There have been two courts of record in Iowa. The district court,
having general jurisdiction of civil and criminal matters, existed prior to the
organization of the county. In 1868 the circuit court, having exclusive jurisdiction in
probate matters and concurrent jurisdiction with the district court
in civil matters, was established. The circuit court was abolished in 1886.
The district court had exclusive jurisdiction in criminal cases. Since 1886 the district court has had exclusive jurisdiction of all court matters, including civil, criminal and probate cases.
At the organization of the county it belonged to the fourth judicial district, which was then composed of twenty-two counties in northwestern Iowa. Later it was contracted to include Lyon, Osecola, Sioux, O'Brien, Cherokee, Plymouth, Woodbury, Monona and Harrson counties. In 1886 Harrison county was set off into the Council Bluffs district. The remaining counties composed the district until March, 1913, when the six northern counties were set off to constitute a new district‐the twenty-first-leaving Monona and Woodbury composing the fourth judicial district. Judges Boies and Hutchinson are sole judges of the new twenty-first district.
Following is the schedule of district judges who have held office since organization of the county: Asahel W. Hubbard, Woodbury county, 1860-62; Isaac Pendleton, Woodbury county, 1863-66; Henry Ford, Harrison county, 1867-74; Charles H. Lewis, Cherokee county, 1875-1890; Scott M. Ladd, O'Brien county, 1887-96; George W. Wakefield, Woodbury county, 1887-1905; Frank R. Gaynor, Plymouth county, 1891-13; Anthony Van Wagenen, Lyon county, 1892-94; John F. Oliver, Monona county, 1895; William Hutchinson, Sioux county, 1897; J.L. Kennedy, Woodbury county, 1905-06; David Mould, Woodbury county, 1906; William D. Boies, O'Brien county, 1913.
Asahel W. Hubbard held the first term of court in this county, and on March 23, 1861, issued an order fixing the first term to be held June 3, 1861, "to continue in session two days if the business required it." No record of any such term being made in the court minutes, it is safe to say that business
250 BRIEN AND OSCEOLA COUNTIES, IOWA.
require it and the term was not held. April 24, 1862, a similar order
fixing the term to begin June 9, 1862, and continue for the same length
of time. This term was held
according to the order and was of course held
at the first
county seat, Old O'Brien. The court officials were H.C. Tiffey,
clerk, and G. Hoffman, sheriff. Henry Gollickson, Knude Stennerson and
Johnson, formerly citizens of Norway, presented themselves for
upon taking the oath of allegiance and fidelity to their
adopted country, were granted certificates recognizing them as full-fledged
American citizens and entitled to vote as such. In those
days citizens were
sorely needed and courts, being less strictly limited by law and watched by
inspetcors, were very lenient in granting letters. A comparatively
slight examination was required as to their qualifications.
On the afternoon of June 10, 1862, the second day of the term, judgment was entered by default against defendant in the suit of Kellogg and Kirby versus Adolph Wehrmann, for the sum of four hundred and forty nine dollars. Greeley Gale & Company secured a decree against F. Wehrmann et al.. setting aside a deed that had been executed by Adolph and Augusta Wehrmann in favor of F. Wehrmann, conveying two thousand one hundred and sixty acres of land in what is now known as Omega, Lincoln and Summit townships, and establishing the lien of a certain judgment against the lands. The records were then read, approved, and signed by the trial judge and court adjourned.
Judge Hubbard served as a member of Congress from this district after the end of his judicial career, his congressional experience extending from 1863 to 1869, inclusive. He was a prominent and distinguished pioneer citizen of and identified with the beginnings of Sioux City. He built the first hotel and organized the first railroad company in that vicinity. His son. Elbert H. Hubbard, who finally succeeded him in Congress, was well and favorably known to the later generation in this district.
Following this term there seems to have been a hiatus in judicial practice in the limits of the county. Settlers were few and far between; business, on account of war, was more or less depressed even in well populated centers, and not a line of record appears during a period of over seven years, except the occasional filing of a transcript of judgment from other counties to this county.
Isaac Pendleton, a judge in this district, never held a term of court here, so far as the record shows. He was born in 1833, located in Sioux City in 1858 and resided there till his death, July 17, 1896. He was elected
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 251
to office in 1862 as a
Republican, but afterwards became a Democrat.
Brilliant in his
literary attainments and learned in his profession, eloquent
possessing a wide knowledge of the common affairs of life, he was an
powerful advocate of any cause he espoused, and was for many
years the leading advocate in northwestern Iowa. He may better be said to
be the founder and father of the
Republican party in northwestern Iowa than
any other man. He was a member of the ninth General Assembly, a presidential elector in the second Grant campaign and held many other places of
trust and honor. He was a noble man. of brilliant mind, of great power, and
of the kindliest sympathies; noble in ambition and aspiration and noble in his
dealings with his fellow man.
Henry Ford, who had removed from Keosauqua, Iowa, to Magnolia, Harrison county, in May 1860, served one term as district attorney and three terms as district judge, 1867-1874. Judge Ford's first term in the county was held in November, 1870. The commencement of the term had been assigned for the second day of the month, but, on account of delay in arrival of the judge, it was not actually held until the 26th. The first foreclosure of a mortgage noted in the county court records was entered November 26, 1870, when Webb Vincent, a Fort Dodge baker, secured judgment against R.B. Crego and wife, foreclosing a mortgage amounting to four hundred and fifty-nine dollars and costs against the northeast quarter of section 36 in Waterman township, August 25, 1871, James and John Shoup secured judgment against C.W. Inman and R.B. Crego and wife, foreclosing a mortgage against lots 10,11, 20 and 21 in town of O'Brien and also the north half of the northwest quarter of section 36, Waterman township. At the same term John L. Nicodemus secured a similar decree against Crego's interest in two hundred acres on the same section for an indebtedness aggregating one thousand dollars. On this same date Webb Vincent secured the first judgment ever entered against the county in the local court. It was for the sum of two thousand five hundred and three dollars. A.N. Bostford, of Fort Dodge, was attorney for the plaintiff and Eugene Cowles, of Cherokee, appeared for the county. This case was contested. The judgment was afterward satisfied in full.
Among the early attorneys mentioned in the court records are Wilson & Dry. I.M. Pemberton, Orson Rice and George F. Haswell. In June, 1872, the Iowa Falls & Sioux City Railroad Company brought an action against the county treasurer and secured an injunction restraining enforcement of taxes prior to the year 1872 against lands in this county, which at that time
252 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
many thousands of acres. The railroad company took the position that although they were beneficiaries under a land grant made by Congress to the state of Iowa, that they had not received a conveyance of the
land from the state until
July 3, 1871, and the lands could not be properly
prior to the year 1872. Hon. N. M. Hubbard, of Cedar Rapids, who
had served as district
judge in 1865-66 and later was prominently identified
legal and political life of the state, was one of the attorneys for
plaintiff in this action and, illustrative of the drudgery and labor connected
practice of law in that time, one has but to read the manifold pages
extremely long petition all prepared by Judge Hubbard in his own
handwriting. Compared with the modern attorney, dictating his pleading to
a stenographer, we can see that there certainly has been considerable advancement in the details of
legal practice. Isaac Cook, another ex-judge of
the district court, was also associated with Judge Hubbard in this suit. Later
G.S. Robinson, of Storm Lake, and Joy & Wright appeared for plaintiff.
county was represented by Eugene Cowles, Barrett & Allen and D.A.W.
litigation finally terminated in favor of the railroad company,
it being held exempt from taxation of its lands prior to 1872.
The first mention of a grand jury in the county is December 1, 1871, when Judge Ford presided and C.H. Lewis, who afterwards became district judge, was acting as district attorney. As such he was the prosecutor for the state in all criminal actions. The district attorney found a defect in the method that had been employed to select a grand jury and on his motion the venire was set aside and a new panel of grand jurors drawn from a new venire. The fifteen so drawn were Adam Towberman, L.C. Washburn, Horace Gilbert, P.A. Hurlburt, W.A. Acer, John Wood, Robert E. Wood. Ed. Parker, Gus Baker, S.G. Sutter, Harley Day, William Welch, John Brock, Miles Allen and Henry Smith. This grand jury found no business for their consideration and were discharged.
April 12, 1872, Perkins Brothers Company secured judgment against the county for the sum of two hundred dollars, but this was, of course, soon afterwards paid.
The June, 1872, term of district court was conducted with the following officers: Henry Ford, judge; C.H. Lewis, district attorney; Stephen Harris, clerk; A.H. Willits, deputy clerk, and Ed. A. Nissen, sheriff. The first fine imposed in the district court in a criminal case was upon a plea of guilty. Henry Shultz confessed to an unlawful sale of intoxicating liquor and was fined twenty dollars, a portion of the costs being taxed against the county.
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In 1874 attorneys were admitted to practice in the courts of the state
upon their application made to the district court. A committee of the bar
was appointed to examine the applicant and if he was found qualified or
otherwise proved himself a good fellow he was generally found proficient
and recommended for admission. This method was found
very easy to the
aspiring sprig of the law, and the applicant today, when he considers the
years study under guidance of competent instructors and an exhaustive
examination before the
supreme court, now required, reads with longing eyes
of the good old days of easy admission. As an illustration of the laxity
shown, we find the following proceedings in the matter of application of
Warren Walker for admission to the bar, filed in district court, this county,
April, 1874. The court appointed Charley Allen, Eugene Cowles and G.
S. Robinson as a committee. The latter was a
practicing attorney at Storm
Lake, and afterwards judge of the supreme court and member of the state
board of control. The
report is as follows:
"The committee heretofore appointed to examine and report upon the qualification of Warren Walker to practice law as an attorney and counselor in the courts of said state ask to submit the following as their report: The committee find applicant to be a person of good moral character and that applicant has some knowledge of the statutory laws and practice of said state, acquired by reading works upon pleading and practice and by actual practice in justices' courts. That applicant has never read any elementary work or commentary upon the spirit and principles of common law. That applicant declares his intention, to procure and read such works as soon as possible.
"In view of the good moral character of applicant, the practical knowledge of the statutory law already acquired by him, and his avowed purpose of pursuing an extensive course of reading of standard works upon the elements and principles of law, the committee recommends that the applicant be licensed to practice as an attorney and counselor in the courts of the state of Iowa.
"17th day of April. A.D. 1874.
"By order of the Committee,
"Charley Allen, Chairman."
The first jury case tried was in April, 1874, in Ransom Bartle vs. William Lyle. D.A.W. Perkins was attorney for plaintiff and John Connell for defendant. The jury found for plaintiff and assessed the amount to be recovered at sixty-nine dollars and costs.
254 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
The circuit court
extending, as has been said, in this state from 1868
to 1886, was presided over in this county by but four judges, Addison Oliver,
John R. Zuver, Daniel D. McCallum and George W. Wakefield.
Addison Oliver, born in 1833, was an early settler of Monona county and has often been honored with the confidence of the people in election to office. In 1863 he served in the state Legislature as representative, and in 1865 served in the state Senate. He held office as circuit judge from 1868 to 1873, inclusive, at which later date he was elected to Congress and served in that capacity for four years from this congressional district. He was a man of strong individuality, honest, industrious, talented and of strong will power. He was public spirited, giving to his home town of Onawa a public library and manual training school. His life work is studded with many instances of his benevolences and kindnesses. He was a good fighter, strong in his likes and dislikes and ever ready to defend his opinions and his just rights. Judge Oliver was in charge of court in the first circuit only of this district, which included Woodbury, Plymouth, Ida, Cherokee, O'Brien, Monona, Harrison and. Shelby counties.
The first term in this county began November 25, 1869. But one case was disposed of at that term, an entry of default in the suit of Loren Inman vs. Chester W. Inman. Judge Oliver believed in expediting business of trial work and at the second term he held in the county he promulgated the following rules of practice:
"First. The defendant shall demur or answer, or do both as to the original petition before the morning of the second day of the term and as to an amended petition by the convening of court at its next session after the same is filed.
"Second. The plaintiff shall demur or reply or do both as to the original answer by noon of the second day of the term and to an amended or supplemental answer, or answer after notice, or demurrer, by the convening of court at its next session after the same is filed.
"Third. The defendant shall demur as to the reply by the convening of court at its next session after the same is filed."
A proceeding in the probate court of Clinton county, Iowa, transcripted to this county at this time, shows that H.F. Parker, J.R. Pumphrey and R.B. Crego were appointed to fix the value of one hundred and twenty acres of land on north half of section 31, in what is now Summit township, in the matter of estate of Jacob Whistler, deceased. They valued the land at one thousand one hundred and twenty dollars. Publication of the notice of sale was made in the Sioux City Journal and the land was sold to the attorney for the estate for three hundred dollars.
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 255
The first contested
legal action in the circuit court is shown to have been
that of Tallmage E. Brown vs. Rouse B. Crego, as treasurer of the county.
The files in the action are
missing from the clerk's office, but it is indicated
that the action was an
attempt to mandamus the county officials. A demurrer
petition was sustained, the court finding that he had no jurisdiction.
entry was made in case of Eugene Childs against same defendant.
February 10, 1871, Judge Addison Oliver gives a side light on the sparsely settled condition of the county when he orders:
"It appearing that there is no practicing physician or lawyer in the county of O'Brien it is ordered that Dr. Butler and C. H. Lewis, Esq., of Cherokee county, Iowa, be and they are hereby appointed as commissioners of insanity protempore."
One wonders at the need of such a commission at that time when the population was so small, but the need must have been great, for the court entered another order July 4, 1871, appointing L.E. Head and B.F. McCormack as members of the insane commission in place of the Cherokee county residents.
Judge Addison Oliver resigned his office in 1874, when he was elected to Congress and J.R. Zuver was appointed to succeed him. He was afterward elected to the office, but did not hold court regularly on account of declining health. Under the arrangement two terms of circuit court and two terms of district court were held each year, the different courts alternating.
Judge Zuver's early opportunities for education were limited, and not well calculated to fit him for the bar. His life struggles commenced as a deck hand on a tug boat on the Ohio river and he finally became captain of the boat. Coming to Iowa in the sixties, he settled in Harrison county and was admitted to the bar in 1868. He was rather austere and a man of many peculiarities. Of strong convictions, he would not swerve from what he thought was the right. He possessed a good legal mind, but was better adapted for the service at the bar than on the bench. Frequently hasty and captious and zealous in the insistence of his views, he often gave offense by the earnestness with which he expressed his opinions. At one time he secured the disbarment of an attorney who had offended him, but the supreme court reversed the action. The case is reported in 45 Iowa Supreme Court Reports, page 155. A Sioux City lawyer who came under the ban of his displeasure was confined in jail as punishment for a contempt of court, until he was released by Judge Lewis on a writ of habeas corpus. Becoming physically disabled through a fall that resulted in an injury to his head, he was
256 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
unable to hold court, but continued in office for practically the last three
years of his term without holding court. In 1890 he removed from Sioux
City to Boulder, Colorado, where he died November 7, 1896.
Daniel D. McCallum, elected circuit judge in 1884, ended his service when the court was abolished by the Legislature, in January, 1886, Judge McCallum lived at Sibley, in Osceola county, was a man of pleasing personality and well liked by the bar. At the conclusion of his term he thought that, having been elected by the people to fill the office for a full term, the Legislature could not sooner end the term by abolishing his court. The matter was tested in court, but resulted adversely to Judge McCallum and other circuit judges who had been legislated out of office. Judge McCallum died of cancer of the face in 1895.
George W. Wakefield, serving as circuit judge 1885-1886, did not hold court in this county during those years and will be spoken of later.
Charles H. Lewis was born in Erie county, New York, in 1839, and died September 26, 1904. He served with distinction in an Iowa regiment in the Civil War and engaged in the practice of law at Cherokee in an early day. From 1871 to 1875 he ably served as district attorney of this judicial district. In the fall of 1874 he was elected district judge and held the office until January 1, 1887. Craig L. Wright once wrote of him: "Personally he was the most lovable man to those whom he knew well. His character was one of the purest and mere contact with him left a marked impress. I have always had the highest regard for him as a lawyer and a judge. Before the bar he was stronger in consultation than as an advocate and was one of the most learned men who ever practiced in this state."
George W. Wakefield, born in 1839, died in Sioux City March 10, 1905. He served in an Illinois regiment in the Civil War, was wounded at Jackson, Mississippi, and entered the practice of law at an early day in Sioux City. After his two years' service as circuit judge, he began his term as district judge January 1, 1887, which service continued until his death. In early life he became owner of some real estate in this county, which he held till shortly before his death. He was kindly by nature, methodical in his habits and well versed in the law. He had a high order of ability in logical analysis and marked impartiality in his judicial methods and decisions. Besides his interest in law, he was foremost in a number of scholarly and public activities that indicated his breadth of mind and wide range of interests and studies. He was a forceful personality, not because of any aggressive disposition, but rather because of his modest and genial temperament, combined
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 257
distinguished ability that compelled general dependence on his judgment
and confidence in his
Judge Ladd has been referred to in the chapter on the Bar. He was a good politician because he conducted his office with industry, ability, integrity and honesty. His service on the bench did not repress his sense of humor, however, and frequently we hear stories from the older members of the bar as to his wit. At one time he had taken an equity case under advisement and when some time had elapsed with no decision, litigants and attorneys became anxious. As a smooth way of suggesting to the court that it was time to decide the case, the attorneys, after conference with each other, prepared and bled a motion asking that the court issue an order to require the judge to render his decision. The clerk was delegated to hand the motion to the judge and he slipped it upon his desk and promptly withdrew. Judge Ladd read it to the end, but soon afterwards placed on file his reply as follows:
"Come now the judge before whom this cause was tried and submitted and begs to sumbit the following:
"He admits that decision in said cause has not been rendered, but as reason therefor states: That there have been employed as attorneys in said cause members of the bar who have so artfully twisted and concealed the facts and law that decision of said case on its merits is impossible. Wherefore this judge prays that he may go hence in peace."
The attorneys accepted the joke and were soon afterwards respectively pleased and disappointed to hear from the judge with his decision.
Anthony Van Wagenen, appointed by Governor Boies in 1892 to fill vacancy created by addition of another judge in this district, had been in the practice at Rock Rapids in Lyon county. He made a good judge, but was ill during a portion of his term, that precluded his holding all terms of court regularly. He afterwards entered the practice at Sioux City and has been prominent in Democratic councils and politics. He is a fluent speaker and talented in debate.
Frank R. Gaynor, elected to the district bench as a Democrat in 1891, later became a Republican, largely turning upon the money question, gold versus silver, that was an issue between the parties. Judge Gaynor resided at LeMars and was a highly qualified lawyer, a thorough gentleman, kindly considerate of all. He brought to his office a grace and dignity that charmed the bar. litigants and court officials. His record in the appeals of cases to the supreme court has been exceptionally good and he has long been con- (17)
258 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
sidered one of the
strong judges of the state. In 1912 he was elected to the
supreme bench and began his office there with the year 1913.
John F. Oliver, elected first in the fall of 1894, has continuously served as district judge to the present time, although his work has not brought him into this county since we were set out of the fourth district in March, 1913. He is a son of Addison Oliver, the pioneer circuit judge of this district, and partakes of the strong qualities of his father. He is highly qualified as a lawyer, well read and with a mind well fitted to study and digest the law and come to the right conclusion. Absolutely honest in his decisions, his natural sense of right and wrong has sometimes caused him to assist the litigant whose case may not be quite properly presented, in getting the entire evidence before the court and jury and thus he has at times antagonized some of the attorneys. His continued service on the bench shows the high opinion of him held by the voters and he has proven an acceptable judge.
William Hutchinson, of Sioux county, elected to the bench in 1896, is one of the most popular judges. Of good legal training, a keen knowledge of human nature, a polished and convincing speaker, he has shown marked ability in rightly deciding the equities of matters presented to him for decision. Prior to his elevation to the bench he had long served as a successful practitioner, including service as county attorney of Sioux county. He possesses a clean Christian character and is verily beloved by even the litigant whom he smiteth.
J.L. Kennedy, appointed to the judgeship to fill vacancy in 1905, served till the end of his term, but was not a candidate for election. He was an exceptionally good lawyer and successful in his practice and found the sacrifice in income too great to longer continue in office.
David Mould, successor to Judge Wakefield, resides in Sioux City. He is of the same quiet temperament as Judge Wakefield, a good lawyer and a righteous judge.
Judge Boies, the youngest judge in point of service, has been discussed in another chapter. His friends are pleased to note that he is giving universal satisfaction as a judge, bringing to the office not only the ability but the industry that results in quick trials, quick decisions and no business delayed.
Within the limits of this chapter it will be possible to give but fragmentary statements in regard to a few of court officials.
Ed. Nissen was sheriff from 1872 to 1877, inclusive. He was a drinking man and an indifferent officer. In his final campaign for office in 1877 he
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county and urged upon the voters, who had been sorely pressed
by creditors during their days of poverty that followed the grasshoppers and
crop failures, that he would be drunk most of the time and they could not
expect him to hurt them much in the way of serving process. Mart Shea,
opposing him, announced that while he would serve all papers handed him
he would serve
nothing unless fees were paid in advance, and would not, as
Nissen had done, extend credit to persons desiring the papers served. The
people believed in Shea and elected him and, sure enough, when he demanded fees in advance, litigation fell off and many creditors refused to sue
they had to pay in advance. Shea held office for four years and was
by W. C. Green, or, as he was familiarly known, "Clark" Green.
The latter had been a settler from the
early day, closely identified with the
business life of the
county, a merchant, and owner of half the town plat of
Primghar. Green held the office eight years and was an exceptionally good
capable officer. During his term of office there was commenced that
litigation over the railroad lands in the county that not only kept the
busy, but helped his finances as well. In one day the Western Land
Company, purchaser of the Chicago, Milwaukee & St. Paul Railway lands,
filed one hundred and fifteen suits in
ejectment and the sheriff and his deputies handled, the notices in all these cases. At another time over
cases were filed in one
day. Green was a Democrat and his popularity was
shown in his
repeated election in a county that normally was strongly Republican.
W. H. Noyes, who followed Clark Green as sheriff, had previously held office as county recorder and made a good official. He was of a kind-hearted and liberal disposition, careless in acquiring money, but ever ready to do another a kindness, even at the sacrifice of his own pocketbook. In his office as sheriff he was always ready to do his duty, but at the same time strove to make the service as pleasant as possible to the defendant. He was followed by S.A. Carter, O.F. Morgan, George Coleman, Theodore Price, J.G. Geister and H W. Geister, who have all ably filled the office.
One of the popular clerks of courts in the history of the county was Frank A. Turner. An expert penman, a first class office man, with a genial smile, obliging temperament and a desire to work, he was the favorite among attorneys. He possessed a thorough legal knowledge and was able to assist many an attorney in a perplexing question of practice. His kind-heartedness was proverbial and while he did not leave the office with much of this world's goods to his credit, he left it with the high regard and affection of
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
every court official. Indicative of this was the beautiful diamond watch
presented to him by the members of the bar at the last term of court
which he attended. The method of
presentation was novel. Turner had
been served with a
subpoena in regular form requiring his attendance before
court as a witness and without knowing just what case it was, but thinking it was one of the
many matters wherein he was frequently called to testify,
he was made to take the oath of a witness and then
required to testify as to
length of service of clerk and asked to give his opinion as to his quality
of service rendered to the
public. This line of questioning was followed by
presentation speech by W.D. Boies, in which the questions unanswered
by Turner were explained to him and it was with tears in his eyes
accepted the emblem of love and appreciation, and attempted to express his thanks.
W.S. Armstrong, clerk for 1893 to 1896, inclusive, made a good record in his office, he was well qualified for the position and possessed in connection with his ability an affability and delightful personality that made him many friends. S.A. Martin, E.R. Wood, H.C. May and W.J.E. Thatcher have all made good clerks. Mr. Thatcher, from his legal knowledge, has always had a high sense of his duty and has especially been diligent in keeping up the work of his office, regularly checking bonds in probate matters and requiring filing of reports and schedules that have been omitted by representatives of estates and persons under disability. His administration has greatly expedited the settlement of estates and completion of court business.
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