The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-06-12
BIASED AND @pREJUO|C[O.
Henry A. Roots Attorneys Recite
Why They Cannot Get a
Fair Trial.
Believe Silver Bow Citizens and
the Judge Are Against
Them.
How the People of That County Would
Vote II tho Question Were Sub
Mitted to Them.

Henry A. Roots attorneys fled briefs in
appeal cases from Silver Bow county. In
one Of the briefs tho attorneys take occn-
sion to say: Never before in the history
of judicial proceedings in Montana have
individual rights in n law suit been made q
subject of such comments, or converted in
to a matter of such public concern ~eliciting
aS this hos such public expressions Of opin-
Ion of leading business men in the county
Of Silver Bow, and calling forth a1ch COM
ments by tho leading journals of the press
of that county, upon the propriety or i'm
propriety of tho rulings of n judge, in this
contest. 1t is high time that every one
should learn that the functions and duties
of the courts in the administration of JUS
tice in passing upon private rights stand
far above the clamor of the mob and can
not be prostituted at the behest of the
masses in shaping the decisions of the
judge or in influencing the verdict of a
jury" After reciting the history of the
case the appellants say: 1.-THE respondent
claims that the alleged will sought to DO
probated was the last will and testament of
deceased, and the appellants claim that
1t ls a forgery, and that a subse-
quent will was executed by deceased
by which all former wills were revoked, and
that some time after the execution of the
subsequent will it was destroyed, and the
deceased died interstate, md these are sub
stantlally the issues raised by the plead
ings. A great many applications for orders
were made by respondents which were
granted and u great many applications for
orders were made by appellants which were
over-ruled, all of which will appear in the
record but are too numerous to be presented
in the brief and to which the attention of
the court will he especially directed in the
argument OF this appeal. On April q these
appellants, believing that tho citizens of
diced against them and in favor of respon-
dents, made their motions for a change of
venue-one based on the bias and preindice
of the judge and the other on the statutory
grounds that there is reasen to believe
that an impartial trial cannot be had in
Silver Bow county,"
In speaking of the commission to take
the testimony of j. G. Sconce, the only liy.
ing witness to the will, the appellants say
they applied for an order extending the
time for filing cross heterogeneous. "The
commission WAS to issue for the purpose of
this deposition on Feb. y, 1891, which did
mot afford sufficient time as shown by Roots
affidavit to obtain Observation-Disclosures
absolutely necessitating such application.
Allowing five days to transmit the notice
and lnterrogatorles, five days to return
same, and four days totransmit to the com
missioner at Bloomfield, Iowa, the 4th of
Ma'ch was the very least possible time re-
quired, and all that was asked by appel
lants. The case was then set for May 20,
making seventy-fve days from the date of
the application for the order was made to
the day fixed for trial. The court
promptly overruled the application, A
bare suggestion of the situation
presents II case of bias and prejudice, result
acquired, seldom to be found in the history
OF cur OWL jurisprudence. Were it not for
She fact that tho prejudice of the citizens of
SILVER low county is so universal and pro-
nouEced against respondents; that the
judge is one of these citizens; possessed
with those feelings and emotions ordinarily
possessed by tho generality of mankind, and
consequently unconsciously influenced by
that prevailing bias, his action in refusing
the application would be utterly irreconcil-
able with those attributes of integrity, JUS
tce and intelligence, with which he is en-
dowed. Considered, however, in the light
OF surrounding circumstances, the course
that led to such Il ruling is clearly manifest.
The more we %aDalyze the more we consider
this transaction of the judge, the more We
IN hIIA GAo w we uUl
lied that he is swayed by that local preiu-
dice 30 universally prevailing in the com
munlty in which he resides. 1t will not do
TO say that there was not ample time to have
obtained the testimony for the trial, for
this is inconsistent with the facts within
the knowledge of the court. 1t will not do
to say that the testimony of Sconce was
uni,nportant, for he is the only living at
testing witness to a will upon the validity
of which the dist ,ibutlon of n vast estate
depends; nor will it do to say that the
judge anticipated that the cross-interroga-
tories would elicit some damaging testi-
mony to the cause of respondent, for this
would directly tend to impugn the purity
of his motives. This single act, isolated
and alone. unexplained and unexplainnble,
Is sufficient within itself to establish the
fact that the judge partook of that local
prejudice, shown by this record to SO uni
versally prevail in the county in which he
lives, and is reconciliable upon no other
theory consistent with his ability and in
%teerity. Nevertheless, it was a ruling of
the judge upon n matter Aindividual. and
not properly public. in it's character, which
II submitted to n vote of the citizens of
Silver Bow according to the expression of
leading business men, when interviewed
upan other decisions of the court in this
%contast) would receive their unanimous
approval-there would not be u dissenting
vote.
THAT the application should have been
granted upon the bias against appellants
engendeled on account of their non-resi-
dence, and the fact that seven-eighths of
thisv vast estate, comprising one-ffth of the
taxable property, would be taken from the
county on that account; the residence of
respondent in the county, his connection
with n wealthy bank and its influences, the
local prejudice and general interest mani
%festeo, tho discussion of the question by
the newspapers and leading business men,
making it a matter of public interest, and
divertlng public sentiment into n state of
hostility to contestants, entitle the appel
lants to n change of venue upon reasonable
and fair princll lc."
Hon. w. W.. Dixon and Judge Kirkpatrick,
of Butte, looked over the briefs and the
records in the case yesterday. They have
two weeks in which to file reply briefs for
the respondents. The court made an order
directing that certain papers now on file in
the district conrt ut Butte BIO supplied in
the record.
Wise aud Company win.