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Dana Reed Bailey.

History of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources ... Synopsis of public records, biographical sketches .. online

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The following- officers of the court were present: P. J. Rog-de,
state's attorney; C. W. Hubbard, sheriff; H. B. Carleton, clerk;
Georg-e M. Hig-by, stenog-rapher. Twenty-one civil cases were tried



104 HISTORY OP MINNEHAHA COUNTY.



to a jury. Eleven verdicts were returned for the plaintiffs, nine for
the defendants, and in one case the jurv disag-reed. The case of A.
S. Sherwood vs the City of Sioux Falls, for injuries received throug-h
a defective sidewalk, was tried at this term, and a verdict rendered
for the plaintiff in the sum of S2,500. Joseph Kirby was fined S3(Ml
for contempt of court. Almost anv 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 thoug-h nothing unusual had occurred. There were only a
few criminal cases tried during- the term! Two persons pleaded
g-uilty to the charg-e of burg-lary and were sent to the penitentiary.
The jury was discharg-ed December 24, and the court adjourned Jan-
uary 7, 1897.

Fifteenth term, 1897. Court convened April 27. J. W. Jones,
judg-e; C. P. Bates, state's attorney; Den Donahoe, sheriff; W. J.
Crisp, Jr., clerk; G. M. Hig-by, stenogfrapher. Owing" to the fact
that criminal charg-es of a peculiar character had been made agfainst
certain persons, State's Attornev Bates asked the court to order a
g-rand jury to be summoned, which request the court complied with.
The g-rand jury returned eigfht indictments, one of them being-
ag-ainst the Rev. Richards of Dell Rapids. This case was continued,
and the defendant afterwards left the state and a disg-usting-trial was
avoided. The g-rand jury was discharg-ed May 10. Two persons
pleaded gfuilty to petit larcen}- and were fined SIO each. One person
was found g-viilty of setting- a prairie fire contrary to law, and fined
SIO. The only other criminal case tried was the State vs Wemple,
who was charg-ed with embezzlement. The jury found him not
g-uilty. Every ex-states attorney of Minnehaha county will endorse
the statement that it is impossible to convict a person of the crime of
embezzlement in this county; the g-reater the embezzlement and
clearer the proof on the part of the prosecution, the g-reater 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 dis-
ag-reed. The jurv was dischargfed 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 sus-
pended 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,
judg-e: C. P. Bates, state's attorney; Den Donahoe, sheriff ; Walter J,
Crisp, Jr., clerk; G. M. Hig-by, stenog-rapher. There were twenty-
five civil cases tried to a jurv. 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 charg-ed with committing- the offenses
were tried during- the term. James Garring-ton was tried on the
charg-e of murder of one Alfred Erickson, and the jury found him
g-uilty and fixed the penalty of death; but the case was appealed to




Judge Homer J. Whipple.



HISTORY OF MINNEHAHA COUNTY 10";



the supreme court and a new trial granted. The other was the case
of an affray between (Gilbert Gihnan and John McDonald, shortly
after which affray McDonald suddenly expired. (Tilnian was tried
for manslaug-hter, but the jury found him not jjfuilty. A brief ac-
count of both these cases will be found elsewhere in this work. The
jury was discharg-ed February 0, and the court adjourned Feb-
ruary 14.

Seventeenth term, 1898. Court convened May 2-I-. Joseph W.
Jones, judg-e; C, P. Bates, state's attorney; Den Donahoe, sheriff"; \V.
J. Crisp, Jr., clerk; G. M. .Hig-by, stenog-rapher. Thirty-one civil
cases were tried to a jury. Eig-hteen verdicts were rendered for the
plaintiffs, and thirteen for the defendants. Six informations were
hied by the state's attorney. One person was sent to the peniten-
tiary, and two found not g-uilty. Since the grand jury has been dis-
pensed with, the state's attorney finds it a delicate matter to deter-
mine what to do with a g*reat many of the cases where parties charg-ed
with criminal offenses have been held by justices of the peace to
answer to informations which may be filed ag-ainst them in the cir-
cuit court. In most of the cases he has no opportunity of hearing-
the testimony ag-ainst them, and it naturally follows that more ver-
dicts of not g-uilty will be rendered in criminal cases than there
would be if the cases w^ere examined by a g-rand 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, 18*)8, 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, exce])t
the retrial of James (xarring-ton, we bring- this chapter to a close with
the statement that the legfislature in 1899, authorized the county com-
missioners to petition the court for the drawing- of a g-rand 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 judg-e in this county. He
was elected treasurer and judg-e 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 w-as elected, and remained judg-e of
probate until January, 1875. On the first pag-e 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, althoug-h a little further
on is the record of business having- been transacted on the 5th of that
month. C. K. Howard was probate judgfe in 1875-(). 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 pag-es. This is readily accounted for by the scant popu-
lation within its jurisdiction, the small number of deaths occurring-,



108 HISTORY OF MINNEHAHA COUNTY.



and the still smaller number of those dying- who had enough prop-
erty to administer upon. In 1877-8, C. W. McDonald held the office
of probate judg-e, and he was succeeded by R. C. Hawkins, who re-
tained the same from January 1, 1879, until January, 1890, when
Edwin Par li man, who had been elected county jud^e with probate
jurisdiction, took charg-e 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-eig-ht estates and about
seventy cases of g-uardianship considered by the probate court. Dur-
ingf the first five vears of Judg-e Parliman's administration there were
not less than four hundred and thirty estates and about one hundred
cases of g-uardianship acted upon. The estate of Dr. J. L. Phillips,
one of the pioneers of Sioux Falls, is the larg-est 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
countv requiring- administration.



COUNTY COURT.

Sections nineteen, twenty and twenty-one of article live of the
constitution of South Dakota read as follows:

Sec. 19. There shall be elected in each organized county, a county judge who shall be
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 iiave 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. W^rits of error and appeal may be allowed from county to circuit courts, or to the su-
preme 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 there-
in may be by information or otherwise as the legislature may provide.

The leg-islature at its first session in 1890, enacted a law which
defined the jurisdiction of the county courts, provided for the prac-
tice 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 jurisdic-
tion in all matters pertaining to the naturalization of citizens, the
probate of wills, the administration and settlement of estates of de-
ceased persons, the guardianship of minors, insane and incompetent
persons, and the sale of real estate by executors, administrators and




Judge Robert C. Hawkins



HISTORY OF MINNEHAHA COUNTY. Ill



o-uardians; that they have concurrent jurisdiction with the circuit
courts in cases wherein justices of the peace have jurisdiction, beinj*-
limited in amount accordino- to the population of the counties, as fol-
lows; 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
judg-ment mig-ht 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 leg-islature, in 1893, enacted a law that took away all juris-
diction from the county courts in counties havingf a population of
less than twenty thousand, except "exclusive orig-inal jurisdiction in
all matters of probate, g-uardianship and settlement of estates of de-
ceased persons." Minnehaha and Lawrence are the only counties in
the state that have a population of twentv thousand, and conse-
([uently are the only counties in which these courts retain the juris-
diction as conferred in the act of 1890.

Under the provisions of the constitution, Edwin J^arliman was
elected judg-e of the county court of Minnehaha county in November,
1889; Judg-e R. C. Hawkins was also a candidate. In 1890 Judo-e
Parliman was re-elected and ag-ain in 1892 and 1894.

At the time fixed for the first term of the county court, the
circuit court was in session, and Judg-e Parliman, on the 18th day of
Aug"ist, 1890, ordered a g-eneral law term of the county court to be
held September 23, 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. I).
Stites, clerk; E. P. White, stenog-rapher. The first jury trial was
that of John Johnson vs Georg-e Burnside, but the jurv could not
ag-ree upon a verdict, and w^as discharg-ed. U. S. (t. Cherry was
attorney for the plaintiff and Winsor & Kittredg-e for defendant.
One other case was tried to the jury, that of Georg^e Proctor vs M.
Grig-sby, and verdict rendered for the plaintiff. The jury was dis-
charg-ed 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. Par-
liman, judg-e; D. R. Bailey, state's attorney; John Sundback, sheriff;
Albion Thorne, clerk; E. P. White, stenog-rapher. 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 discharg-ed March 27.



112 HISTORY OF MINNEHAHA COUNTY.



Third term, July, 1891. Court convened July 7. E. Parlimaii,
judg-e; D. R. Bailey, state's attorney; John Sundback, sheriff; Albion
Thorne, clerk; E. P. White, stenoorapher. No jury trials were had
at this term.

Fourth term, March, 1892. Court convened March 16. E. Par-
liman, judg-e; 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 gfuilty, and the
other of not g-uilty, it being- a liquor prosecution in which the evi-
dence 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 g-uilty 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,
judg-e; D. R. Bailey, state's attorney; John Sundback, sheriff; Albion
Thorne, clerk; E. P-. White, stenog-rapher. This was a short, unim-
portant term, with only three cases tried to a jury, resulting- in ver-
dicts for the plaintiffs. The last case was tried on the 18th day
of July.

Sixth term, January, 1893. Court convened January 3. E. Par-
liman, judg-e; D. R. Bailey, state's attorney; Georg-e A. Knott, sher-
iff; Albion Thorne, clerk; E. P. White, stenog-rapher. There were
nineteen jury trials, resultingf in sixteen verdicts for the plaintiffs,
two for the defendants and one disag-reement of the jury. The last
case was tried January 21.

Seventh term, July, 1893. Court convened July 5. E. Parli-
man, judg-e; D. R. Bailey, state's attorney; George A. Knott, sheriff;
Albion Thorne, clerk; E. P. White, stenog-rapher. Twenty-three
civil cases were tried to a jur}-; nineteen verdicts were returned for
the plaintiffs and four for the defendants. The jurv was discharged
July 17.

"^ Eighth term, March, 1894. Court c^)nvened March 12. E. Par-
liman, 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 g-uilty, 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. Hig-by, stenog-rapher. 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, stenog-rapher.
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. Parli-
man, judge; P. J. Rogde, state's attorney; C. W. Hubbard, sheriff;




Judge Edwin Parliman.




JiTiKJE William A. Wilkks.



HISTORY OF MINNEHAHA COUNTY. 11^



Harr\- B. Carleton, clerk; (t. M. Hig-by, stenoorapher. There were
seven civil cases tried to a iiirw The jurv was discharged on Tues-
day, the *)th day of July.

Twelfth term, March, 18*)(). Court convened March 3. E. Par-
linian, jud«-e; P. J. Roofde, state's attorney: C. W. Hubbard, sheriff:
Harry B. Carleton, clerk: T. (t. Brown, stenot>-rapher. There were
eight civil cases tried to a jury, and seven verdicts rendered for the
plaintiffs, and one for the defendant. The jurv was discharged
March 1().

Thirteenth term, July, 18^H). Court convened July 7. K. Par-
liman, judtre; P. J. Rogde, state's attornev: C. W. Hubbard, sheriff":
H. B. Carleton, clerk: T. G. Brown, stenog-rapher. One civil case-
was tried to a iury, and verdict rendered for the plaintiff. The case
of State vs Sexton was tried at this term, and verdict rendered
ag-ainst the defendant. Court adjourned July 17.

Fourteenth term, Februarv, 1807. Court convened Februarx
2. W. A. Wilkes, judge: C. P. Bates, state's attorney: Den Dona-
hoe, 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
jurv disag-reed. On the lOth day of February the jury was dis-
charged.

Fifteenth term, Julv, 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 jurv was discharg-ed 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, Februarv, 1899. Court convened February
14. W. A. Wilkes, judge; C. P. Bates, state's attorney: Den Dona-
hoe, sheriff; W. J. Crisp, Jr., clerk. This was a short term, with
onlv a few cases.

' Nineteenth term, Julv, 1899. Court convened July 11, and ad-
journed Julv 15. The judg-e.and other officers of the court were the
same as the term preceding. A few jury trials were had.



CHAPTER IV.



CONSTITUTIONAL CONVENTIONS — TERRITORIAL AND
STATE OFFICERS.

Three conventions have met at different times in the city of
Sioux Palls, each of which drafted a state constitution which was
submitted to the vote of the people within the present limits of the
State of South Dakota. The instrument prepared by the last conven-
tion is the constitution under which the state was admitted into
the Union. To this result the citizens of this county contributed
their full proportion of labor and thoug-ht. It is fitting- therefore,
that a brief historv of what was known at the time as "the strug-g-le
for statehood" should appear in this volume.

During- the session of the territorial leg'islature in 1883, a bill
passed both Houses providing- for a constitutional convention to be
held at the capital in October of that year for the purpose of framing-
a constitution for a state to comprise all that portion of the Terri-
tory of Dakota south of the fortv-sixth parallel. This measure did
not become a law, owing- to the fact that Governor Ordway would not
approve it, and did not return it to the leg-islature with his objections.

At the same session of the leg-islature the seat of g-overnment
was removed from Yankton, and a commission of nine were appointed
to locate and establish it elsewhere on or before the first day of July,
1883. The course of the g-overnor and his supposed hostility to the
southern portion of the territory, and the fact that the seat of gfov-
ernment was on wheels and would probably be located at some place
without reg-ard to the convenience of that portion of the territory
south of the forty-sixth parallel, aroused the representative men in
this section, and disregarding- all former affiliations, they determined
to put in operation the machinery to secure statehood as quickly as
possible.

A deleg-ate convention of the people was called to be held at
Huron June 19, to devise a plan of action. Prior to the meeting* of
the convention some strong- articles were published in the news-
papers, advocating- the rig-ht of the people south of the forty-sixth
parallel to proceed at once to org-anize a state. The division of the
territory having- been refused by Cong-ress, and the usual method
of adopting- a constitution and asking- for admission into the Union
having- been prevented by the adverse action of Governor Ordway,



HISTORY OF MINNEHAHA COUNTY. 110



it was tirg-ed that the people could exercise their reserved and ex-
traordinary rio-hts vested in them by the constitution of the United
States, and in their sovereig-n capacity create a state.

The convention assembled. It was composed of the strong-est
and most capable men then residing- in the territorv represented.
It was a g-reat convention in every respect, and did its work with a
calm deliberation and sag-acity that encourag-ed the friends of the
movement. The address to the people, setting- forth the causes
leading- to the demand of division and admission, rose to the hig-hest
plane of assertion of political rig-hts. A g-reat metropolitan news-
paper at the time, in commenting- upon this address, said: "There
must be a copy of the Declaration of Independence somewhere in the
southern part of Dakota territorv." E. AV. Caldwell of Sioux Fulls
was chairman of the committee which prepared the address.

The ordinance adopted by this convention presented a full and
concise statement of the facts as they existed, and resolved
and ordained "that for the purpose of enabling- the people of that
part of Dakota south of the forty-sixth parallel to org-anize and form
a state g-overnment and make application for admission into the
Union of the States, a delegfate convention is hereby called to meet
at Sioux Falls on Tuesday the 4th day of September, 1883, for the
purpose of framing- a state constitution republican in form, and
doing- and performing- all other thing-s essential to the preparation of
the territory for making- application to the general g-overnment for
the admission of such part of Dakota into the Union of the States,
and that said convention shall be composed of one hundred and fifty
members." This ordinance also provided that the election of the
members to this convention should be held on Aug-ust 1, and provided
for the canvass of the returns and issuing- of certificates to the per-
sons elected.

In selecting- the place for holding the constitutional convention,
the final vote stood, Sioux Falls 212, Deadwood 02.



CONSTITUTIONAL CONVENTION, 1883.

On the day appointed, 120 deleg-ates elected to this convention
met at Cxermania hall in Sioux Falls and the remainder of thi' deh-
gates were all present before the close of the convention.

The late Hon. John R. Gamble called the convention to order,
and J. W. Taylor of Canton, acted as secretary. The roll of the
deleg-ates was called, and then, upon the request of the chairman,
the Rev. J. N. McLoney, pastor of the Congreg-ational church at
Sioux Falls, offered prayer. Hon. Jefferson P. Kidder, associate
justice of the supreme court, administered the oath to all of the del-
eg-ates present. A. C. Mellette was called to the chair. On the
second day, the permanent organization of the convention was
effected bv the election of the Hon. Bartlett Tripp, president; C-. H.
Winsor, secretary; H. M. Avery, first assistant secretary; and T. A.
King-sbury, second assistant secretary; Joseph M. Dickson, serg-eant-



120 HISTORY OF MINNEHAHA COUNTY.



at-arms; Lynn Parmle}-, William McCormack, Sioux (xrio-sby and



Online LibraryDana Reed BaileyHistory of Minnehaha county, South Dakota. Containing an account of its settlements, growth, development and resources ... Synopsis of public records, biographical sketches .. → online text (page 11 of 99)