CHAPTER XXV - THE BAR (CONT'D)

SOME NOTED CASES.

A noted case that was tried in the circuit court of Shelby county at Harlan in the late seventies was that of the Chicago, Rock Island & Pacific Railroad Company vs. Grinnell. It does not appear that any resident Shelby county attorneys were in the case. The defendant was represented by Sapp, Lyman & Ament, of Council Bluffs, and the railroad company by Thomas F. Withrow, and by the firm of Wright, Gatch & Wright, who, if I am correctly informed, were Des Moines attorneys. During the seventies there had been much trouble between a number of homesteaders and the Rock Island Railroad Company, particularly in Jefferson township. It will be recalled that when the Rock Island Railroad Company was completed to Council Bluffs on June 6, 1869, it had taken a different route through Shelby county from the route originally surveyed for the Mississippi & Missouri Railroad Company, for which the Dodge survey was made. Mr. Grinnell had settled upon land in Shelby county in 1872, intending to acquire and occupy it as a homestead under the laws of the United States and had made application as required by the homestead laws. When, however, he sought to file these applications in the United States land offices, they were refused, hence the litigation.

The circuit court of Shelby county decided against Mr. Grinnell, the court holding that the lands upon which Mr. Grinnell had settled were railroad lands and had passed under the grant to the railroad company by the United States. The case was appealed to the state supreme court of Iowa and decided by that court at the June term, 1879, the supreme court sustaining the decision of the circuit court of Shelby county. The gist of the decision was that Congress, by an act approved June 2, 1864, authorized the Mississippi & Missouri Railroad Company to modify and change the location of the uncompleted portion of its line, at that time the railroad having been completed a distance of one hundred and thirty miles, or from Davenport to Kellogg. The Rock Island Company, in 1866, became purchaser of the Mississippi and Missouri Railroad Company and all its title and interest in any lands originally granted by the United States to the first company. The supreme court of Iowa also held that under the act of 1864 the railroad company was authorized to select lands under certain conditions within twenty miles of its line, the original act allowing selection of lands only within a fifteen-mile limit. Mr. Grinnell’s land, it appears, lay between the fifteen-mile limits of the first grant and the twenty-mile limits of the later act.

Submitted with the Grinnell case were twenty-three other cases brought against numerous persons in different courts of the state of Iowa. The decision by the state supreme court, however, did not end the matter, as the Shelby county Grinnell case was appealed to the supreme court of the United States, where it was decided March 21, 1881, by an affirmance of the judgment of the supreme court of Iowa. There was one dissenting opinion, that of Mr. Justice Bradley.

Many cases were tried in the district and circuit courts at Harlan, which, on appeal to the state supreme court of Iowa, made law for the whole state on important questions. Among these was the case of Coenen & Mentzer v. Staub et al., tried before Hon. A. B. Thornell about 1886 or 1887. It was claimed by the firm of Coenen & Mentzer that it was entitled to a mechanic’s lien against real estate to secure the cost of lumber used in a sidewalk. It was held by Judge Thornell that, inasmuch as the lien was given only against property on which the improvement was situated, there could be no mechanic’s lien in this case, for the reason that the sidewalk was not situated upon the land, but upon the street. The attorneys in this case were Beard & Myerly, of Harlan, for the plaintiffs, and Fremont Benjamin, of Avoca, for the defendants.

Another important case tried in the district court at Harlan before Judge George Carson in 1891, was that of Gollobitsch vs. George S. Rainbow, Sheriff of Shelby County, these questions being involved in that case: First, it was contended that a deposition taken could not be used in evidence for the reason that the notice of the issuing of a commission to take it was served by a deputy of the defendant sheriff, and that where a sheriff was a party to the suit, his deputy could not serve any of the notices involved in the suit; and, second, that for the same reason the deputy sheriff could not impanel the jury.

Judge Carson held that the objections to the acts of the deputy sheriff were not good, but on appeal to the state supreme court of Iowa, the decision of Judge Carson was reversed. The attorneys appearing in the case were B. I. Salinger for the plaintiff, who had sought the recovery of certain personal property and who appealed the case, and D. O. Stuart and Smith & Cullison for the defendant.

The case of State vs. Book, found in the 41st Iowa Reports, at page 550, decided at the December term, 1875, settled an important proposition of criminal law. The defendant was charged with running a billiard hall where persons played billiards or pool with the agreement that the loser at the game should pay the proprietor for the use of the tables. The case was tried in the district court at Harlan before Judge Reed, who instructed the jury, of which H. M. Cook appears to have been foreman, that playing the game under such agreement constituted gambling, and that a person so permitting persons to play was guilty of maintaining a gambling house. This was the first time that this proposition was before the state supreme court, which affirmed the decision for Judge Reed. Up to that time most persons had thought that playing billiards or pool in this way did not constitute gambling. The attorneys appearing in the supreme court were M. E. Cutts, attorney-general of Iowa, and Clinton, Hart & Brewer, of Council Bluffs, for the defendant, who appealed the case.

Another interesting case was that of Bays v. Hunt, found in the 60th Iowa, at page 251. The plaintiff in this case brought suit against the defendant for damages by reason of alleged slander. It appears that the plaintiff was a candidate for office. It was held by the district court at Harlan, and by the state supreme court on appeal, that when a man is a candidate for office, seeking the support of the electors, a person may not be held liable for slander when he, without malice and in good faith, repeats to electors matters that have been told him concerning the candidate even though untrue, but which he believes, provided he makes such statements for the sole purpose of advising electors of the real character and qualifications of the candidate. The court, in other words, held that the speaking of such words under such conditions was privileged and that the defendant was not liable. Sapp & Lyman, of Council Bluffs, appeared for the plaintiff-appellant and Smith & Cullison for the defendant-appellee.

The mysterious disappearance, in August, 1896, of Francis Richardson, a wealthy bachelor who for many years had made his home at various places in the eastern part of Shelby county, resulted in litigation of large proportions for Shelby county. Mr. Richardson was a somewhat eccentric man, who for many years had loaned large sums of money to the farmers of the eastern part of the county. He suddenly disappeared and it is believed that he was murdered, although no definite clue was ever discovered, fixing the guilt for the commission of this crime. At the time of his death he owned nineteen hundred acres of improved land in Shelby and Audubon counties and besides had under his control perhaps forty thousand dollars worth of personal property, chiefly notes secured by real estate mortgages on Shelby and Audubon county land. Important litigation arising out of this state of facts was conducted by Byers & Lockwood and Cullison & Robinson of Harlan, with some non-resident attorneys. The most important case, perhaps, which was tried, involved the question of the ownership of certain notes and securities in the possession of Mr. Richardson at the time of his disappearance, which, however, were made payable to his brothers and other relatives. The administrator had surrendered these notes and securities to the payees named therein, and suit was brought to have it declared by the court that the said notes and securities belonged to the estate. The administrator, however, was sustained in his action. The case is found in Vol. 138, Iowa Supreme Court Reports at page 669.