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Tta TUCY BANGS HAKES AN ELOQUENT PLEA (Continued from page nine.) back to the attorneys trace it right back to the attorneys. Why, there isn't an attorney in the state, and I am no exception, and neither is my brother, but what, if we were put upon the witness, stand, or if we were to go and talk there before you, we would probably endeavor to make you believe that when a piece of busines came to us, we simply Tusned in pell-mell to get it closed up and out of the way and there isn't an attorney in the state but what ofttimes does just the other thing. We don't rush. Why, we haven't the reputation—the attorneys haven't— .tor rushing. You know that, and they didn't get the reputation unless there was some reason for it. And the courts are the victims of the negligence of attorneys in practically every instance where there is any delay. Now, let us proceed to this next case, and that is Cartier against Bruegger. It has a familiar sound, Cartier against Bruegger. It is another case that was tried by Governor Burke. It is another case that was delayed. And we have Joe Youngblood and George Gilmore, and, finally, John Bruegger, to explain the delays. And it was told to you on cross-examination of these witnesses, who have testified that one reason for the delay was because the title that John Bruegger had from the railroad company was so tied up that the person to whom he was endeavoring to sell this piece of property in Williston refused to take the deed, and this case was held awaiting the securing by John Brueg ger from the railroad company of a title that would be good. You remember that. And then John Bruegger was brought down here, I suppose for the purpose of showing you gentlemen that that was a mistake, and he came heife with his deeds. They are in the records, and I suppose you will look them over. I haven't the deeds here now, but you remember what it was. His first dwed ttoat be had from the railroad company, and the one that he had at the time he was attempt ing to sell this land to Cartier, had a reservation in it which gave the Great Northern Railroad Company the right to go over that land at any time and at any place. A man who bought a lot there, took it sub ject to the right of the railroad company to put their track, main track, switches—anything connected with the operation of their trains —over any part of that land at any time they saw fit. And so the case was delayed, awaiting the securing of a better deed by Bruegger from the railroad company, and he comes in here with a deed dated in June, 1901, if I remember correctly, in June, 1901, from the railroad company to him, and they present that deed as a reason why this case should not have been delayed as it was. But on looking at that deed, what do we discover? We discover that it was not put of record until August, 1903 until August, 1903, and why? Why was it not put on record before August, 1903? Didn't Mr. Bruegger tell us? Didn't Mr. Bruegger tell us? He got it in June, 1901. He was waiting, he said, until he could get counsel from his attorney, John Burke, and as soon as he got it, he put that deed on record, and it took him from June, 1901, until August, 1903, to get Burke to tell him to put the deed on record and then they charge tha* to John Cowan. John Cowan is answerable for the fact that John Bruegger couldn't get a communication irom his counsel, John Burke, from June, 1901, until August, 1903! What more does he tell us about that? He says: "I have a faint recol lection that there was some question about the right of way submitted to Cowan some time after the trial by Burke, and then ht advisee having the deed recorded, which was in August, 1903." Now, gentlemen, just take the ordluury court procedure, take the ordinary affairs of life, ause court procedure doesn't differ very much from them, and when you start a delay, when you start dilatory tactics, when you begin de laying to do this thing and that thing, and the other thing that ought to be done, you know there is no end to the delays, and the case of Car tier v. Bruegger was delayed, not by the judge, but was delayed—first, because Bruegger did not have a sufficient title to the land second, ac cording to the record here, because Bruegger couldn't get advice from his counsel, John Burke, for more than two years and it was delayed, third, I don't know why but I say to you that when you find that these delays came about by reason of Bruegger's failure of title by reason of Burke's neglect to give advice it is fair to presume that these same men who had caused all that delay were as much responsible for any further delays as was Judge Cowan even more so. You have had presented to you in this case a decision of the supreme court of North Dakota, in which Judge Carmody said something about section 7039. It has nothing to do with the case that I can see. He didn't decide that Cowan had delayed he didn't know, any more than you know and I know, where the papers were, but when papers can lie in Burke, Mid daugh & Cuthberfs office, as the papers in the case of Oxendahl v. Hales did where papers can be lost and only found when the search is made after the death of an attorney, as was the case in the case of Cartier v. Bruegger—copies, they said—when these things can happen, doesn't it bring home to you that the attorneys are the men who are ofttimes to blame that the attorneys are the men who are neglectful of these cases that the attorneys are the men who lose the files? Did any of you ever lose any files? Did any attorney who is a member of this court ever lose any of his papers? If not, you are an exception to the rule. Why, you can lose them in your own office, unless you have a system where you have a big box and throw everything into the box and then when you want something, dig through until you find it. And yet they say that they want you to impeach Judge Cowan they want you to impeach Judge Cowan because these papers were lost. The case of Kilgore v. Smith, No. 14, is one that I believe stands unexplained except by the testimony of Mr. Middaugh. It was some case that come up from Benson county, on appeal from justice court. Middaugh was a little bit dazed when he came to testify in regard to that case. He only had some recollection, some faint recollection, that there was some question of law on appeal from justice court. Mr. Thomas was an attorney in that case, and he, I believe, has left the state, so that w* have no way of finding out from him just what the facts were, so that we can offer no particular explanation, except that it is one of those things that sometime* slips out of your mind. There is nothing in Mr. Middaugh's testimony to show that he ever intimated to Judge Cowan that he wanted a decision or objected to delay, and you know there are causes that have been explained before you In the course of this trial, where parties have abandoned the case and didn't know anything more about it, and this was evidently a little case from justice court, and probably one of those of so little moment, and so little im portance, that the attorneys, the parties and all interested simply dropped the matter, and that was the end of it until it comes up here, a specter before Judge Cowan, and used by the prosecution in an effort to have you vote that he is unfit to longer occupy the position of judge of the Second Judicial district, because of those delays. And in this connection 1 want to say just a word with respect to that. You will remember that when we were about to begin the taking of testimony in this case, the presiding officer made a statement to you as to what the law was with regard to impeachment that the ques tion finally to be decided by this court was this question: Is this man shown to be an unfit man to longer hold the position of judge of the Second Judicial district? In the course of the arguments that we have had during this trial, that principle has been enunciated and re-enunciated time and time again by Mr. Bangs of counsel for the prosecution. It has been conceded by us that the law of impeachment is that the Senate sitting as a High Court of Impeachment must determine, not was one case delayed over sixty or ninety days not were two cases delayed more than sixty or ninety days but have facts been found, shown in this investigation, in this trial, that convinces you that John F. Cowan is not a At man, by reason of his acts, to longer occupy the position of judge of the Second Judicial district? Now, in determining that question, in going through these delayed cases, in going through the other matters of evidence that have been pre sented to you, keep that in mind and when we finally come to the close of this case, keep this in mind when you are about to vote the clerk of this court will say, Mr. Senator, we are about to vote upon specification one of charge one. What say you, guilty or not guilty? And remember it is Immaterial as to whether you are voting upon that specification or any a re a an B1SMAHCK DAILY TRIBUNE other specification. When you vote, your vote is not cast to determine whether or not the particular facts alleged in that specification is true, but your vote is cast to say whether that fact and the other facts makes this man unfit to longer hold the office of judge of the Second judicial district. For instance, when you come to the case of Kilgore vs. Smith. It will be the 14th specification of charge six, and the clerk has said,, Mr. Senator, you are about to vote upon the 14th specification of charge six, and the testimony shows that that case was tried in 1906, and no de cision has been rendered. And there stands before this court the fact that there is a case delayed beyond the time the statute says a case should be decided, yes, delayed even beyond a reasonable time, but you are vot ing to say if that has been proven that is not the purpose nor the purport of your vote. Your vote is guilty or not guilty of the offenses which jus tify you in saying that John F. Cowan is no longer fit to sit upon the district bench of the Second judicial district, and that must always be present in your mind at every time you cast your vote and upon every specification, that it is not the fact of that specification alone, but what has been shown as to John F. Cowan's fitness. In going over these facts I would ask you also to retain that matter in your mind. Now, let us pass on to some more of these delayed cases. I know they become tiresome, a little bit monotonous, but I do not know of any better time to be monotonous than in the forenoon. The next case is that of Powell against Norton. Powell against Norton, now in that case we have Middaugh, Traynor and McClory, and also the secretary of state. Mid daugh tells you that no findings or briefs were ever prepared by him and that the case never has been decided so far as he knows, but he doesn't know whether a transcript has been secured or not. Traynor's testimony, I believe, is just about the same as Middaugh's, only he spoke to the judge some time in 1905'and presented to him findings that Paddy Norton had sent him. Now, McClory was a witness In that case, and he has given you his version of the case. He says after the case was tried it was to be briefed and argued. That the agreement was it was to be briefed and argued later that it was not briefed by either side and that they did not ask for a decision, and that the court intimated that if any one was entitled to relief it was Largent, the Intervenor, but Largent went away, he didn't come back to pay McClory for the work he had done thus far, and McClory practically dropped the matter. You will remember what that case was you will remember in recalling the testimony that Lar gent owed the International Harvester Co., Mr. Norton was agent for the International Harvester Co., Largent owned a piece of land on which there was a small mortgage, he agreed to sell it to the International Harvester company for a small sum, I think $50.00 or $75.00, and a release of his indebtedness to the'International Harvester company. Mr. Norton went out to Largent's place and secured a deed to himself, secured a deed to himself and transferred the title to that property to his sister. Powell had negotiated with the International Harvester company to buy the pro perty from them when they got it, and he commenced this action against the International Harvester company and against Norton to compel Nor ton to transfer the land back through the International Harvester corn pay to him. or directly to him. and the International Harvester company to compel the transfer. Largent intervened, claiming he never had receiv ed the consideration that was to be paid him, that the deed had been ob tained from him by misrepresentation on the part of Norton, and that case was tried, and according to McClory. Judge Cowan intimated at the close of the trial if anyone was entitled to relief it was Largent, and Judge Cowan may have made some ruling there, and he has made some rulings I have seriously differed with him in regard to in times gone by, but I submit to you his intimation at the time of that trial showed his keep, sense of right and equity, if nothing else. Now, Mr. Norton comes on the stand and he attempts to interject into this case something on which they can hang their hat and claim Cowan was acting in fraud of some one's rights, and Norton says I went to see Cowan, and said to him, you are giving me a dirty deal in this case, and Cowan says, tush, tush, don't talk about that. Well, now, gentlemen, you have seen Judge Cowan for thirty days, I think, here, and you have heard him talk you have seen him in the lobby and you have seen him in the hotel you know him and you know what has been said about him. There isn't any man in this room who would for a minute believe Paddy Norton or anybody else when they said Judge Cowan said tush, tush. Why, it is the most absurd rot I ever heard a grown man get off. And then, Mr. Sinkler said in his addless: "Did you see the look of hatred that passed over Judge Cowan's face when Paddy Norton was testifying?" Was that what Sinkler saw? Was that what Sinkler saw? Sinkler sat over on that side of the room, and Paddy Norton sat in the witness box between him and Cowan, and the revengeful look of hate that flashed from Paddy Norton was so deep, and dark, and hateful that Sinkler couldn't look through it as far as Cowan sat. You will remember what he said when demand was made of Cowan for the papers and Cowan said he' didn't have them, and Norton turned to him and said, "Do you mean to say I didn't give you the find ings of fact," and Judge Cowan said, "Yes, sir." Mr. 'Norton said, "You then he mumbled something under his breath. Did you see his lips move? Did any of you understand what he said when he sat there on the witness «tand and under his breath mumbled names, obscene, vile, low, to Judge Cowan, that I say to you he hasn't the manhood to tell, even think, in Cowan's presence, If he were out of this court. Taking advantage, taking advantage of Cowan's position here on trial before this Senate, he sits there and mumbles those words that he knows would call forth, that which he so richly deserves if he ever said them in Cowan's presence. And then they talk about hate on the part of Cowan about seeing hatred flash from Cowan's eyes. If there was any flash from Cow an's eyes it was simply the sparkle of anticipation when the gentleman might possibly say the same thing again. Dirty deal. Look back over the evidence in this case Largent's land is gone his indebtedness to the In ternational Harvester company still in existence, still hanging over his head. A paltry $20.00 or possibly $50.00, I have forgotten which, they had paid him, and the title to uls land floating down through the Norton family. Where is the dirty deal? I ask you senators to look back over the evidence with respect to that case. I ask you senators to look at these men who testified In that case. I ask you sentors to compare the statement, the words of Judge Cowan and the words of P. D. Norton, and then say to me in whose eyes was the flash of hatred? Upon whose part was the damnable dirty deal? Don't you know? Don't you know? The most ordinary sense of justice and right points with unerring finger to the dirty deal, and It is not anywhere In the vicinity of John Cowan, either. And then after all that, after getting the land, he comes here and mumbles these obscene names at Cowan, taking advantage of his position here before you where he can't respond. And that is what the prosecu tion claims to be evidence from which this court should impeach. Who? The man who didn't dare tell us what was in his banks at Hettinger. The man who didn't dare answer to whether he was complying with the laws of this state in conducting his business as secretary of state, is not he the man who should be impeached, rather than Judge Cowan? Look over the evidence! Read that part of this testimony once again, and then say to me if you are seeking out here men who are unfit to hold public office if you are seeking out men who are unfit to hold public trust, who will you select, the man who sat at the table here on trial before you, or the man with the gleaming hate shooting from his eyes who sat in tl\e witness box daring to mumble imprecations under his breath, but fearful to answer straight Questions as to his own honesty. Do you find anything in that case to Impeach Judge Cowan for? I venture not. But let us take the next, that Is Dewar vs. the Bartlett School Dis trict, specification 17. As I understand It, specification 16, no evidence was introduced with respect to. And here again we come to this at torney who is so prompt in all his business affairs, but who seems to be the one man who has been burdened with these delayed cases—Henry C. Middaugh. We flrld that this was an action with respect to the building of a school house down in Bartlett district, and a temporary restraining order was on for hearing. That came before the court sometime in 1*06 and was another one of these cases that Mr. John Burke bad in charge. Now, there is one peculiarity about these delayed eases, that so many of them hark back to the time when Governor Burke was trying cases for the firm and the reason for It Is, I have already mentioned It, but I will explain it again. When he was elected governor he left the duties of the office and came down here to Bismarck to discharge the duties of the office of governor, and then these cases had to be taken np by some other member of the firm, and as I said before it is a most difficult thing for an attorney who has not had charge of a case to take it up at some stage of the proceeding, and more especially after it has been presented, after it has been tried. I don't want you to think I am charging these to Governor Burke, except he allowed himseif to be elected governor and left bis law.business up there. But {he cauae for delay is that the other members of the firm, taking up old business, were naturally neglectful of it and let it drag. This case was decided, however, in 1907, and remained in force about a year. Mr. Middaugh says that it might have been heard on oral testimony, and he doesn't just exactly know what was done with it, and I do not believe anyone else took any notice of it. There is no evidence in thl3 case that anyone ever said a word about it, and no objection was ever made, and it is another case that comes under the Indiana rule that-unobjected to delays are presumed to be legal. Then, there is the case of J. I. Case Threshing Machine company VB. Marr, which was a motion for a new trial, and the statement of the case was settled in September, 1906. Mr. George A. Bangs: It was settled May 1st, and argued May 7th. Mr. Tracy R. Bangs: Oh, yes, and argued again in September. That is the time I had in mind, and I naturally took the last one. This case was a motion for a new trial, now let me see li I can remember this cor rectly. There was a stay of proceedings for sixty days and then along towards the latter part of the 60 days, there was another stay of 50 days granted, dating from the expiration of the 60 day stay, making a stay of 110 days of all proceedings in that case, that would bring the matter up until the latter part of 1906. Now, from that time on there was no reason why this matter should not have been brought on, if the counsel wanted to bring it up. There was no reason why they shouldn't have gone up to the judge's chambers at any time' and had that matter submit ted and gotten a decision. It is another one of those cases that harks back to the carelessness of counsel, after they had'gotten a statement of the case settled, in not urging it on for hearing. Mr. George A. Bangs: Does this come within the Indiana rule, or is this an exception? Mr. Tracy R. Bangs: No, I think it comes with the rule. Mr. Mid daugh explains he thinks the briefs were submitted in 1906, but he would n't be sure about that because he had no record to show it, except he knew the work of a certain stenographer, and she left his office in the fall of 1907, so that he was positive the briefs were submitted before that fall, but he says he doesn't know from any personal knowledge whether they were presented, that is the briefs, or not. Mr. Traynor says they argued it for the second time in September, 1906, and that is a., we have. Neither of these gentlemen have testified as to any particular request or as to any objection ever made because of the delay, and there was no order staying of execution after the 110 days had expired, so that there was no reason why the party holding the judgment in that shouldn't have proceeded with his execution, which would have hurriedly brought the matter to a head. The fact that the judgment creditors did not have execution issued and- proceed to collect on the execution is almost proof positive that he was neglectful and his attorney was neglectful in not attending to his side of that case, because I submit to any of you gentlemen who are attorneys that after you have obtained a judgment for your client and the other party has moved for a new trial, and there is no stay of execution, that it would be a matter of neglect on your part not to proceed to the collection of your judgment, if pos sible, at least to proceed towards some effort towards collecting it. So it seems to me the evidence shows there must be neglect on the part of the attorney. Senator Simpson: Isn't that the case where Mr. Middaugh says he doesn't know whether briefs were submitted or not? Mr. Tracy R. Bangs: He says he thinks briefs were submitted in May, 1906. He don't know from any personal knowledge whether they were presented or not, but he says the briefs were prepared, he knows, prior to August, 1907, because of the work of one certain stenographer. The stenographer came in August, 1906, and left in August, 1907, and the briefs couldn't have been submitted in May, 1906. I had forgotten that part of the testimony. The next case is that of Burlan vs. Scharf, and that was stricken out, and specification 20, is the Devils Lake Brick com pany against the Farmers' association of some kind, which was tried in August, 1906, and decided in June, 1907. Really the time there is so short I am not going to take the time of this Senate in arguing anything about it. McCarthy vs. Shea, there seems to be no testimony with re spect to it. Then we come to Brown vs. Gilmore, which was tried ifi March, 1906, and there appears to be no decision. Mr. Middaugh in his testimony stated that he knew of no reason for the delay. He knew of no reason for the delay which, of course, precluded any idea of any bad reason. If he knows of no reason at all he couldn't possibly know a bad one and it comes as a case that has nothing in it to show that any wil ful act on the part of Judge Cowan is responsible for not reciting it. Now, let us see there is something more in this case, I believe. In the spring of 1908, In the spring of 1908, Mr. Middaugh got a transcript of the evidence in this case, and for what purpose. You remember, Mr. Mid daugh's testimony. He says this case was tried In 1906, that he doesn't know of any reason for the delay and yet be tells you in the spring of 1908 he got a transcript for the purpose of drawing findings of fact and conclusions of law. So that up to that time he hadn't taken any step toward drawing findings of fact and conclusions of law. And he says after he got this transcript Cowan would occasionally come in to/ the office and he and Cowan would go over the transcript together, talk it over, discuss the case, discuss it from the transcript and from the facts and circumstances as they recollected them at the time of the trial and you all know how those things turn out, they would discuss the matter a while and the judge would leave and no final action was taken until when? Until December, 1910, until December, 1910, is the testimony of Middaugh. Mr. George A. Bangs: That was corrected to September 28. Judge Cowan took the transcript away at that time and I will call your atten tion to it now, there ought to be a statement made now. I should have made it before. The record shows that it was December 28th, that Is a clerical error, and it should be September 28, 1910. Mr Tracy R. Bangs: The papers in the case and the papers in the case of Oksendahl against Hales, were turned over to Judge Cowan at the same time, September 8,1910. Now, he says we read the transcript and talked about the sufficiency of the tender and 1* got the transcript not only to make the findings of fact, but also for Cowan to use and so it went on from time to time, and no action -was taken. You have the papers and when the judge comes in you say, here Judge, what do you think about this case, and you, sit down and talk it over and you don't come to any final conclusion and the judge goes out and because the Judge didn't say, Henry, we have talked this thing over enough now, I am going to decide the case. Thoreson was a witness in this case and he testified to that talk with Judge Cowan in March, 1909, or June, at that term of court, or in January, 1910, that Cowan said that the other side wanted to put in something more and he made no objection to that So that those are the only true witnesses who testified in this case they are Middaugh and Thoreson, who testified, the understanding from Cowan was that the other side wanted to put in some more testimony, and Middaugh says he got the transcript and that brings the ease up to September It, HID. If you take these facts altogether and look them over, really, doesn't it show that if ever submitted it wasn't submitted until September is, 1910. September 28/ 1910, is the first time that the case was actually put up to the judge for a decision. Mr. Tracy R. Bangs: In going through these delayed cases this morning I overlooked one matter in regard to specification 20 of charge 6, the Devils Lake Pressed Brick and Stone Company against the Farmers' Mill and Elevator Association. This case was submitted, ac cording to testimony, in August, 1906, and decided in June, 1907. I had overlooked for the time being the testimony of Mr. McClory, in which he says that after the case was tried time was asked for by both parties for briefing and statement of facts. These were never submitted by (Continued on Page Eleven.) Wednesday, May 3,1011. MASONIC. BISMARCK LODGE, No. 5, A. P. & A. M. Meets first and third Mon days in each month at Masonic hall. A. P. Lenhart, W. J. Graham, secretary. TANCRED COMMANDRY NO. 1. Burt Finney, E. G. W. Wolbert, Re corder regular meeting first and third Thursday of each month. O. E. S. BISMARCK CHAPTER, No. 11, meets first and third Fridays in each month at Masonic hall. Mrs. Grace French, W. M. 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