The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-04-14
BRIEF OF DEMOCRATS
Proceedings Of the Republicans I'm the
Lower Court Pronounced N Farce
-FesIer's Amdnvit.

The attorneys for the Democratic State
committee filed In the Supreme Court yester-
day the brief in the suit brought to set aside
the apportionment act OF 1855. Several weeks
ago the committee entered the case by filing
a motion to dismiss the case. The court
gave them until to-day in which TO file the
brief on the motion. The brief is lengthy.
covering over twenty pages of typewriter
matter. Following is the argument:
The motion to dismiss is based on the
theory that where In a controverted mat
ter there are adverse interests two persons
interested on the same side of the contro-
versy cannot make I'D case, prosecute it
to final hearing and obtain a judgment
binding on their adversary.
We submit that the proposition that the
rights OF all the parties on one side of a
against them, in a litigation made up be-
tween, and carried on by their adversaries,
Is monstrous one, which has never had
Let US suppose that there is controversy
between two families. and the courts are
to be appealed to to uecide IL. Before the real
litigation Is commenced the head Of one of
the families-the father-employs lawyers
ana ana sends his son ous 10 IND another rela-
tive VINO viii act as piaintin-the relative
commenced with the relative plaintiff,
and the son who has procured the plaintiff,
as defendant-the parties go into court
waive summons. have a demurrer disposed
Of pro forma, and in week from the COM
mencement OF the case have the same in
the Supreme Court Of the State FOR final de-
termination Where is the lawyer who viii
stand in the way OF motion to dismiss
such case as collusive? 1t would moi
matter matter nov how large the family or how
such litigation would be an outrage upon
the rights OF the parties to the real con-
troversy, who had never heard, nor given
an opportunity 10 be heard, at any stage
OF the proceeding.
In the case at bar, as shown by the af-
hdavits filed, there is a controversy in
which nearly six hundred thousand voters
are interested. approximately speaking, one
half OF these voters are represented by one
OF the state committees mentioned and the
other half by the other The controversy
Is as TO whether the election ought TO be
held under the provisions of the apportion-
ment law OF 1sS5-one party claiming it
to be valid. the other contending that it is
void.
CASE BROADLY STATED.
zone committee, the head of one family,
resolves that the question shall be tested,
and by resolution hires lawyers, directing
them to see to it that a plaintiff is found
These lawyers prepare a complaint-one of
the men who is to be defendant is de-
puted TO find plaintiff-this defendant pro-
cures a nominal plaintiff, whose name is
inserted in the complaint, which is filed in
a court of which that defendant is clerk,
and the judge of which belongs to the same
~ GQ.
judgment rendered. binding upon the thou
sands of men in that county who represent
the adverse interest, but who are thus kept
out of the court which is passing upon
their rights and prerogatives as voters. And
now in the Supreme Court of the State a
judgment is asked which will conclude the
ested. who can only be heard here through
the medium OF an amicus curiae. This
broadly stated, is the case which is pre-
sented to the court on motion to dismiss
DrlQCinal ha mo-
ton to dismiss is based are undisputed. 1t
Is shown by the affidavit of Mr.. Holt and
is not denied:
"Ffrst-That in this political controversy
all the parties belong to the same political
party.
purpose as TO the litigation I'm hand.
.1rhird-That the defendant Fesler. after
taking an active part in the proceedings
or the Republican State central committee,
which results in the adoption of a resoIu-
ton that this suit should be brought was
deputed by the committee to cast about
ana a1, ma plaintiff and induce the said
plaintiff and induce the said Brayton to
permit his name to be inserted in a blank
left in a complaint which had heretofore
been prepared by the said attorneys for
said committee.
"Fourth--That the said Brayton had no
thought of bringing an action-but that the
Republican State committee having re-
solved upon bringing this action, had hired
lawyers who, under such employment, had
prepared the complaint herein; that the
complaint was complete with the trifing
exception that a piaintff was lacking; that
Fesler, defendant. went out and after the
personal solicitation referred TO. brought in
the name of the present plaintiff, which
was inserted and the complaint fled.
"Fifth-That the plaintiff named is not
the real plaintiff, that he employed no at
torneys and did not even know at the time
was being Instituted, and that he has no
real controversy, or any controversy, with
the defendants about the question involved
as a stalking horse by some parties who
desire to be informed for their own adj
vantage as to what the law is on a given
subject.
MR.. FESLER'S AFFIDAVIT.
ut Is shown by the affidavit of appellant
Fesler. herein filed. that after it had been
resolved by said committee that this action
should be brought, it was further resolved
we quote literally from the affidavit-'that
the manner and court in which such suits
should be brought Qf it should become
necessary and the selection of the parties
plaintiff thereto, should be determined upon
consultation. by the advice of the counsel
OF said State central committee page :.
OF affidavit in opposition TO motion 20 dis
miss.D Here we have a frank account, I'M
der oath from Mr.. Fesler, as to the manner
u lHCuDdtiOu. fktpuDICdn state CEN
trail committee resolves that a lawsuit
shall be instituted. Pursuant TO the resOlu-
ton. lawyers are hired by that committee
to institute and prosecute suit. Who are
TO be the parties litigant? The controversy
is on-but who are the contending persons
Never mind, that is question TO be de-
termined later on. We have hired LAWYERS.
and have resolved that in addition to their
own duties, they are TO find the litigants-
real live parties-who will serve as figure
heads-in this existing controversy
And 50 the attorneys proceed-the COM
plant. voluminous as IL is. with its tables
of figures and nice mathematical calcutta
tions. is prepared with great skill and is a
monument of the ingenuity and assiduitv
of counsel. 1t Is finished. Only one thing
Is now necessary to set the machinery OF
the law IN motion-and that Is to fird A
piaintiff who viii fit the complaint as writ
ten.
The search for a plaintiff begins. The
attorneys, by the terms Of the resolutions ,
have plenary power in this regard, and so
they send out the defendant upon the street
to make diligent search for a person who
Will measure I'D to the standard in all re-
spects, and be a good all around plaintiff
The history Of the defendants search for a
plaintiff Is not yet written. The incidents.
interesting certainly, perilous, perhaps, at
tending his search, are as yet in the bosom
OF our adversary; but that his efforts were
crowned with success Is shown beyond
question, for he found a plaintiff who con-
sented. as a matter of favor to the de-
fenfant. to act or stand and sha splaCte cd