moines and Iowa City.

THE PRESENT BAR

The resident members of the Adair County Bar are: D. W. Church,  H. J. Chapman,  Frank B. Wilson,  George D. Musmaker,  J. C. Hoyt,  D. A. Crowley, of Greenfield;  Clarence Williamson,  O. W. Witham, also of Greenfield;  George B. Lynch,  F. E. Gates,  S. B. Gwin and Harry D. Byers, of Adair;  Charles T. Launder and E. W. Adams, of Fontanelle.  The practicing non-resident members of the bar are:  F. O. Hinkson,  Carl P. Knox,  R. H. Dosh,  P. L. Sever, O. W. Morgan and Roy Knox of Stuart;  C. E. Berry and A. M. Fagan of Casey.
 

 

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