The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-02-05
Tho District Court Room Crowded to
Hear Him Argue tho Davis
Will Case.
Roots Lawyers Attacking tho
Manner OF Selecting tho
Jury at Butte.
Judge j. j. Notation. Of silver Baw,
Makes His Statement TO tho
Supreme Court.

preme court in the now celebrated Davis
will case drew an immense crowd to tho
courthouse Yesterday morning. Most Of
the people were disappointed, for the
famous lawyer did not address the court
until late in the afternoon, when he made
a short argument. The principal argument
was made BY Hon. J. B. Clayberg. of this
city, who ID associated with Colonel Inger-
soil and Nathaniel Meyer. of New York, in
the interests OF Henry A. Root and the
other contestants. The proposition before
the court called for cold law, and spread
eagleism was at Z discount. II would tax
the powers Of Colonel Ingersoll TO the ut
most to 10 weave his flowers Of rhetoric
among the logical statements OF a legal ar
gument as to make it attractive to a crowd.
The three judges of the supreme bench
left their small court room on the second
floor of the courthouse at ten O'Clock, and
sat in the large district court, which was
vacated by Judge Hunt so that the large
crowd might nave an opportunity TO hear
Colonel Ingersoll.
When the chief Justice announced that
the court was ready to hear the arguments
everyone expected to see the lawyer Of Star
his seat. Judge EoHatton, Of the Silver
Bow district court, was present in obedi-
ence to the order Of the supreme court to
show cause why he should not be prohibit
ed from going ahead with the trial in his
court. The attorneys for Root had secured
the order from the supreme court N aft
davis. In these it WAS made to appear
that Judge McHatton and the members Of
the trial jury panel were preiudiced against
the contestants. II was also stated tho
rupv had NIT hoQn drAWn QONnPHinO tn law
This was the question before the supreme
court yesterday. The contestants argue
that the old territorial Law governing the
manner of selecting the jury panel is in
force. Under its provisions three commits
sioners are app1 Sahh wno .a select s So9 names
the converting Of court at the commence
meut of a term are opened in the presence
of the court officers. From this list juries
are then selected. Since the admission of
the state it has been the practice of the dis
TT srios Judges gssnd to ; Sal1 . xhs Pesit jury ~
their opinion it was necessary
to do go. It is this custom which Roots
attorneys are now attacking, and the su-
preme court is called upon to decide whether
1t ia regular, or whether the old practice
should prevail. II the later custom is sus-
tanned the contestants will have to comply
with it.
Judge Mediation did not have his state
ment ready when the court met. He pre-
scented it in the afternoon. 1t recites that
on Dec. 20 last, John A. Davis lawyers and
5 HSaTs Notation sfGsts 0 ss Baste a fos : sss pa Dsposs
OF liking a date or which 70 go to trial on
the contest Of the will. Judge Mediation
heard the arguments OF the attorneys.
Having regard to the allegations made by
the parties, and the time that had elapsed
since the alleged will was presented for pro-
hoto and nQrtiCu10 rlv CSnro tho iocnoa ha1
been settled, and all the facts n circum-
stances, the judge was of the opinion and
therefore ruled that the contest should be
set for trial on the second of this month.
Roots attorneys. applied for q continuance
on Jan. 26, but filed no afidavits
Mediation adjourned his court until four
o'clock on the afternoon of January 18th on
account of the death and funeral of the
sherif's daughter, and the matter was
postponed until that time. Afidavits were
then filed, but the same did not show the
names of the witnesses desired by the CON
testants, nor the facts expected to be proved
by them. To this Davis attorneys made
objection and the court ruled at the time
in accordance with the universal practice
of the court that the facts expected to be
proved, together with the names of the wit
of the contestants the Judge gave them I'M
til the next day at three p. m. No showing
Then having been made OF the names of the
witnesses desired by the contestants and
the facts expected to be proved. the Judge
in the exercise of his judicial discretion,
and as he believes justly to all parties, over
ruled the motion for a continuance. He
made no other ruling than stated, nor did
he override the application for q c%ontinu-
ance because it was insufficient under any
other rule.
Judge Notation submitted to the gu
-a-,1 1,,w khHk kLn - e-Ir 7. "
writ directed to him, touching the appiica-
ton for a continuance on the part of Root
and the other contestants, was both irreve-
liant to the matter of the writ. and not
within , the jurisdiction of the supreme
court. He also denies that there is no legal
jury in attendance upon the district court
of Silver Bow county, nor that the court
purposes or threatens to compel the CON
testants to proceed with the trial before a
jury not drawn, or empanelled
according to law; or that he has never since
the court was organized complied with the
provisions of the act of March IA, 1888.
He says he never appointed any jury COM
act, nor was any jury commission appoint
cd at the last term Of the territorial dis.
trict court OF Silver Bow county. Unde-
and in accordance with section fif-r
teen of the act he has caused a petit jury
to be drawn whenever necessary, and be-
va oS AAoW GA IA IN tElHlh To
juries, civil and criminal, have boon Ind
from the time of the organization of tho
court until now. Judge McHatton saws
that the counsel for the CON
testants were we'll informed of
the practice and procedure of
the court in trial of coses to juries at and
long before the presentation of the alleged
will for probate; that they did not at any
time suggest to the court that the practice
WIS irregular or illegal, until the day when
the hearing was fixed. He denies that
grand or petit juries are drawn or sum-.
moned to appear in his court early in March
or October of each year or at other stated
times. The judge does not believe that a
majority of the persons composing the
panel of the petit juries of his court are
prejudiced against the contestants, or that
they cannot have a fair trial. He does not
know whether the proponents of the will
and their friends have been diligent in Gre
ating prejudice against the contestants in
Butte since the filing of the petition for
the probate of the will. He believes that
under section fifteen OF the act of March
IA, 1889, a fair and impartial legal Jury can
be procured.
The judge also denies that Root and the
other contestants are entitled to have the
contest heard before a jury drawn from 300
names selected as provided under said
act. A denial Ia nlso made that
the Judge ia ~preiudiced. and he