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196 - HISTORY OF AUGLAIZE COUNTY CHAPTER V. THE BENCH AND THE BAR-COURTS AND LAWYERS. As has been set out, civil processes had for thirty years been operative throughout the region now comprised within .Auglaize county before this county became organized as a separate civic entity in 1848. Since 1844 this region had been included in the old Sixteenth judicial district, this district including Shelby county and all the counties thence north to the state line, ten in number, and by the terms of the judicial apportionment act creating the district, Judge Patrick G. Goode, the man who named the city of Lima, was named the president judge of the district for a term of seven years and was thus serving in that capacity when Auglaize county was erected. Judge Goode was a Virginian by birth, but became a resident of Ohio in 1805, two years after the admission of the state, he then having been but seven years of age. He received advanced schooling in Philadelphia and early took up the study of law. In 1833 he was elected to represent his district in the Legislature and in 1836 was elected to Congress, his district at that time extending from Dayton to Toledo, His term of office as president judge of this judicial district expired in 1851 and he thereafter devoted himself to the service of the Methodist church, making his home at Sidney, where he died in the fall of 1862. When Auglaize county was erected, George W. Holbrook (the "father of Auglaize county," of whom fitting mention heretofore has been made), David Simpson and John W. McLean were named as associate judges for this county, and, as has been set out in the previous chapter, the first meeting of the court was held in the little old Methodist church at Wapakoneta, an arrangement having been entered into by and be- HISTORY OF AUGLAIZE COUNTY - 197 tween the trustees of the church and the county commissioners providing for such use of the church building until a court house could be erected. The record of the court for Auglaize county opened with the initial notation in Law Record 1, as follows: "Pleas before the court of common pleas of Auglaize county, State of Ohio, at the May session, A. D. 1848, present Patrick Goode, president judge, and George W. Holbrook, David Simpson and John McLean, his associates." The first case was that of John Young vs. Robert Branam, the court entering judgment against defendant for $17.02, with costs of $2.71, the suit having been based on a $10 loan made by Branam from Young "for the purpose of buying furs and skins" on December 12, 1845. The probate court's records open with the notations as of the 1st day of May, 1848, Franklin Linzee, judge. Chancery Record No. 1 opens with the following notation : "Pleas at Wapakoneta before the Honorable Patrick G. Goode, president, and David Simpson, George W. Holbrook and John McLean, his associate judges of the court of common pleas of the county of Auglaize, in the State of Ohio, of the term of November, in the year of our Lord one thousand eight hundred and forty-eight." The initial case in this court was that of Jared Gates vs. Fanny Gates, divorce, the application being based upon the ground of desertion, in that the wife was alleged to have left her home and gone to Indiana with "some person unknown to your petitioner." The petition was granted, the court ordering that "the said Jared Gates be absolved from said marriage contract." Judge Goode and his associates continued on the bench until, under the Constitution of 1851, Allen, Hardin, Shelby, Auglaize, Madison, Union and Logan counties were erected in one common pleas district (District 3, Subdivision 1), of which Benjamin F. Metcalf was elected judge. The first notation in the order book carrying Judge Metcalf 's orders in Auglaize county is that of the March term, 1851, being the "proceedings of the court of common pleas of the county of Auglaize, State of Ohio, of the term of March, A. D. 1851, 198 - HISTORY OF AUGLAIZE COUNTY before the Hon. Ben Metcalf, judge of said court," and it is to be observed that the order was signed simply Ben Metcalf, the judge apparently eschewing the more rounded Benjamin F. of parental sanction in his official capacity. Law Record No. 1 (District Court) opens with the record of the Auglaize Supreme Court, "pleas at Wapakoneta before the honorables Edward Avery and Rufus P. Spaulding, judges of the Supreme Court of the State of Ohio within and for the county of Auglaize at the June session thereof in the year of our Lord one thousand eight hundred and fifty," the case being that of Nicholas Zaenglein vs. John Norris, "error from Auglaize common pleas." The juvenile court is a recent creation, established in the spring of 1908, Clement A. Stueve then being judge of the probate court, jurisdiction presently being vested in the court of common pleas and the probate court, with the judge of the latter court acting as judge of the juvenile court. The value of this court's service in dealing with youthful offenders has been demonstrated in many effective ways. The record of marriages is kept in the office of the probate court. Marriage Record 1 opens with the initial entry of the marriage license granted to Michael Bixler and Catherine Oswalts, March 11, 1848, which was returned on May 15 following with the certificate of Peter Hauck, M. G., attesting the solemnization of the marriage on the 12th of March. The second license was that granted on March 14 to James Sunderland and Jemima Baker, who were married on March 16 by Simon Whetstone, J. P. The next license was that granted to William Thompson and Sarah Carter, March 21, this couple being married on the 23d of the same month by Robert C. Layton, J. P., and so on through the years since, the current record being Book 14, a very much larger volume than the little old time stained book which carried the record of the first marriages in the newly organized county. This first book carried the licenses and certificates of solemnization up to 1855 and covered 409 pages, the last entry in that book being that of a license granted to Newton Bigelow and Paul- HISTORY OF AUGLAIZE COUNTY - 199 ine Richardson, February 9, 1855, the ceremony of marriage being performed by David Bigelow, J. P., on the 14th following. The naturalization records also are kept in the probate court and Naturalization Record 1 opens with an entry as of February 6, 1858, being the declaration of George Kohler, a native of the grand duchy of Baden, "that it is bona fide my intention to become a citizen of the United States," Anthony Dieker then being clerk of the court. The second application for citizenship was filed by Gottlieb Lobherz, a Wurtemberger, on March 1, 1858, and the third by Aloysius Herbst, also a Wurtemberger, on May 3, following. The preservation by the state of vital statistics was not begun until in the summer of 1867. These records for the county also are kept in the probate court and the first birth recorded in the local records is that of Ellen Jane McCoy, born on July 5, 1867, daughter of William and Sarah Jane McCoy. FURTHER RECORDS OF THE COURT. When in 1858 a judicial reapportionment was made and Auglaize county was thrown into a sub-division comprised of the counties of Allen, Auglaize, Mercer, Putnam and Van Wert, Judge Metcalf was re-elected judge of this district and so continued to occupy the bench by re-election until his death in February, 1865. Of the judges who presided over this district until the reapportionment of 1913 gave to each county its individual court of common pleas, three were citizens of Auglaize county, Judge Edwin M. Phelps, Judge William T. Mooney and Judge Fernando C. Layton, the latter of whom, a former member of Congress from this district, was elected judge of the common pleas court in 1908 and was thus serving when Auglaize county was made a separate judicial district in 1913. By successive re-elections Judge Layton is still occupying the bench. He had no opposition in the memorable election of 1920, when for the first time in the history of the county the Republicans elected their entire county ticket and 200 - HISTORY OF AUGLAIZE COUNTY thus was the only Democrat elected to county office in that election. Judge Layton was born in this county in 1847. He was admitted to the bar when twenty-two years of age and engaged in practice at Wapakoneta, where he ever since has resided. His first public office was that of prosecuting attorney for this county, to which office he was elected in 1874, In 1890 he was elected to represent this district in Congress and thus served for six years, having been re-elected in 1892 1 and 1894. The roster of judges of the probate court is given in the previous chapter, relating to county government, the present (1922) incumbent being Judge Richard E. Boesel, who was elected in 1920. Auglaize county is in the third appellate district, along with Allen, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, 1 Seneca, Union, VanWert and Wyandot counties and the times for holding the court of appeals in this county are January 2 1 and September 11. The court of common pleas for this county meets on January 2, May 1 and October 2. HARKING BACK TO OTHER DAYS. Many interesting reminiscences have been narrated concerning the old courts and the old lawyers. Of these none perhaps is more interesting than that narrated many years ago concerning the practice of Judge Ben Metcalf, who so long presided over the court in this county. "I remember," said the narrator of this incident, speaking before a meeting of the Putnam County Pioneers Association in 1885, "being present in the court room at one time when he (Metcalf) was defending a man charged with burglary. The strongest link in the chain of circumstantial evidence against the prisoner was the identification by the prosecuting witness of a piece of silver money, a Prussian thaler, which was found on the prisoner, as a part of the stolen money. "Metcalf had managed to procure sixteen or eighteen of these Prussian thalers and when the prosecuting witness, after having identified the piece of money, was turned over to HISTORY OF AUGLAIZE COUNTY - 201 him for cross-examination Metcalf picked up the thaler and presenting it to the witness, asked, 'Are you sure this is the piece of money you lost ?"Yes, sir,' answered the witness. Metcalf laid it down on the table behind a book, where the witness could not, but the jury could, see it. After another question or so to the witness, during which he got one of his own thalers out of his pocket unobserved by the witness, he handed him another thaler with the remark, Take that piece of money again and see if there is any mark on it by which you can know it.' The witness answered that there was no particular mark, but he knew it was the same, and Metcalf placed that piece by the side of the other, and so, with a question or so between them, he got the witness to identify each of the sixteen or eighteen thalers and, finally, removing the book, he called the witness to pick out of the pile the particular thaler he claimed to have been stolen. The witness, utterly dumfounded, refused to identify any of them and the prisoner was acquitted. "And of his eccentricities, for he was eccentric, they tell the following story : In those days there was not at any of the county seats practice enough to justify a lawyer in relying on his home practice, and the lawyers were in the habit of going from county seat to county seat as the court moved, to attend to their cases. This they called 'riding the circuit.' Upon one of these trips Judge Metcalf, in company with the other lawyers, staid all night one night at Pendleton. In the course of the evening he complained of being ill and, insisting upon it that he was going to die, called up one of his brother lawyers, handed him his pocketbook and requested his friend to give it with his last loving remembrance to his poor wife ; and having thun arranged his worldly affairs, closed his eyes and composed his countenance for death. Under these solemn circumstances it was conceived eminently proper by his associates of the bar that his passage to the other world should be eased by sacred harmony, and Judge John M. Palmer was selected as one peculiarly fitted to conduct the services. Palmer, with a solemn countenance, sat 202 - HISTORY OF AUGLAIZE COUNTY down by the bed and sang—not a hymn as expected, but a fancy little comic song to a queer, jerky sort of tune and very pathetic chorus. He had hardly finished the first verse until Metcalf, whose mouth had commenced to twitch in spite of him, raised up in bed and proceeded forthwith to kick Palmer out of the room, with the remark that they were a d set of heathens that wouldn't let a man die in peace. But he was cured." ARRIVAL OF JUDGE PHELPS AT ST. MARYS. Concerning Judge Edwin M. Phelps, one of the pioneers of Auglaize county, who was elevated to the bench in 1869 and who died in the summer of 1883 at the age of almost seventy years, it has been written by one who knew him well that "of his competency, honesty and faithfulness, the public whom he served well know." Judge Phelps was a native of Connecticut, born at Woodbury in 1813. He was prepared for college in his native state and as a youth came to Ohio, where he completed his studies at Kenyon College, from which he was graduated in 1833. He then finished his law studies under the preceptorship of Judge Lane at Norwalk and in 1835 was admitted to the bar. At that time St. Marys was the county seat town of Mercer county. He had heard good reports of the growing settlements here and decided to locate for the practice of his profession at St. Marys. Concerning conditions at that time Judge Phelps's own words carry the best commentary. In his autobiography written in 1881, two years before his death, the judge set out that he "arrived at St. Marys on the night of the 4th of March, 1835. I reached there on foot, the little sleigh in which I had traveled having given out. I waded the river and came into town about 10 o'clock. I found a little town of about twenty houses, all log. I was too poor to leave and too depressed to stay. How kind, and friendly those people were to me, but they have all passed away!" This same narrative sets out that while studying law with Judge Lane at HISTORY OF AUGLAIZE COUNTY - 203 Norwalk in the two years just prior to his establishment at St Marys, the young lawyer "also taught Latin, Greek and the natural sciences to a very large class of young men and women, numbering 140 Among them some have risen to distinction and many others are dead. * I tried to teach them well and faithfully, and many of them remembered me kindly in after years. I here met my wife, who was also engaged in teaching." Another hand has written that "Judge Phelps joined the Methodist church the first Sabbath after reaching St. Marys with his young bride, who was already an earnest Christian. In the act of joining church he received the witness of the Spirit and very often referred to it in relating his religious experience." Judge Phelps was twice elected to represent this district in the state Senate and was twice elected judge of the court of common pleas. It was in 1824 that St. Marys became the seat of justice of Mercer county, to which the western portion of what is now Auglaize county then was attached, and maintained its position as the county seat town until 1840, when the growing population to the west and north created a movement which resulted in the establishment of the county seat at Celina. Joseph H. Crane, as president judge, held the first term of court in the fall of 1824, court being held in such rooms of convenient dimensions as were available for that purpose until 1828. In the spring of this latter year the county commissioners entered into a contract for the erection of a court house on the square now occupied by the high school building and a two-story frame building was put up, 20x24 feet in ground dimension, settlement for which was made in March of the next year (1829), the contractor being paid $291.49. The lot had cost the county $40. Not long after the county seat was located there a jail was constructed of hewed logs on the south side of Spring street, near Wayne street. These logs were of oak, hewed to about a 10x14 timber and halved at the ends to make a solid wall. There were iron rods an inch and a half in thickness running through the corners to prevent the timbers from 204 - HISTORY OF AUGLAIZE COUNTY being pried out. There was but one room to the structure and the floor and ceiling were of the same 10x14 stuff. The door was made of a double thickness of two-inch oak puncheon, crossed diagonally and thoroughly nailed to prevent sawing out. The lock was a heavy store lock and the window was barred with iron. In the winter of 1838 an insane man was placed in the jail for safe keeping. One night he set fire to the straw pallet which served as a bed in the jail. The flame shining through the window attracted the attention of a neighbor and the prisoner was rescued, but the jail was consumed in the blaze. THE LINZEE FAMILY. It was in 1835 that Judge Robert Linzee, one of the first settlers of the country west of St. Marys and father of Judge Benjamin Linzee, formerly and for years judge of probate in and for Auglaize county, was elected associate judge for Mercer county. Concerning this family a bit of reminiscence here will be timely, the facts set out being credited to the collection of the late Andrew Jackson Linzee, also a lawyer and a son of the first named Judge Linzee and a brother of Judge Benjamin Linzee, of excellent memory hereabout. There it is set out that William Lindsay, a descendant of Capt. John Lindsay, who was of the clan Douglas, was born in Edinburg, Scotland, about 1705. He settled in the County Derry, Ireland, in 1739 and there established an Irish linen business which he carried on until his death. He left two sons, John and William, who came to America in 1765. John Lindsay was a sea captain and became the commander of the Providence packet, the "Hannah," that had trouble with the British man-of-war, the "Gaspe," in 1772, which incident led to the establishment of the first American navy. The second William Lindsay, or rather Linzee (for his father had changed the traditional spelling of the family name for phonetic reasons, holding that Lindsay did not form the sound Lin-zee, the customary pronunciation of the name), was a miller and settled at Endicotts Mills, twelve miles above Har- HISTORY OF AUGLAIZE COUNTY - 205 risburg, Pa., where he had charge of the mill, and purchased a farm in the neighborhood. He had three children, a daughter, Mary, and two sons, William and Robert, the latter of whom was born at Endicotts Mills in 1773. Robert Linzee, who became one of the most influential pioneers of this section of Ohio, moved when a child with his parents to Morgantown, Va., where his father died. He then moved with his widowed mother to the Athens settlement, in what then was the Territory Northwest of the Ohio, and in 1794 took up there a farm of 300 acres. He continued to make his home there until in 1833, when he sold his place and moved up into this section of Ohio, settling on an "eighty" west of St. Marys and thus is said to have become the first permanent settler west of that historic point in this state. His farm was on the site of the old Indian village, "Old Town," and he gave it the name of Oldtown farm. He had rendered conspicuous public service at Athens, his first commission having been that of an ensign in the army of Gen. Arthur St. Clair, territorial governor, this commission bearing date of June 13, 1801. He later served as sheriff of Athens county, representative in the Legislature from that district, associate judge for Athens county and in other capacities, and in 1835 was elected associate judge for Mercer county, which then comprised a portion of what is now Auglaize county. In all, Judge Robert Linzee rendered public service in no fewer than thirty-two different capacities. He spent his last days on his Oldtown place, his death occurring on January 31, 1849, and it was there that his family was reared, the nine children of this family including the late Judge Benjamin Linzee, formerly and for years probate judge for Auglaize county, as is set out elsewhere. The old red brick house of the Linzees on the north bank of the Grand Reservoir is still standing, one of the real historic landmarks of this region. Judge Benjamin Linzee was about five years of age when his father moved up into this country and he grew to manhood on the " Oldtown" farm west of St. Marys on the north bank of the Grand Reservoir. He completed his schooling at 206 - HISTORY OF AUGLAIZE COUNTY Piqua and when twenty-three years of age was elected treasurer of Mercer county, a position he occupied for nine years. In 1867 he located at Wapakoneta, where for three years he was engaged in the hardware business. Meanwhile he had been continuing his studies in law under local preceptorship and presently was admitted to the bar and began the practice of law at Wapakoneta. In 1888 he was elected judge of the probate court and by successive re-elections served in this capacity for nine years, after which he resumed his practice and so continued, at the same time developing his considerable land and oil interests, until his death when well past ninety years of age. QUAINT STORY OF THE OLD COURT. When the first seat of justice throughout this region was established at St. Marys (then in Mercer county) this county was included with Montgomery, Miami, Shelby, Allen and VanWert counties in the old Third judicial district. As noted above, Judge Crane was president judge when the first court was held at St. Marys. During the following fourteen years Judge Holt presided, followed by Judges Helfinstein and Goode, who each presided seven years. The presiding judge rode around the circuit accompanied by the lawyers, after the manner of the old "circuit riding" days. There, of course, were but few law books in the circuit and each lawyer was compelled to rely upon his individual legal ability, independent of reference. Judge Crane's reminiscences carry the following story relating to an incident connected with the first court held at St. Marys. The grand jury had "retired" to the easy comfort of a pile of logs under a large shade tree to hold a deliberative session. The judge was in the cabin court room awaiting the report of the grand jury when a burly fellow wearing a red hunting shirt came forward, leaned his rifle against the side of the door and, placing a hand against each side of the door cheek, asked the court : "Do you know this old hoss?" HISTORY OF AUGLAIZE COUNTY - 207 The court took in the situation and said, "Mr. Sheriff, put the 'old hoss' in the stable until further orders." The sheriff conducted the fellow to the place used as a jail and when he became sober the judge directed the sheriff to "turn the `old hoss' out." It was afterward that the jail above referred to was erected, the structure that was burned by the act of an insane prisoner. Afterward a two-story log house on Front street was used as a jail, the sheriff living in the house. The old court room was on the second floor of the court house, the steps to the same ascending from the outside ; the county offices occupying the first floor. An older chronicle relates that "owing to the exposure and inconvenience of those days they were careful to not hold court during cold weather." In addition to the county courts, there are two justices of the peace, with magisterial powers, in each township, the present (1922) justices being as follows: Clay township, J. W. Bailey and M. L. McDougle ; Duchouquet, R. G. Herrmann and B. G. Belcher; German, Theodore Purpus and Ferd Nieter ; Goshen, J. R. Cordrey and George Conrad ; Jackson, Louis Drees and J. B. Piening ; Logan, Clarence Lathrop and D. M. Ramga ; Moulton, Green Bailey; Noble, John Folkner ; Pusheta, John C. Fisher and Lorenzo D. Williams; Salem, J. T. Reed and A. S. Gierhart ; St. Marys, Tim Milnor and G. M. Radabaugh ; Union, W. B. Watt and C. M. Metz; Washington, A. H. Steinecker and E. J. Rodeheffer, and Wayne township, Marion Ohler and S. H. Smith. There is an excellent law library attached to the court in the court house at Wapakoneta. The present (1922) officers of the court are : Judge, Fernando C. Layton; clerk, Bert T. Blume; deputy clerk, William E. Keve ; prosecuting attorney, Karl Timmermeister ; sheriff, Bob Ewing; deputy sheriff, Ed May; official stenographer, Clifford Blair ; court bailiff, Robert C. Howell; custodian, Joseph Sell, and jury commissioners, S. H. Beal and J. T. Howard. 208 - HISTORY OF AUGLAIZE COUNTY ROSTER OF THE AUGLAIZE COUNTY BAR. The present roster of the attorneys practicing at the bar of the common pleas court of Auglaize county and resident in this county follows : Robert B. Anderson, David A. Armstrong, Otto Boesel, Lawrence C. Brodbeck, Frank P. Connaughton, Arthur L. Combs, W. T. Copeland, Anthony Culliton, Henry R. Dittmer, L. C. Hirsch, Samuel A. Hoskins, Jacob T. Koenig, John H. Koenig, Roy E. Layton, Emmett D. Lusk, John H. Musser, Rolla Rogers, Lewis Stout, Clement A. Stueve, Theodore H. Tangeman, Karl Timmermeister and Herman S. Vaubel. In addition to these the following lawyers, formerly resident in Auglaize county, have practiced at the bar of this court in years past : Jacob Alspaugh, George W. Andrews, Christian Barr, L. N. Blume, Francis Bowsher, Theodore Brotherton, Charles Bullock, John Caples, John J. Connaughton, Calvin T. Cook, C. W. Cowen, Joseph B. Craig, William M. Crane, George R. Davis, W. E. Detweiler, Benjamin Devore, Michael Dumbroff, Samuel Gnagi, J. H. Goeke, Eugene A. Hauss, David Hirsch, Jr., Charles F. Herbst, Frederick M. Horn, Philip Jackson, Gilbert Kennedy, Mark Kolter, Thomas Lane, C. A. Layton, Fernando C. Layton, W. V. M. Layton, Benjamin Linzee, A. J. Lusk, R. D. Marshall, William Miles, Daniel F. Mooney, William T. Mooney, Samuel R. Mott, Sr., Samuel R. Mott, Jr., William McKee, Robert McMurray, E. S. Nichols, Clement Ohler, Edwin M. Phelps, Joseph Plunkett, L. C. Sawyer, John T. Schoonover, M. D. Shaw, L. M. Sikes, Charles V. Smith, Edward Smith, R. B. South, D. J. VanAnda, F. C. VanAnda, John C. VanAnda, A. N. Vandeman, Ed B. Walkup, John Walkup, Joseph J. Walter, Alexander Waters, R. L. Waters, Anthony F. Wendeln, John S. Williams and C. W. Williamson. The Auglaize County Law Library and Bar Association was incorporated on January 25, 1895, the following members of the bar being the incorporators : L. N. Blume, F. M. Horn, J. H. Goeke, M. D. Shaw, J. J. Walter, George R. HISTORY OF AUGLAIZE COUNTY - 209 Davis, S. A. Hoskins and C. A. Layton. The initial officers of this association were as follows : President, L. N. Blume ; vice-president, C. A. Stueve ; secretary and librarian, F. M. Horn; treasurer, C. A. Layton; trustees, L. N. Blume, C. A. Stueve, George R. Davis, J. H. Goeke and J. J. Connaughton. The present (1922) officers of this association are: President, C. A. Stueve ; vice-president, Otto J. Boesel ; secretary and librarian, Robert B. Anderson; treasurer, Emmett D. Lusk, and trustees, Anthony Culliton, Lewis Stout and J. T. Koenig. The association maintains an admirable law library in the court house. (13) |