The Indianapolis journal., 1901-05-01
CHARGES MADE IN BRIEF
ATTORNEY Il. T.. JOHNSON ATTACKS
FORMER JUDGE MCABE.
Strong Language Used i'm Brief Filed
i'm the Supreme Court i'm Hag-
gerty-Wagner Case.

One Of the most sensational briefs filed
in the higher courts of this State in many
a day has just been filed in the Supreme
Court by T. Z. johnson. an attorney hav-
ing an office I'm the Stevenson building, this
city Mr. Johnson represents Mary ]. Wag
ner in her appeal against Rebecca s. and
James Carskadon.
The case is one of several ancient cases
originating in the Superior Court of this
county. The controversy involved originated
in partition of land in 1886, in which Mrs.
Wagner's inchoate interest in a piece OF
property was not divested by having her
appear In court as a party to the proceed
ing. The case of Haggerty vs.. Wagner.
reported in 14S Indiana 625. decided that in
a proceeding in which il was necessary to
order a partition of land it was not neces-
sary TO bring in a wife who held only an
inchoate interest. That case bears the
name of Judge McCabe, recently retired
from the bench Of the court, as the author
OF the opinion. In his brief Mr.. Johnson
makes a severe arraignment of Judge Ne
Cabes motives in deciding the Haggerty-
Wagner case as he did. The brief COM
mences its attack on ex-Judge McCabe
thus:
III lilS DIlel we 40 lol utSlIe 10 De Te-
garded as personal in singing out Judge
McCabe, but 1t is a matter of convenience
In this discussion for us to do so. The
opinion as delivered by Judge McCabe in
the case of Haggerty VS.. Wagner is not the
law. except as he. through the concurrence
OF the majority of the court, has made it
so. In the manner in which we deem best,
1t is without intending any offense to the
ID the opinion as that of Judge McCabe and
IN order to do exact justice to our client
and ourselves it becomes necessary to pre-
sent the facts as we see them relative to
said opinion, which we declare to be most
radically wrong and unsupported by the
law OF Indiana. The opinion of Judge Nc
Cabe reads like the labored effort of a law
yer who has TO defend bad case in court
III which he has a personal interest His
manner or presentation, argument and con-
tentions are certainly not that of a jurist.
while his conclusions are wholly erroneous
He misstates the law on some points, mis-
construes the law as laid down by our
Legislature, cites cases that have been
overruled and criticised. and i'm order to sus-
tain his position has quoted and cited rul-
ings OF courts of other States where
the statute is in conflict with that oS In
diana, and In some instances he misrepic-
sents our position. The opinion is not free
from the appearance OF bias and prejudice.
Are we right in these charges? Let us see"
NJ.
At another point Mr.. johnson SAYS: But
In the case of Haggeyty VS.. Wagner, Judge
McCabe adopted rule to the reverse of
his plain duty and TO destroy that which,
he says Of 1t, plain and imperative as this
language is, it must receive a construc-
tion.' and thereon seeks to destroy this
plain and imperative statute by comparing
ii with some other provision that can have
no relation whatever to it,"
The brief accuses Judge McCabe of leav-
ing out an important part OF quotation
from Freeman on "Cotenancy" and says:
I'VE think il is easy to see why some
lawyers of an unsavory reputation would
not quote the full text of the author but
we are unable to account for so important
a part of the text being left out by any
upright jurist in his Impartial opinion. The
portion omitted Is vital point I'm our con-
tention and supports our position. 1t Is.
however. against the expressed position of
Judge McCabe, which may account for the
omission
The brief states that several years
previously Judge McCabe decided the ques-
ton at issue in the opposite way, and shows
that he was not on the Supreme Bench
for a part of the period intervening be-
tween that decision and the decision of the
Haggerty-Wagner case, declaring that the
judge had ''revolutionized his thought on
the subject
In conclusion the brief says: For the
reason assigned in our briefs herein and
for these constitutional grounds we are
convinced pS our IesedIcH VI the law ol
the case that the case of Haggerty vs..
Wagner should be overruled. as il appears
to us to be only 'judge-made' law There
is not in II even the mock semblance of
due process of law.
Attorneys who have read the document
are wondering whether the Supreme Court
will adopt the same course of procedure
that was employed by the Appellate Court
a short time ago in a case in which George
w Spahr, of this city, filed an objection
able brief and order the brief of Mr.. john
son stricken from the files. one lawyer
said last night that he would not be sur
prised II the court would take more strin-
gent action than was taken In the Spahr
incident.