Personal reminiscences of early days in California, with other sketches

by Stephen J. Field; George C. Gorham

The execution of this decree would, of course, put an end to Sarah Althea's claim, the hope of maintaining which was supposed to have been the motive of the marriage. To defeat its execution then became the sole object of Terry's life. This he hoped to do by antagonizing it with a favorable decision of the Supreme Court of the State, on the appeals pending therein. It has heretofore been stated that the case against Sharon in the Superior Court was removed from the calendar on the 14th day of November, 1885, because of the defendant's death on the previous day. The 11th of February following, upon proper application, the court ordered the substitution of Frederick W. Sharon as executor and sole defendant in the suit in the place of William Sharon, deceased. The motion for a new trial was argued on the 28th of the following May, and held under advisement until the 4th of the following October, when it was denied. From this order of denial an appeal was taken by the defendant.

It must be borne in mind that there were now two appeals in this case to the Supreme Court of the State from the Superior Court. One taken on the 25th of February, 1885, from the judgment of Judge Sullivan, and from his order for alimony and fees, and the other an appeal taken October 4, 1886, from the order denying the new trial in the cause.

On the 31st of January, 1888, the Supreme Court rendered its decision, affirming the judgment of the Superior Court in favor of Sarah Althea, but reversing the order made by Judge Sullivan granting counsel fees, and reducing the allowance for alimony from $2,500 per month to $500. Four judges concurred in this decision, namely, McKinstry, Searles, Patterson, and Temple. Three judges dissented, to wit, Thornton, Sharpstein, and McFarland.

There then remained pending in the same court the appeal from the order granting a new trial. It was reasonable that Terry should expect a favorable decision on this appeal, as soon as it could be reached. This accomplished, he and Sarah Althea thought to enter upon the enjoyment of the great prize for which they had contended with such desperate energy. Terry had always regarded the decree of the Circuit Court as a mere harmless expression of opinion, which there would be no attempt to enforce, and which the state courts would wholly ignore. Whatever force it might finally be given by the Supreme Court of the United States appeared to him a question far in the future, for he supposed he had taken an appeal from the decree. This attempted appeal was found to be without effect, because when ordered the suit had abated by the death of the plaintiff, and no appeal could be taken until the case was revived by order of the court. This order was never applied for. The two years within which an appeal could have been taken expired January 15, 1888. The decree of the Circuit Court had therefore become final at that time.

CHAPTER VII.

THE BILL OF REVIVOR.

It was at this stage of the prolonged legal controversy that Justice Field first sat in the case. The executor of the Sharon estate, on the 12th of March, 1888, filed a bill of revivor in the United States Circuit Court. This was a suit to revive the case of Sharon vs. Hill, that its decree might stand in the same condition and plight in which it was at the time of its entry, which, being nunc pro tunc, was of the same effect as if the entry had preceded the death of Mr. Sharon, the case having been argued and submitted during his lifetime. The decree directed the surrender and cancellation of the forged marriage certificate, and perpetually enjoined Sarah Althea Hill, and her representatives, from alleging the genuineness or validity of that instrument, or making any use of the same in evidence, or otherwise to support any rights claimed under it.

The necessity for this suit was the fact that the forged paper had not been surrendered for cancellation, as ordered by the decree, and the plaintiff feared that the defendant would claim and seek to enforce property rights as wife of the plaintiff, by authority of the alleged written declaration of marriage, under the decree of another court, essentially founded thereupon, contrary to the perpetual injunction ordered by the Circuit Court. To this suit, David S. Terry, as husband of the defendant, was made a party. It merely asked the Circuit Court to place its own decree in a position to be executed, and thereby prevent the spoliation of the Sharon estate, under the authority of the decree of Judge Sullivan in the suit in the state court subsequently commenced. A demurrer was filed by the defendant. It was argued in July before Justice Field, Judge Sawyer, and District Judge Sabin. It was overruled on the 3d of September, when the court ordered that the original suit of Sharon against Hill, and the final decree therein, stand revived in the name of Frederick W. Sharon as executor, and that the said suit and the proceedings therein be in the same plight and condition they were in at the death of William Sharon, so as to give the executor, complainant as aforesaid, the full benefit, rights, and protection of the decree, and full power to enforce the same against the defendants, and each of them, at all times and in all places, and in all particulars. The opinion in the case was delivered by Justice Field. During its delivery he was interrupted by Mrs. Terry with violent and abusive language, and an attempt by her to take a pistol from a satchel which she held in her hand. Her removal from the court-room by order of Justice Field; her husband's assault upon the marshal with a deadly weapon for executing the order, and the imprisonment of both the Terrys for contempt of court, will be more particularly narrated hereafter.

The commencement of the proceedings for the revival of the suit was well calculated to alarm the Terrys. They saw that the decree in the Circuit Court was to be relied upon for something more than its mere moral effect. Their feeling towards Judges Sawyer and Deady was one of most intense hatred. Judge Deady was at his home in Oregon, beyond the reach of physical violence at their hands, but Judge Sawyer was in San Francisco attending to his official duties. Upon him they took an occasion to vent their wrath.

It was on the 14th of August, 1888, after the commencement of the revivor proceedings, but before the decision. Judge Sawyer was returning in the railway train to San Francisco from Los Angeles, where he had been to hold court. Judge Terry and his wife took the same train at Fresno. Judge Sawyer occupied a seat near the center of the sleeping-car, and Judge and Mrs. Terry took the last section of the car, behind him, and on the same side. A few minutes after leaving Fresno, Mrs. Terry walked down the aisle to a point just beyond Judge Sawyer, and turning around with an ugly glare at him, hissed out, in a spiteful and contemptuous tone: "Are you here?" to which the Judge quietly replied: "Yes, Madam," and bowed. She then resumed her seat. A few minutes after, Judge Terry walked down the aisle about the same distance, looked over into the end section at the front of the car, and finding it vacant, went back, got a small hand-bag, and returned and seated himself in the front section, with his back to the engine and facing Judge Sawyer. Mrs. Terry did not (at the moment) accompany him. A few minutes later she walked rapidly down the passage, and as she passed Judge Sawyer, seized hold of his hair at the back of his head, gave it a spiteful twitch and passed quickly on, before he could fully realize what had occurred. After passing she turned a vicious glance upon him, which was continued for some time after taking her seat by the side of her husband. A passenger heard Mrs. Terry say to her husband: "I will give him a taste of what he will get bye and bye." Judge Terry was heard to remark: "The best thing to do with him would be to take him down the bay and drown him." Upon the arrival of Judge Sawyer at San Francisco, he entered a street car, and was followed by the Terrys. Mrs. Terry took a third seat from him, and seeing him, said: "What, are you in this car too?" When the Terrys left the car Mrs. Terry addressed some remark to Judge Sawyer in a spiteful tone, and repeated it. He said he did not quite catch it, but it was something like this: "We will meet again. This is not the end of it."