History of San Diego, 1542-1908

PART SIX: CHAPTER 3: Records of the Bench and Bar

Probably the average citizen of San Diego, if asked to name the father of the San Diego bar, would at once think of Judge Oliver S. Witherby; and certainly, although we are not sure he was the very first American attorney to settle here, and although he did not prac­tice long, yet by reason of his character and the many years during which he stood as a connecting link between the old and the new, he deserves to be so considered. Throughout the 50’s, and even earlier, there were a number of business men and others admitted to practice whose attainments were slight. But Witherby was a real law­yer and a man of solid attainments. He spent nearly forty-seven years of his life in San Diego, and his election to repre­sent the county in the first legislature, in 1850, as well as his appointment and service as the first judge of the first judicial district, shows the estimation in which he was held as a lawyer and a man.

In 1850 there were three practicing attorneys in San Diego; James W. Robinson, Thomas W. Sutherland, and William C. Ferrell. These men have all been mentioned in this history, and brief biographical sketches of them given. It would be difficult, if not impossible, to determine which was the earliest settler of the three. Robinson was the most substantial citizen and the best equipped lawyer, owing to his long experience, learning, and personal character. Ferrell was also an able man, and in the eight or nine years of his residence practiced quite actively; but he was somewhat eccentric and scarcely adapted to cut a large figure. He was the first district attorney of the first judi­cial district, in 1850-52. Sutherland was actively engaged in public affairs in the early 50’s. He served as alcalde under the Mexican laws and as city attorney and district attorney under the American civil administration. As city attorney he prepared San Diego’s first ordinances, in 1850-51, and rendered other services. In December, 1850, Ira W. Bird was appointed and acted for a time as county attorney, but there is nothing to show that he ever engaged in the practice of law.

In this year, also, John B. Magruder’s name appears as an attorney. This, of course, was Colonel J. Bankhead Magruder, who was at the time in command of the army post at San Diego.

Coming down a few years, we find the names of Lewis A. Franklin and J. R. Gitchell as attorneys; Franklin practiced very little, but Gitchell was the first attorney for the old San Diego & Gila Railroad, and drew its charter. He was also district attorney, a somewhat prominent resident, and regarded as an able man. D. B. Kurtz read law under Gitchell and in April, 1856, he and E. W. Morse and D. B. Hoffman were admitted to the bar, but none of the three ever engaged extensively in prac­tice. Squire Ensworth, on the other hand, pursued the profes­sion and gave it his exclusive attention. He was a self-made lawyer and was admitted about the same time as Mr. Morse.

At the time that Horton’s Addition began to forge to the front, the prominent attorneys at Old Town were Benjamin Hayes, Wm. Jeff Gatewood, and W. T. McNealy.

Judge Hayes was a resident of Los Angeles when elected dis­trict judge, in 1859, and served until 1864. In 1869 he removed to Old Town and engaged in the practice of law. He was state senator in 1866-67. He died in Los Angeles, August 4, 1877. Judge Hayes was the leading lawyer of San Diego in all mat­ters pertaining to land titles, and a cyclopedia of information on Spanish land grants. He was the attorney for the plaintiffs in the suit for the partition of the Middletown Addition. In the course of his practice he accumulated a large number of documents relating to land titles and early history, which he turned over to H. H. Bancroft.

Gatewood came in October, 1868, to establish the Union. In the following May he sold his half interest in the paper to Charles P. Taggart, and the paper was soon after removed to New San Diego, while Gatewood remained at Old Town and engaged in the active practice of law.

Colonel Gatewood was a native of Kentucky, a man of fine personal presence and great native talents. He served in the Mexican War and after that settled in Calaveras County, Cali­fornia, where he published the San Andreas Register and took a hand in politics. In the course of the vicissitudes of the latter occupation, in 1858, he fought a duel with Dr. P. Goodwin and killed him — a somewhat celebrated affair. After retiring from the Union Gatewood quickly built up a good practice. Besides having nearly all the criminal practice, he was usually employed on one side of most of the important civil cases. He was an excellent trial lawyer, ready and resourceful, and especially suc­cessful in his advocacy of causes before a jury.

After the county offices were removed to New San Diego, he took up his residence there and lived for several years in the house still standing at the southwest corner of Union and D Streets. In July, 1872, he founded the Daily World. One of his most important cases was that of the People vs. Gregory, accused of murder, wherein he succeeded in securing an acquit­tal against great odds. He was also interested in the suit of Pico vs. Forster, involving the ownership of the Santa Marga­rita rancho, but in that case his clients lost. In the Hinton will case he represented the executors, and in the contest over the removal of the county seat was attorney for the people of Old Town. In 1873 he was a prominent candidate for the Demo­cratic nomination for district judge, but was defeated by W. T. McNealy. He died on board the schooner Rosita, in San Diego Bay, March 27, 1888.

W. T. McNealy practiced law in San Diego longer ago than any other man now living here. He is a native of Georgia, but his father removed to Florida and he spent his youth there. He came to California in 1849 and arrived in San Diego on the 31st of March in that year. He relates that his first employment after his arrival was given him by Cullen A. Johnson and con­sisted of making an abstract of the title to the Middletown Addition; the second was copying some records for Judge Hayes, in the matter of the estate of some minors. The following fall he received the Democratic nomination for district attorney and was elected, and two years later was re-elected for another term. The record which he made in the vigorous and successful pros­ecution of a number of criminals popularly supposed to be im­mune on account of their “pull,” as well as his stubborn fight and final victory in the collection of the disputed tax levy for refunding the county debt, with practically all the property owners of the city and county arrayed against him, convinced the people that he was their friend and led to his nomination and election to the office of judge of the eighteenth district court, defeating Judge Rolfe, in 1873, for a term of six years. In 1879, the old district court having been abolished and the new supe­rior court created, he was chosen to fill that office and served until October, 1886, when ill health caused his retirement. After this he was engaged for a time in practice, but since 1888 has retired.

Cullen A. Johnson was district attorney in 1868-69. He came here in ill health, and died April 16, 1873, of consumption.

Daniel Cleveland is the oldest attorney, still engaged in prac­tice and living here, who came direct to New San Diego. He is a native of Poughkeepsie, New York, the son of an eminent law­yer, and descended from Revolutionary stock. He came to San Diego in May, 1869, and practiced law in partnership with his brother, Wm. H. Cleveland. The latter, a very able lawyer, died in New Hampshire in 1873. Mr. Cleveland has been an active participant in all the city’s important steps of progress. He was attorney for the Texas & Pacific Railway five or six years, until it transferred its franchise to the Southern Pacific, and was attorney for the Bank of San Diego during its exist­ence. He is a large property owner and a public-spirited citizen. In the practice of law, his course has always been digni­fied and his attainments and talents command respect. His connection with the Protestant Episcopal Church has been described. He was one of the founders of the San Diego Soci­ety of Natural History, its president for a time, and always an active member and contributor.

In a growing community like New San Diego, there are always a few men who, by reason of their qualifications and force of character early take and easily maintain the lead in their pro­fessions. To attempt to select these men would ordinarily be a difficult and invidious task, but in the case of the early days of New San Diego, it is made easy by the agreement of those who knew them. The two most prominent and successful attor­neys of early days in New San Diego, who came direct, were Major Levi Chase and Wallace Leach.

Major Chase was a native of Maine, and a veteran of the Civil War. He came to San Diego in 1868 and almost at once gained a prominent position at the bar. One of his most important lit­igations was for settling the title and boundaries of the El Cajon rancho, and afterward for its partition among the successful contestants. This work was very profitable, but, as several peo­ple were dispossessed, considerable feeling was aroused. He was also interested in litigation over Warner’s ranch. He formed a partnership with Wallace Leach about 1873, which continued twelve or thirteen years. He took part in most of the important civil litigation of his day, but did not engage in crim­inal practice. He retired about 1895, and died May 31, 1906. He was regarded as a reliable lawyer and good counselor.

Robert Wallace Leach was a native of Illinois, and a grad­uate of Harvard Law College. He came to San Diego in June, 1873, and soon after entered into a partnership with Major Chase. His specialty was criminal law and jury trials. He was brilliant, resourceful, and highly successful. His first lau­rels were won in defending Collector W. J. McCormick, who was accused of robbing himself, as related in the account of gov­ernmental activities. About 1885, he formed a partnership with Judge Parker, which continued until Leach’s death. He died May 13, 1888.

Charles P. Taggart also belongs to this period. He was the attorney for a number of corporations, such as the Pacific Mail and the Pacific Coast Steamship Companies, for Capron’s stage line, for the Texas & Pacific Railroad, and finally city attorney. While city attorney, the trustees entered into a contract with him and General Volney E. Howard, of Los Angeles, by which they were to receive a large share of the tide lands in payment for their services in defending the city’s claim to title in the litigation then pending. Much bitterness was aroused and, besides making many enemies, Taggart and Howard got no pay, as it was finally held that the city had no title.

Taggart’s specialty was criminal practice. One of his most important cases was the defense in the case of State vs. Burleigh, accused of murder. The evidence against Burleigh, although circumstantial, was strong, and public sentiment was against his client. He succeeded in securing a ver­dict of acquittal, and subsequent developments established to the satisfaction of many that Burleigh was really innocent. There is a tradition that when the jury first went out they stood 11 to 1, the 1 being Joshua Sloane, and that he talked over the other 11. Mr. Taggart can scarcely be called a successful law­yer. He dissipated his energies upon a number of activities. As related, he purchased Colonel Gatewood’s interest in the Union in 1869, and was its editor and manager for a few months. He was also agent for the Pacific Mail Steamship Company. He died October 13, 1875; his monument bears the inscription “A friend to free schools.”

The judiciary of San Diego has, as a rule, reflected the high character of the bar. Of the district judges, only the first (Witherby) and the last (McNealy) were residents of San Diego, while the others were from other sections of the district. The first county judge and ex-officio presiding judge of the court of sessions, was John Hays. After him were Cave J. Couts, D. B. Kurtz, W. H. Noyes, Julio Osuña, Thomas H. Bush, and Moses A. Luce, who served until the office was abolished. Brief biographies of nearly all these judges have been given.

The first superior judge was W. T. McNealy. Upon his retire­ment, October 1, 1886, John D. Works was appointed his successor and was chosen at the next general election to fill the unexpired term. He served about a year, then resigned, and was succeeded by Edwin Parker.

Judge Works is a native of Indiana. He came to San Diego in 1883, after having served in the Civil War and in the Indiana legislature and written a text book on practice and pleading. He was soon after chosen city attorney. After retiring from the bench, he formed a partnership with Olin Wellborn and John R. Jones. He afterward removed to Los Angeles, where he is now successfully engaged in the practice of his profession. He has served a term as judge of the supreme court of Califor­nia, and stands high as a citizen and a lawyer.

Judge Parker completed the unexpired part of the term of Judge Works, and was regarded as an able jurist. He had been under-sheriff in 1873-74 and studied law and engaged in practice upon retiring from that position. He is spoken of as a man whose naturally fine powers were somewhat handicapped by his diffidence.

The year 1888 was the one at which the grand contest occurred between the “Gallaghers” and the regular Republican organiza­tion. The superior judge chosen at that election, John R. Ait­ken, was supported by the former organization. He was a young lawyer recently from San Francisco, who served one term. He returned to San Francisco and is now a practicing attorney there.

By February, 1889, the business of the superior court had increased so much that it was necessary to provide more judges. The legislature accordingly created two more departments and authorized the governor to fill them. Those appointed were George Puterbaugh and W. L. Pierce. In the fall of 1890 these two were elected for a term of six years, and the third judge chosen was E. S. Torrance.

Judge Puterbaugh made a good record. He is still engaged in the practice of his profession in San Diego, and enjoys the confidence and respect of the community.

Judge Torrance has been upon the bench continuously for sixteen years and has two years yet to serve, but recently announced his intention of resigning. He is regarded as a very able jurist. Judge Pierce served out his term, but failed of a renomination. He was shot and dangerously wounded by W. S. Clendennin, who had been a party to a suit in his court and against whom he had ruled. Judge Pierce afterward left San Diego and went to San Francisco.

When the time came for the general election in the fall of 1896, the business of the court had decreased and one of the departments was discontinued. The two judges elected were E. S. Torrance and John W. Hughes. Judge Hughes died in office, and George Fuller was appointed to serve until the next election in the fall of 1900. At that election, Norman H. Conk­lin was chosen to fill the unexpired term, and he was re-elected in 1902. The two judges at this time are, therefore, Torrance and Conklin, and their successors are to be elected in 1908.

Judge Conklin is a native of Pennsylvania, and came to San Diego in 1874. He was associated with the late J. M. Julian in the publication of the World, and in 1877 was elected dis­trict attorney and served two years.

There have been a number of attorneys in San Diego, now deceased or removed elsewhere, of whom mention should be made.

Thomas P. Slade came to San Diego very early. He was a fine old gentleman who spent his last days at Julian. Lewis Branson had some of the most important land cases at New San Diego. He had been a judge in Wisconsin. He left before the boom and went to Washington Territory. S. S. Sanborn was another early arrival at Horton’s Addition, and became associated with Charles A. Wetmore. He died here several years ago. Tyson & Swift were the attorneys for the land jumpers at Horton’s Addition. They both went away early. G. A. Jones was from Texas, a fact which he took pains to place upon his sign. He was attorney for the ousted supervisors at the time of the trouble over the removal of the county seat, and won his case upon appeal. He was at one time in partnership with Chalmers Scott. He died in San Diego six or seven years ago. John R. Jones came from Tennessee and practiced a few years in partnership with Olin Wellborn. N. H. Dodson was from Sacramento. He lived on a ranch at Poway a few years, then returned to Sacramento. William H. Cleveland was an able and successful lawyer at Old Town, and the owner of Cleve­land’s Addition. A. C. Baker arrived about 1873, remained only a short time, then went to Los Angeles and later to Ari­zona, where he became chief justice of the territory in 1893. F. L. Aude came from San Francisco, practiced a short time, and then returned. William E. Darby was a resident of Old Town. He was elected district attorney, but died before enter­ing upon the duties of the office. Wellington Stewart first prac­ticed at National City and was attorney for Kimball Brothers. Later he was associated with D. C. Reed. He left San Diego in the 80’s.

William J. Hunsaker grew up in San Diego and received his education in its public schools. He studied law in the office of Chase & Leach and practiced for a time in partnership with Judge Conklin. Later he was associated with E. W. Britt, with whom he is now practicing at Los Angeles. This firm stands very high at the California bar, and both are remembered kindly and regarded with pride by their former associates.

James S. Callen came to San Diego in boom days and was a noted criminal attorney for several years.

Of the remaining attorneys still in practice in San Diego, one of the oldest is Elijah W. Hendrick. Judge Hendrick served one term in the state legislature, in 1881, was district attorney in 1885-86, and also served as city attorney. He was one of the founders of the free public library, and has always been an act­ive and public-spirited citizen. Moses A. Luce arrived in May, 1873. He has been associated with Judge Torrance and J. Wade McDonald, and is at present the senior partner of the firm of Luce, Sloane & Luce. His public services include a term as county judge, an active and effective part in bringing the Santa Fe Railway, etc.

S.S. Knoles is United States commissioner; H. W. Talcott, commissioner of the superior court; and J. Z. Tucker, United States referee in bankruptcy.

The San Diego Bar Association was formed April 22, 1899. The present officers are: Theron L. Lewis, president; Frederick W. Stearns, vice-president; Charles C. Haines, secretary; and J. Z. Tucker, treasurer. The membership is about sixty.

There are several other individuals and firms whose standing entitles them to fuller notice, and of whom the city is justly proud. All that can be done here, however, is to present a list of the practicing attorneys of San Diego at this time:

Anderson, Monroe B.
Arden, Henry
Bancroft, Griffing
Boone, Linden L.
Bowman, A. B.
Capps, Eugene E.
Carter, Cassius
Cleveland, Daniel
Collier, Smith & Holcomb (David C. Collier, Sam Ferry Smith, Will H. Holcomb)
Comly, Harry R.
Crane, H. S.
Dadmun & Belieu (Lewis E. Dadmun, Wm. T. Belieu)
Daney & Lewis (Eugene Daney, Theron L. Lewis)
Doolittle, Herbert E.
Ecker, William H. C.
Guy, Wilfred R.
Haines & Haines (Alfred Haines, Charles C. Haines)
Hendrick, Elijah W.
Hitchcock, George N.
Humphrey, William
Jordan, Adison D.
Kew, Michael
Kirby, Lewis R.
Knoles, Samuel S.
Lamadrid, Tomas
Luce, Sloane & Luce (Moses A. Luce, William A. Sloane, Edgar A. Luce)
McDonald, J. Wade
McKee, Clarke W.
Mannix, John B.
Mills & Hizar (Henry E. Mills, J. Clyde Hizar)
Mossholder, William J.
Mouser, A. C.

O’Farrell, Fred
Palmer, Henry H.
Peterson, Edward W.
Pirkey, Oval
Puterbaugh & Puterbaugh (George Puterbaugh, Johnson W. Puterbaugh)
Riall, ErnestTaylor, Blaine
Thorpe, Milton R.
Torrance, E. Swift
Tucker, Jack Z.
Utley & Manning (Harry S. Utley, John F. Manning)
Wadham, James E.
Walker, Clarke A.
Ward, Martin L.
Whitehead, Fred G.

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HISTORY OF SAN DIEGO

Main Page
Author’s Foreword
Introduction: The Historical Pre-Eminence of San Diego

PART ONE:   Period of Discovery and Mission Rule

1. The Spanish Explorers
2. Beginning of the Mission Epoch
3. The Taming of the Indian
4. The Day of Mission Greatness
5. The End of Franciscan Rule
   Priests of San Diego Mission

PART TWO:   When Old Town Was San Diego

1. Life on Presidio Hill Under the Spanish Flag
   List of Spanish and Mexican commandants
2. Beginnings of Agriculture and Commerce
   List of Ranchos in San Diego County
3. Political Life in Mexican Days
4. Early Homes, Visitors and Families
5. Pleasant Memories of Social Life
6. Prominent Spanish Families
7. The Indians’ Relations With the Settlers
   List of Mission Indian Lands
8. San Diego in the Mexican War
9. Public Affairs After the War
10. Accounts of Early Visitors and Settlers
11. Annals of the Close of Old San Diego
12. American Families of the Early Time
13. The Journalism of Old San Diego
14. Abortive Attempt to Establish New San Diego

PART THREE:   The Horton Period

1. The Founder of the Modern City
2. Horton’s Own Story
3. Early Railroad Efforts, Including the Texas and Pacific
4. San Diego’s First Boom
5. Some Aspects of Social Life

PART FOUR:   Period of “The Great Boom”

1. Coming of the Santa Fe
2. Phenomena of the The Great Boom
3. Growth of Public Utilities
4. Water Development

PART FIVE:   The Last Two Decades

1. Local Annals, After the Boom
2. Political Affairs and Municipal Campaigns
3. Later Journalism and Literature [new material in second edition]
4. The Disaster to the Bennington
5. The Twentieth Century Days
6. John D. Spreckels Solves the Railroad Problem

PART SIX:   Institutions of Civic Life

1. Churches and Religious Life
2. Schools and Education
3. Records of the Bench and Bar
4. Growth of the Medical Profession
5. The Public Library
6. Story of the City Parks
7. The Chamber of Commerce
8. Banks and Banking
9. Secret, Fraternal and Other Societies
10. Account of the Fire Department

PART SEVEN:   Miscellaneous Topics

1. History of the San Diego Climate
2. San Diego Bay, Harbor and River
3. Governmental Activities
4. The Suburbs of San Diego

Political Roster, City of San Diego
Political Roster, San Diego County