Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1894-03-01

O'Clock this morning the roster contract
case was called for trial by Judge r.
g. Siebecker in the Dane county circuit
court. Attorneys John NJ. DIN, of
Madison, and NJ. G. Jeffris, Of James
vile, of counsel for the plaintiffs, were
OF hand bright and early, loaded down
with documents galore. Their clients,
George and Robe Dow, w. A. Tracy
and w. J. P. McFail were also on
hand early. ALI of the defendants,
Gov. Peck, Attorney General O'COnnO1
Assistant Attorney General Clancy,
eX-Private Secretary Clark, eX-Ad-
jutant General Doe and Senator Bash
ford were there as We're all of their
attorneys with the exception of Col.
Clarls Winans and Hyzer, of james
vile, and Z. Z. Villas, one OF the gov
ernor's attorneys. The other defend
ants attorneys are J. c.. Flanders, OF
Milwaukee, Sutherland Il Nolan, OF
GAINESVILLE, and H. w. ChynOWeth.
Burr w. Jones, +. NJ. La Toilette, T..
J. Lamb, and 3. J. Stevens, Of Madison.
An accomplishment Of slsrely great
moment was, the securing of "a jury
the first day of such an Important trial.
At the opening of court Clerk Feb
landt called the jury roll with the re
suit that but twenty odd were found
to- be present. AS soon as the judge
had called the case, Attorney Oln
asked permission to add an allegation
to the complai mt TO the effect that the
defendants conspTred to cheat and de
fraud the state and as a necessary
part and step to that conspiracy to
cheat and defraud the plaintiffs in; this
action.
Mr. ChynOweth- said that he did not
know but the plaintiffs had concluded
that they could not show conspiracy
to defraud the plaintiffs, but might
have enough left to show conspiracy
to defraud the state. The two theories
were at right angles. 1t might be that
the very failure of the defendants, to
conspire to defraud the state consti-
tuted the conspiracy to defraud the
plaintiffs.
1t was Il point which the plaintiffs
attorneys did not care enough about
winning to spend much time in argu-
ment.- Mr.. Olin stated that the official
positions of the defendants and their
officials acts, as shown in all the plead
ings, and evidence; involved this QueS-
| ton necessarily. He should not ask
or expect to recover unless it was
shown that the defendants conspired
| to defraud the plaintiffs, but the at
tempt to defraud the state was a nee
essary part of that conspiracy.
Mr.. Jeffris explained that the new al
legation was probably fully covered in
the complaint, but they wanted to make
sure of it. He wished to inform the
/ gentlemen, and this was a proper time,
that they were not trying this case for
newspaper reports and the defense
would find it cut. They were trying
this case for $4,000, and if, as Mr.
Chynoweth said, the allegation was OPP
posed to the recovery of the money,
the defense could not complain
The court denied the amendment as
! unnecessary and it might lead to mis-
conception. If he understood the COM
plant, the allegation was that defend
ants conspired to defraud plaintiffs.
If the testimony should show that there
was conspiracy to defraud the state,
is was purely a matter of evidence and
would stand as such.
There was Il lull in the proceedings
at this point and Judge Siebecker was
about to adjourn court until a time in
the afternoon when trains from all
parts Of the county would have brought
absent jurors to the city But it
was Attorney Flanders time to spring
a surprise. He wanted the court to
consider how many strikes the defense
would be entitled to in the selection Of
a jury. He said as far as he was con-
cerned, representing Gov. Peck, he
wanted three strikes himself Mr.
Olin argued at length against each Of
the defendants claiming such right.
This was one case, not two, or five
cases. Here were half a dozen
plaintiffs and half a dozen defendants.
The plaintiffs had but three strikes. If
the defense was allowed eighteen
strikes, where would the plaintiffs
stand for trial?
!, Mr.. Flanders replied in advocacy OF
; the separate rights of the defendants
in the case. He argued that each de-
PENDANT having a separate and distinct
. defense to one general cause Of action
was entitled to three challenges, and
especially for Gov. Peck he insisted
that the interests of defendants were
adverse and it would be utterly i'm
possible to make one answer to the
plaintiffs complaint with its separate
allegations which affected some Of the
defendants and not others. Mr.. Jones
also argued for separate rights for
the defendants, as did Mr.. Chynoweth
and Mr.. Lamb.
The court explained that he under
stood that the complaint set forth a
wrongful and wilful purpose to de
fraud, and the conspiracy was merely
an incident to that purpose. and that
the jury might if it SO pleased find
against only one of the defendants.
Mr.. Jeffris replied to the several ar
guments with citations. and was fol-
lowed by Mr. DIN, who declared that
no similar case had been found in au-