Indiana State Sentinel

For the Indiana State Sentinel

Marion Court of Common Pleas—again.

Mr. Editor: A writer over the signature of "D." in the tri-weekly Journal of the 6th inst., has endeavored to excite a popular prejudice against the Marion Court of Common Pleas, by a specious, but idle attempt to show that that court will be productive of "useless litigation," an unnecessary charge upon the county, is unconstitutional and in deprivation of the right of the people to elect competent officers. Whether some reasons which did not appear in that article, but were merely personal to the writer—affecting, in a peculiar degree, his sensitive pocket-nerve—I shall not stop to inquire. I propose to prove that all of the writer's propositions are erroneous.

First. The constitution of our State provides that "every person, for an injury done him, in his lands, goods, person, or reputation, shall have remedy by due course of law; and right and justice administered without denial or delay." (Sec. 11.) What then is "useless litigation?" Is it exciting "useless litigation" to afford to every citizen speedy redress for wrongs for which the constitution has provided that he shall have remedy, by law, without denial or delay? And is it dispensing with useless litigation to have courts so organized that the prudent man and the poor man will be afraid to prosecute for the redress of wrongs in them, lest, from inevitable delays, the costs, if the issue should be adverse, or the defendant break up, would not only deprive them of their redress, but eat up their estates? With great deference to "D." it appears to me that "useless litigation" occurs where a court, from the mode of its organization, or the duration of its terms, compels parties, unnecessarily, to appear from day to day, and term to term, with their witnesses, at ruinous costs, and to meet each other frequently at the bar and overhear the disputes of counsel, whereby the most angry feelings are constantly engendered. The dispensing with "useless litigation" would appear to me to occur, where a court was so organized that causes would be tried, with almost perfect certainty, on the day for which they were set, where continuances would only be allowed, when the rights of the parties were shown to urgently demand them, and where the parties should meet each other but once, and the cause be then tried with the least possible costs. Let us see then, which would be least calculated to promote "useless litigation"—the Court of Common Pleas or the Circuit Court. The Court of Common Pleas has no jurisdiction of criminal offences; the Circuit Court has jurisdiction of all the offences of a high grade; and the constitution provides that a citizen arraigned for a criminal offence shall have a "speedy public trial." The Circuit Court feels bound, under this constitutional provision, to suffer criminal cases to be called up for trial at any time, when a civil case is not actually on trial. The consequence of this is, that criminal cases are ever unexpectedly intervening, and getting precedence over the civil cases, on the days for which the civil cases are set; and civil cases are consequently obliged to be put over, and the parties and witnesses to attend from day to day,—increasing in number every day as the parties and witnesses for that day are added to those who are in attendance upon the causes of the preceding days so put over—until not unfrequently from 100 to 300 witnesses are in attendance, with overwhelming and ruinous costs to the parties. Thus too, in nearly every civil case some one or two material witnesses are worried out, and fail to attend, and the case when called up has to be delayed and balked, until the witness or witnesses can be brought to court on attachment; and thus likewise a multitude of men have to be kept away, day after day, from their farms, shops, and employments, for a paltry compensation to them, ruinous though it be to the parties. And why is all this? Because the same court has criminal and civil jurisdiction, and the criminal causes have the preference. I am told by a late Judge of the Marion Circuit Court (whose name will be given if necessary.) that he has known criminal cases to intervene and put over civil cases ready for trial, so as to cause costs to accumulate against parties litigant at the rate of $1,000 a day; and I have seen a letter from the Judge of the Court of Common Pleas of Tippecanoe county, showing that from such circumstances, in an appeal case from a Justice of the Peace to the Tippecanoe Circuit Court, where 17 witnesses were in attendance in the Circuit Court, and judgment given for one dollar, the costs of the case amounted to $397.24; and the Judge adds that in a precisely similar case in the Common Pleas Court, where eight witnesses were in attendance, the costs amounted to $36.80; adding nine witnesses more to make the number equal to that of the other case, would, he says, have increased the costs to $45.80. Thus making in this single case, in the matter of costs, a difference in favor of the court of Common Pleas of a little over $350.

But "D." says the multiplicity of courts always increases litigation and costs. I say they do not. Will he, or any one else, pretend that two courts, of like civil jurisdiction, equal in expense, and located at the same place, would be productive of any more litigation or costs, than one court, of the same jurisdiction, sitting as frequently and as long as both together? But if "D." is so opposed to a multiplicity of courts, he would of course go for abolishing the office of all the country Justices of the Peace, and establish one Justice's office in town to do the business. Or if it is so important to deter citizens from commencing suits, by the prospect of ruinous costs and interminable delays, and thus compelling them to "compromise" and "settle," (except the headstrong, who will fight it out in spite of delay or costs,) why, then, it would be best to abolish all courts and compel citizens to "compromise" and "settle," upon terms to be dictated by their adversaries, all wanton wrongs which have been perpetrated against them. O, yes! abolish all courts! What silly, old-fashioned men the framers of the constitution must, in "D.'s" opinion, have been, when they provided that every person—poor people included—should have redress for their wrongs, in courts of justice, without denial or delay!

But "D." thinks, if the court and bar do their duty, "the Circuit Court with two terms and the time limited for its sitting, is entirely sufficient to do the legal business of the people." Well, if the Circuit Court does not do its duty, is that not a reason why we should have another court that will? But that the time limited for the sessions of the Circuit Court is not long enough, is evident from the fact that, winter before last, when the legal business of the county was less than now, Robert B. Duncan, the intelligent county clerk, and nearly the whole bar, petitioned the Legislature to enact that the Marion Circuit Court should hold three terms a year, of four weeks each, with a proviso that, at the January term, the court might sit as much longer as the business thereof might require, And allowing for all cases which the Common Pleas Court has prevented from going to the Circuit Court for its next October term, no intelligent man believes that the circuit court, with the criminal business on hand, will be able to dispose of the cases which will be on its docket, at its next term In fact, the prospect is that it will not be able to dispose of the civil cases now ready for trial.

But "D." estimates that the Common Pleas Court will be more expensive than the Circuit Court Let us compare.

The Common Pleas Court has no associate judges. Estimating the terms at four weeks each, here is a saving, in a year, over the Circuit Court, in this item, of $288. In the Circuit Court, on account of the criminal business, the Sheriff employs six bailiffs, at $1.50 a day, for at least three weeks in a term; in the Common Pleas Court, he says he will need but one; making a difference in favor of the Common Pleas Court of $270 a year. Here is a direct saving to the county of $558 a year. And I may add that the Judge of the Court of Common Pleas of Tippecanoe county, whose uprightness and veracity could be questioned by none who know him, says, in his letter above referred to, that the expense of that court to Tippecanoe county is less than one-half of that of the Tippecanoe Circuit Court. Taking "D.'s" estimate of the expenses of suitors to be correct for the Circuit Court, it can safely be estimated that the expenses will be much reduced in the Common Pleas Court. Lawyers will charge less—say $2 less on each side of a case—because suits will be tried promptly and fees realized early—making here a saving over the Circuit Court of $80 a year. The clerk of the Common Pleas Court will get, by reducing the continuance and other entries and the number of attachments and other writs issued, on an average, $1 less in each case—making here a saving of $200; the sheriff will, from the reduction of the number of attachments to be issued, from causes before referred to, get at least $100 less: the witnesses, by the causes being generally tried on the day for which they are set, will get, at least, one fourth less, making a saving here of $250; the parties will save at least one half of the time they usually lose by attendance at the Circuit Court, thus saving to themselves, say $2.50 a case, or in all, $1,000. Thus, allowing for the Judge's compensation, there will be an actual saving to suitors in the Common Pleas Court, of over $1,500 a year; and a saving to the county, in two items, of $558 a year.

Third. Judge "D." will overrule the opinion of the Supreme Court, and decide these Common Pleas Courts to be unconstitutional. The laws creating both of those courts are public laws, and the courts are bound to take notice of them without their being pleaded, and the Supreme Court has formally entertained an appeal from the Tippecanoe Court of Common Pleas. Would the Supreme Court entertain an appeal from a court having no jurisdiction to try causes? But he says the constitution provides for circuit and inferior courts. That is not true, The constitution provides for "circuit and other inferior courts." [Art. 4, secs. 1 and 4.] Not satisfied with these objections he insists that the court is unconstitutional because the Judge is made clerk of his own court, and receives emoluments as Judge and clerk. I answer a Justice of the Peace is clerk of his own court and receives emoluments as judge and clerk. For every investigation of a criminal proceeding upon oath, he gets 50 cents; for every trial and entry of judgment he gets 25 cents; besides his fees for swearing witnesses, issuing writs, and making entries on his docket.

Fourth. But "D." last objects that while all Europe is struggling for liberty, the regularly elected representatives of the people should elect a Judge of the Common Pleas Court as they do the Judges of the Circuit Court! That is a usurpation fearful indeed! But did "D." ever read that one of the objects of the European struggle was to teach men that offices were not always to be held in the same hands; and that the people were not going further to foster an aristocracy whose offspring would scoff and mock at their children. "D." must have skipped over that melancholy page!

Ah! fellow-citizens, the excitement which has been attempted to be created against the Court of Common Pleas, has been gotten up for selfish purposes, by one whose pockets are swollen with the gains with which you have been flooding them for the last 16 years, and who now wishes to create an excitement against that court, not for your benefit, but for the purpose of riding on it again into office, and to ultimately turn into his own pockets the fees which that court has diverted. Think for yourselves; and then your interests will be subserved,