Tombstone epitaph., 1919-03-16
HISTORY OF CUNNINGHAM COSTELLO CASE


 makes interesting reading. The his tory of the case from the time it was filed is as follows. Three lawyers have died since the case was first filed.
 The abs;rac, of record in the case filed with the state supreme coIr: filled two legal volumes of 500 pages each-a total of 15O0 pages of printed matter.
 Briefs before the supreme court filled one volume Of 542 printed pag- es.
 The case has been constantly be fore the courts for seven years.
 Al least l3 attorneys have appeared 2; one or another time for plaintiff and defendant.
 Two superior court judges and the supreme court have heard ,he case, and every attorney in the state has followed i; as one of the greatest in the history Of Arizona's bar.
 The suit was filed on April ,, 1912. by Emil Marks, guardian of the estate oi Mary Aileen and Patricia Julia Cunningham, against the estate Of Martin Costello. The plaintiffs are the children of Patrick Cunningham, who died July l. 1899. and the suit was lropght ,o recover s5s5,s1s.3i. with interest from March l, 1912. II was sui, in equity for an account ing. the basis being the claim that Patrick Cunningham was half owner with Martin Costello in 17 claims in the Warren Mining district, which Costello had sold af,er Cunningham's death to the CaIuUe. & Arizona and Shattuck companies for about s1.o00,- 0c0. The sales were made during the years 1899 10 1904
 Some of the claims involved in the dispute were the original claims of the Calume; & Arizona company in the Warren district. the properties on which they entered the mining activi- ty which has made them one of the big producers ot the Southwest In cluGed in this number was the Irish Mag. property which the company is still working and which forms an i'm por:aYt part of their holdings.
 The defense was based on a gener- al denial of Cunningham's ownership in the claims, except as to six claims ia which Costello had made settlement with Mrs. Julia Cunningham. the plain tins mother and guardian, during the year 1901. The defense also set up a complete release given to Costello by Mrs Cunninghamm as guardian Of the children, as administratrix of the estate and as Curnincham's widow
 The case was first tried before Judge F. O. Smith. Of Yavapai coun- ty sitting on the Cochise bench, Judge Fred Sutter being disqualified. This trial started on September 24, 1912, and resulted in a verdict in favor of the plaintiff in practically all issues If the verdict had stood the plaintiffs would have had judgment in the sum of approximately s600,0O0. The court however. returned a judgment of $124.- eee for the plaintiffs. Both plaintiff and defense appealed to the state su- preme court. where the judgment was set aside and a new ;riaI ordered.
 The case was retried at Tombstone before Judge Lockwood beginning in August, 1915. and occupied one month The jury returned answers to approx imately 100 interrogatories and on the basis of the verdict Judge Lockwood gave the plaintiffs approximately $13Oi- 900. Both sides again appealed with the result that the judgment of the superior court was affirmed except as to three calims, on which the supreme court ordered partial new trial The judgment thus affirmed reached ap- proximately s155.Oo0 in May, 1918.
 The settlement effected was for ap- proximately s2oo,0oo which satisfies the judgment affirmed by the supreme court and compromises the remaining three claims, which were sold by Coe. tello for approximately $250OO0.
 Attorney for the defense were FL Iinwood & Ross. Ben Goodrich, Joe Scott. John s. Williams (deceased). E. J. FIannigan, James S. Casey and Lee O. WooleTy. Attorneys for the plaintiffs were Eugene s. Ives, (de- ceased). chief counsel for the Gun