And the answer is…

The language of the law. Part Latin, part Anglo-Saxon, all confusing.

J. K. Russell went into the District Court in Mills County, Texas, in May of 1890 and said enough was enough.

He told the court that he and Esther Doyle were married in Buchanan County, Iowa, on 29 August 1869, and from then until 1 October 1884, they lived together as husband and wife. He was a “kind, affectionate and indulgent husband.” But Esther had left him. And he wanted a divorce.1

But all of his witnesses were out of state, not in Texas. Two lived in Buchanan County, Iowa, and two in Beaverhead County, Montana, and Russell — no relation to The Legal Genealogist, by the way — had no way to compel them to come to court in Texas and testify.

So he did the next best thing. He went into court and got orders that notified the defendant that “a Commission will issue to take the Depositions of … witnesses… in answer to … Interrogatories propounded and filed… ”2

Commission? Deposition? Interrogatories?

Even when the words are in English, words used by the courts sometimes might as well be in Latin!

Fear not. These are easy. Really.

Trust me.

A commission is simply a “warrant or authority or letters patent, issuing from the government, or one of its departments, or a court, empowering a person or persons named to do certain acts, or to exercise jurisdiction, or to perform the duties and exercise the authority of an office.”3

In this particular context, it’s an order “issued under the seal of the court and the signature of the clerk, directed to some person designated as commissioner, authorizing him to examine the witness upon oath on interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission.”4

A deposition, in turn, is “testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, … reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court.”5

And the interrogatories? They’re “a set or series of written questions drawn up for … a witness whose testimony is taken on deposition; a series of formal written questions used in the judicial examination of a party or a witness.”6

So what J.K. got here was an order from the court in Texas to a qualified official in each of the two other out-of-state counties to bring the two witnesses in, make them swear to tell the truth, and then ask them a series of questions sent with the order. The answers were written down by that qualified official and sent back to the Texas court where they could be used as evidence.

The first order J.K. got was for the Iowa witnesses, and Esther was served with the notice on the 11th of June that the commission was going to be issued.7 On 9 August, he got an order for depositions of witnesses in Beaverhead County, Montana, and Esther was served with that notice on 14 August.8

The orders of the Texas court asked “any Clerk of a Court of Record, having a Seal; any Notary Public, or any Commissioner of Deeds for the State” where the witnesses lived to bring the witnesses in to answer the written questions.9

The first set of answers came back from the Iowa witnesses. The documents came in an envelope delivered to the Quasqueton, Iowa, Post Office by the Buchanan County notary public who posed the interrogatory questions to the witnesses and wrote down their answers. That envelope was picked up at the post office in Goldthwaite by the Mills County Clerk.

One of the witnesses, L.M. Doyle, was Esther’s brother. He said J.K. and Esther had been living apart for about five years, but that Esther hadn’t abandoned him: “J.K. Russell left & she stayed.” He didn’t know anything about what had happened between them but, when asked if he thought there was any possibility that they might get back together, he answered: “I don’t think there is.”10

The other witness, John Ginter, had known J.K. for 35 years and Esther for 20 years. He too didn’t know why they’d separated but knew they’d been living apart for about seven years and that J.K. had treated her well. In terms of details, he too didn’t know anything… except that there wasn’t any chance the Russells would get back together.11

The Montana witnesses’ answers arrived next. Brigham Nelson said J.K. and Esther had been living in Eagle Rock, Idaho, in 1884. He didn’t think Esther had abandoned J.K., but quoted her as saying in 1889 that she’d never live with J.K. again. And, he said, Esther had sold the property she and J.K. had lived in. He thought J.K. treated Esther kindly, but didn’t think they’d ever lived together again.12

O.R. Goodale, the second witness, said J.K. was a locomotive engineer. He too had also heard Esther say she’d never live with J.K. again. He agreed that Esther and her son had sold property she and J.K. owned while he was away and built a new house elsewhere. When J.K. came home, he went to the new house and they turned him away.13

But neither witness could say who was at fault, and Esther came to court in September 1890 and denied J.K.’s allegations.14 That made J.K. stop and think; his lawyer asked the court to delay the trial. On 22 September the court agreed.15

Looking at the evidence, and faced with a fight from Esther, J.K. gave up. The answers he’d gotten to his questions weren’t strong enough to make his case. In March 1891, he asked the court to dismiss the case: “the Plaintiff says he will no further prosecute this suit.”16

And what happened to Esther and J.K. afterwards?

Like J.K.’s witnesses, I don’t have the details…


 
SOURCES

  1. Mills County, Texas, Divorce Case No. 99, J. K. Russell v. Esther Russell, complaint filed 26 May 1890; County Clerk’s Office, Goldthwaite, Texas; digital images, “Texas, Mills County Clerk Records, 1841-1985,” FamilySearch (https://familysearch.org : accessed 25 Feb 2013).
  2. Ibid., Precept (Notice) to Serve Deft with Notice & Copy of Interrogatories, 31 May 1890.
  3. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 226, “commission.”
  4. Ibid., 227.
  5. Ibid., 357, “deposition.”
  6. Ibid., 639, “interrogatories.”
  7. Mills County, Texas, Divorce Case No. 99, J. K. Russell v. Esther Russell, Precept (Notice) to Serve Deft with Notice & Copy of Interrogatories, 31 May 1890, reverse.
  8. Ibid., Notice and service, 9 August and 14 August, 1890.
  9. Ibid., Commission to Take Deposition Out of the State, 27 June 1890 (Iowa), 20 Aug 1890 (Montana).
  10. Ibid., Deposition of L.M. Doyle, 16 July 1890.
  11. Ibid., Deposition of John B. Ginter, 16 July 1890.
  12. Ibid., Deposition of Brigham Nelson, 2 Sep 1890.
  13. Ibid., Deposition of O.R. Goodale, 2 Sep 1890.
  14. Ibid., answer by defendant, 20 September 1890.
  15. Ibid., Mills County District Court Minute Book 1: 234, 22 Sep 1890.
  16. Ibid., Minute Book 1: 251, 16 Mar 1891.
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2 Responses to And the answer is…

  1. Jeff says:

    So he just gave up his “fight” for a divorce just like that? It sounds like he wanted something more than just a divorce.

    • Judy G. Russell says:

      I don’t think he had a choice, Jeff. The loser usually pays the winners costs, and he (and his lawyer) could see the handwriting on the wall: he was going to lose this case, so cutting his losses was the best thing he could do at that point. Remember, at that time, divorce was very limited. He needed to — and couldn’t — prove abandonment.

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