Recollections of the 11th Circuit Bar #5

 I meet Dudley Herman and George Johnson  and "Bubb Bartoe" disease.

I had been assigned by the Attorney General to handle two cases involving State College professor’s who had formed a”non profit “ corporation that would be administered by them and accept gifts to the corporation.

One involved that famous Villa at Hot Springs and the other involved  Mathew Tiernan who had been  a bachelor old time irish rancher near Dupree.

Mathew was one of that bucnh of old time ranchers who had survived everything west river had to offer and had, like Dudley Herman’s father amassed a considerable estate.

His only liying realtives were the Raymond family in Gregory. They had hired Didley Herman to protect their interests.

Now Mathew was no ordinary soul. He had amassed his fortune and as Dudley would often write in his numerous will contest cases: “where the body lies there the vultures shall gather.”

I have always been suspicious of these “non profits”  and “valhalla’s”and presumably state run enterprises and went to Duoree to investigate.

Not to my surprise I found that Mathew was no ordinary soul.

The days of 76 committee had hired Mathew to drive the six team stage in the Days of 76 parade- he being one of the old timers who had experience with a six team stage.

Our old timer, Mathew, not only drove the stage in the parade, he didn’t stop, but proceeded to high tail that stage  out of town intent on taking it to his ranch near Dupree.

Needless to say he was stopped by the police and never asked to drive that stage again.

Now this group of State College professors heard about this wealthy bachelor old time rancher near Dupree.

I don’t know how far Mathew got in school but hard knocks had taught him that to survive west river you “had to be your own tom cat.”

As an inducement to leaving his estate to the “corporation” the professors brought Mathew some prize bulls from State College herd  to improve his herd.

After the bulls had serviced his cow herd   the professors came to get them to return to State College.

Too bad, Mathew told them- all those bulls had died. It seems they had succumbed to the dread “Bubb Bartoe” fever.

Now those of you who have never witbessed “ Bubb Bartoe” fever in the livestock industry let me explain.

Thomas D Lyons, born in Lake County  SD  before the turn of the century, knowledgeable about the cattle industry, a graduate of Notre Dame and USD law school, who later worked a homestead in Gregory County,  was a friend of Jack Sully,  and became a judge in Oklahoma fully explained “Bubb Bartoe” disease in the following artickle:

“IN JULY, 1908, when the Democratic National Convention at Denver was drawing to a close, my money began to run short. For the first time in my life I had seen a charge of one dollar for ham and eggs for breakfast. I still had my "tourist-car" return trip ticket on the Santa Fe via Kansas City. So I took my "telescope" (a cheap capacious traveling bag) and walked down to the Santa Fe Station.

When I got back to Tulsa we immediately plunged into a trial which did not involve very much money,  but was bitterly contested. '.....

(When the trial finished) Colonel Marcum, the great criminal lawyer from Muskogee, was in our office chatting with his nephew, my law partner, Ben Rice. Charlie Brown had got into town on his saddle horse in good season and appeared at our office with two bottles of fine Kentucky Bourbon. This was not at all unacceptable to Colonel Marcum. Of course, the conversation immediately concerned the pending cause and speculation as to the verdict. Charlie Brown thought that the law was against us and that the plaintiff would recover a verdict, although he very vigorously stated his views of the injustice of such a result.

Gus Orcutt, an intermarried Creek citizen who had control of seven or eight fine allotments adjoining the city limits of Tulsa, had come into the office; as he and Charlie Brown had worked together as cowpunchers, they began some entertaining reminiscences. Gus told of the cowpuncher who had delirium tremens and who went to bed in a rooming house. His only preparations for bed consisted of removing his belt and pistol and laying them by his side. He slept fully dressed with his boots and hat on. He awakened suddenly and in the darkness saw a large black cat sitting on the foot of his bed, glaring at him with fiery eyes. He picked up his pistol and said aloud, "Cat, if you are a cat, you're in a hell of a fix," as he took good aim at the cat's head. Then he added, "Cat, if

you're not a cat, I am in a hell of a fix. "

Charlie, however, became restive and wanted news of the verdict. He accompanied me to the courthouse, although it was not yet 8:30 and we did not expect the jury to report until 9:00 o'clock. However, just as we walked into the courtroom, the jury filed in with a verdict for the defendant. Cashier Brown had difficulty in restraining his enthusiasm. He crowed like a rooster, then gobbled like a turkey, and shouted out, "Open the big gate, I am bringing them in alive" --this was an Indian Territory stock expression indicating jubilation. Gus Orcutt told us afterwards that gobbling like a turkey was a very dangerous thing for a man to do in the early days in the Creek Nation since it was the Creeks' signal of death defiance. Indeed one Creek Indian was acquitted of murder and his plea of self defense was allowed when the testimony showed that his assailant had gobbled at him.

**

That afternoon Mr. Brown and Colonel Marcum again dropped in for a few minutes' chat. Mr. Brown expressed his renewed confidence in law, justice and court procedure, which had been badly shaken by the court's instructions in the cattle case. He also gave strict instructions to all of the employees of the Cherokee Stockyards Company to pay only by check made to the owner of the cattle. He recounted again with great glee the testimony of Colonel Woodley as to Stribby and very properly attributed our success in the lawsuit to this particular bit of

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testimony. Colonel Marcum remembered that long observation in the courts on his part bore out Ralph Waldo Emerson's statement that in a trial the whole event frequently turns on just a short statement. He thought it remarkable that a retired scholar should have had such practical knowledge of contested cases. We endeavored to get him to tell some tales of criminal trials before Judge Isaac Parker, the great hanging judge at Fort Smith, but we could not arouse his interest. He said finally, "The only Fort Smith case that comes to my memory at this time is a civil suit, a cattle case where I got a terrible beating and they had a Kansas Yankee as a lawyer for the other side. I sure thought I could win that case, with a few minutes' speech about old John Brown, the old Abolitionist maniac who murdered people in cold-blood and afterwards was practically. deified up North. However, I got a bad beating, in complete surprise; I haven't forgotten it yet. "

"Did any of you boys hear of the.

Ed Yoak case?" Gus Orcutt and Charlie Brown said that they had heard something about Ed Yoak having been assassinated by someone who stood outside his window and "filled him full of buckshot." The whole case was shrouded in mystery, and it was understood that there had been several killings, as they were called in Indian Territory, in reprisal, but it was never known for a certainty that the right man had been killed. Ed Yoak was a Texas cowpuncher who had become an intermarried Cherokee citizen and cowman although his means were slender. It was not long before he had thousands of head of cattle grazing on

the rich grazing lands of the Cherokee Nation proper, which of course was a totally different area from the Cherokee Strip. It was whispered that the cattle really belonged to a big Texas cattleman named Houston Hancock, and the case of Hancock against Yoak at Fort Smith attracted a good deal of attention. No one but enrolled Cherokee citizens had a right to graze cattle on the lands of the Cherokee Nation. Yoak had sold a big bunch of cattle, and soon thereafter Hancock appeared claiming to be the owner of one-half of the herd as a secret partner and entitled to the proceeds. However, he was unable to prevail in the lawsuit at Fort Smith; Yoak retained the entire proceeds-- whether rightfully or wrongfully was not of course fully known. Houston Hancock, however, was a man. of substance, a highly respected figure among the Texas cattlemen; his friends had implicit confidence in his statement that he had furnished the cattle and that half of the herd was his property. His Texas friends also predicted to Colonel Marcum that he would not lightly bear the affront and injustice put upon him.

Colonel Marcum went on to say that a few months after Ed Yoak had been buried when interest in the crime had somewhat abated, a tall, bowlegged, gangling, rusty-heading, freckled-faced Texas cowpuncher named Bubb Bartoe set up in the cattle business in the Osage Nation. It became known that he had been one of Houston Hancock's favorite cowpunchers. There was a rumor that Mr. Hancock, in a moment of indignation recounting the unjust treatment he had received in the Indian Territory, said, "Bubb, over at Fort

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Smith they made me swallow a big dose of Indian Territory justice and I didn't like it. How would you like to go up there and file a Texas counterclaim in the Cherokee Nation? You might develop into a cattleman, yourself." It was claimed that the United States Marshall's office in some way learned that about a month after the death of Ed Yoak, Bubb Bartoe received at Adair, Indian Territory, a draft for one thousand dollars. Bubb certainly became a Cherokee Nation cattleman and, in order to have an enrolled Cherokee citizen for a partner, made an arrangement with a one-eighth-blood Cherokee who lived in the Osage Nation.

"The partnership prospered and owned thousands of head of cattle. Then one day Bubb' s partner died peaceably at home from typhoid fever, leaving a widow and several children and," said the Colonel, "it was the administrator of his estate who sued my client Bubb Bartoe. Three or four years had gone by and the herd had dwindled from thousands to hundreds. No administrator had been appointed as the widow had a good deal of confidence in Bubb. However one of her husband's friends, a Coffeyville banker, began to look into her affairs and had an administrator appointed with a suit instituted for an accounting. Bubb's regular lawyers got me to help try the case at Fort Smith. We proved that the herd had been destroyed by dengue fever, tuberculosis, hoof-and-mouth disease, lightning, wolves and coyotes, and by every other ailment or cause which kills cattle. We had some pretty good witnesses that Bubb had furnished, and everything looked pretty rosy."

"I must say that the Kansas lawyer, I believe his name was Bill Hackney, sprang a surprise on us. He had some pretty definite figures which the banker had got up disclosing that there were six or seven thousand head of cattle, lots of horses, saddles, and so on, owned by the partnership at the time of the death of Bartoe' s partner. It was equally definite and certain that those numbers had dwindled to a few hundred. The explanation of the losses was at best somewhat vague and indefinite. The real question was the weight to be accorded to the testimony of Bubb Bartoe himself as he was the man who furnished most of the explaining. There was an atmosphere about him which was a bit unpleasant, sufficient to arouse the suspicion of sharp observers, but I thought that the jury would swallow his story. When I made my argument, I attempted to 'try' the Kansas lawyer and old John Brown, but I had a feeling that while the jury laughed and seemed to enjoy some of the old sure-fire expressions, they were somewhat unconvinced.

"Then this fellow Hackney got up and made the best short speech I every heard in my life. He did not raise his voice; he didn't smile; he didn't gesticulate and he didn't orate. He merely said,

'Gentlemen of the jury, you have heard the testimony and you have seen Mr. Bubb Bartoe and listened to him. It all depends on whether his story is credible, or not. Frankly, I do not know. We do know that the partnership owned thousands of head of cattle at the time of the death of one partner, and that now,

----- -- -----

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I ____ _

under the exclusive management of Mr. Bubb Bartoe, there remains to his late partner's widow a half interest in only a few hundred head of cattle. Yes, it is true that I am a Kansas lawyer, but I am thinking of changing my residence and changing my occupation. I am considering moving to the Cherokee Nation, to go into the cattle business. I am giving it prayerful consideration although I am not a very religious man. I am glad, however, that one of your number, Brother Fletcher, who is a coal miner during the secular days of the week, is a minister of the gospel on the Sabbath, because he--and I believe all of you--will be interested in my next point. When I move to the Cherokee Nation, to become a cattleman, I am going to become convicted of religion, and I expect to

pray, daily and nightly; and when at night I offer my petitions for the safety of my family and my herds and flocks, I shall not pray that my cattle be protected by Providence against lightning stroke, the wolf, the coyote, the rattlesnake, the dengue fever, cattle tuberculosis, or hoof-and-mouth disease-- I shall fear none of these dread scourges and epidemics. Instead, I shall pray, nightly and daily, that my herds and flocks will be protected from the Bubb Bartoe fever.'"

The Colonel ended the tale by saying, "The jury was out, it seemed to me, just about thirty seconds, and came back with a verdict for the plaintiff, for every penny the plaintiff asked for. The Bubb Bartoe fever was too much for them."

To be continued

George  Johnson and Dudley Herman really will be next