The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-11-23
IN HALLS Of JUSTICE ]
An Old Time and Historic Civil Suit
Brought to An End BY
Stipulation.
It Was On the Docket Ninataen
Years and Had An Inter
esting Career.

! esting Career.
Notable Men Who Were Engaged A. At.
torneys-The Original Litigants Never
Lived to See It Settled,
The oldest case on the civil docket Of the
district court of Lewis and Clarke count,
was settled yesterday when Judgment and
decree was signed by stipulation in favor Of
the plaintiff and against the. defendant.
There is hardly All attorney in. Helena who
has lived here any length Of time, that has
not had some connection with this case.
1t was begun nineteen years ago and has
been in the United States supreme court
besides having been brought up in the su.
preme court Of Montana several times. On.
ly few hundred dollars were involved,
but its trial has established many prece-
dents. and altogether. the case will be a
matter Of interesting history.
Eliza Roush and George Roush vs..
Henry Fort, Fred Reece and /. W.
Stoner, was the title Of the case.
In the spring of 1871 Fort foreclosed a
mortgage on certain real estate belonging
to the Roushes. The property is located on
Main and Rodney streets and Fifth avenue.
The decree Of foreclosure and order OF sale
was duly issued ana DR.. w. L. Steele, then
sheriff, was appointed to advertise the sale.
The property was bid in by Reece. Stoner
and Fort, for the sum OF IS 800. The time
the decree was entered Fort agreed with
the Roushss to take possession Of the prop
erty and to apply the income from rental
70 the payment of Roush's indebtedness,
and that he would not sell the property
until November, 1871. The time for settle
but he omitted tc credit the Judgment with
the amount he received. Roush found this
out; also that the property was sold in ex-
cess of the Judgment and decree, and there.
by hangs tale.
Roush brought suit, as stated, in 1872 to
set aside the sherif's vale and against the
defendants, claiming Mat Fort received an
excess of $500 from the sale which. it is
said, was not credited to the Judgment.
George j. Symes was hhe first attorney in
the case. Symes was tired out of court
upon application of the bar association.
He left Montana and went to Colorado,
from where he was elected q congressman
He will be remembered as the man with the
foghorn voice.
The suit was referred to- Judge w. E.
Cullen as master in chancery. This, by the
way, was the first time master in chan
Gerry was ever appointed in this territory of
Montana. In fact. this was She first and
territory OF Montana.
Toole & Toole (E. w. and Jos. K ap-
peared for the defendants. Judge Cullen
reported and the result was than Judgment
was rendered in favor OF the defendants.
The case was appealed to tho supreme
court. Judge D. s. Wade was then on the
bench and he reversed the decision of the
lower court. and the sale was set aside as
far as Fort was concerned, though the de-
cision was affirmed as it related 10 Reece
and Stoner. a.
Being sent to the lower court again San
ders Cullen appeared for the plaintiff 5,
and Chumasero and Chadwick we're ems
was reported to Isaac R. Alden as referee.
He reported and Judgment was rendered
against the defendant, Fort. This was in
1877. The case went to the supreme court
again, where the judgment Yves modified
and affirmed. Voolfolk and Porter then
appeared for Fort, the defendant, in an APP
peal to the supreme court of the United
States. Here Judge Wade's decision was
reversed and the case returned to the Mon
tana courts by due process.
Edgerton d Weed, next appeared as attor-
neys for the plaintiffs Toole & Toole again
appearing fOr the 0efendant6. Inc case at
this time had been in the courts eleven
years. In 1884 Thos. F. Casey, deceased,
also appeared for the plaintiff. Massens
Billiard was appointed referee but he never
acted. In 1887 G. w. Turner, appeared al
attorney for the plaintiff, afterwards the
firm of Kinsley & Turner. About this time
Judge Wade, who had acted as Judge
throughout the litigation and who had seer
himself reversed twice by himself, retired
from the bench and Judge N. w. McCon.
nell succeeded to his place.
Mr.. Turner introduced long, elaborat,
and amended supplemental complaint
which Judge Mcconnell allowed to be filed
but he subsequently, ordered it stricken
from the files. The case remained prac.
tically in the same condition from 1884 un
| til the present date, when the judgmen
and decree was signed by stipulation a
outlined in the beginning. Cullen, Sander
d Shelton were the attorneys for the plain
tiff at the conclusion of the case and War
| rem Toole represented the defendant, Fort
Roush has died since the litigation begal
and Fort is also dead. just what this liti
cation cost will probably never be known
Richard Lookey. who holds mortgage OF
the property has settled with the plaintiff
Mrs. Roush, and one of the most interest
ing civil suits ever recorded has beel
brought to an end.