Skip to main content

Declaration to the Geauga County Court of Common Pleas, 7 May 1838 [JS for the use of J. Granger v. Smalling and Coltrin]

  1. Home > 
  2. The Papers > 
Introduction to JS for the use of J. Granger v. Smalling and Coltrin Capias ad Respondendum, 28 February 1838 [JS for the use of J. Granger v. Smalling and Coltrin] Docket Entry, Discharge, 3 April 1838 [JS for the use of J. Granger v. Smalling and Coltrin] Declaration to the Geauga County Court of Common Pleas, 7 May 1838 [JS for the use of J. Granger v. Smalling and Coltrin] Docket Entry, Leave to Amend Plea, circa 4 June 1838 [JS for the use of J. Granger v. Smalling and Coltrin] Amended Plea and Notice, circa 6 August 1838 [JS for the use of J. Granger v. Smalling and Coltrin] Docket Entry, Verdict and Notice of Appeal, 8 November 1838 [JS for the use of J. Granger v. Smalling and Coltrin] Docket Entry, Costs, 8 November 1838 [JS for the use of J. Granger v. Smalling and Coltrin] Transcript of Proceedings, circa 8 November 1838 [JS for the use of J. Granger v. Smalling and Coltrin]

Declaration to the Geauga County Court of Common Pleas, 7 May 1838 [JS for the use of J. Granger v. Smalling and Coltrin]

Source Note

Perkins & Osborn on behalf of JS, Declaration, , Geauga Co., OH, [7 May 1838], JS for the use of J. Granger v. Smalling and Coltrin (Geauga Co., OH, Court of Common Pleas 1838). Featured version copied [ca. 8 Nov. 1838] in Geauga County Court of Common Pleas Record, vol. V, pp. 501–502; handwriting of ; Geauga County Archives and Records Center, Chardon, OH.
The declaration appears in the Geauga County Court of Common Pleas Record, volume V. The volume contains 330 leaves plus two front flyleaves and two back flyleaves measuring 16 × 10 inches (41 × 25 cm). The boards and spine are covered in brown leather. The bound volume measures 16¾ × 11½ × 2½ inches (43 × 29 × 6 cm). Gold letters on the spine read: “LAW RECORDS | COM. PLEAS | GEAUGA COUNTY | U”. The spine also includes an inscription in black ink: “V”. Page 1 is inscribed on the verso of the second front flyleaf. Entries in the volume span circa 3 April 1838–circa 16 April 1839. Each case entry is written in ink. Common Pleas Record, volume V, was microfilmed by the Micro-Photo Service Bureau of Cleveland, Ohio, in 1948. The volume was in the possession of the Geauga County, Ohio, Court of Common Pleas from the volume’s creation until 1996, when it was transferred to the newly established Geauga County Archives and Records Center.

Footnotes

  1. [1]

    Volumes of the Geauga County Court of Common Pleas Record have been microfilmed and made available at the Family History Library; some of these microfilm copies are titled Final Record Book.

Historical Introduction

On 7 May 1838, JS through the law partnership Perkins & Osborn brought a declaration to the Court of Common Pleas in a lawsuit against and . Perkins & Osborn, comprising partners and , had begun the lawsuit on JS’s behalf on 28 February 1838 for an outstanding promissory note of $500 that JS received from Smalling and Coltrin on 30 September 1836. At the time of issuing the promissory note, Smalling and Coltrin were church members; Smalling lived in , Ohio, and Coltrin resided in nearby . The reason for the promissory note is not specified in the court records. The note may have been for mercantile goods; the firm began operating a store in , Ohio, in September 1836, and JS may have operated a store in Kirtland. It is also possible that the debt was for land Smalling and Coltrin purchased from JS.
By February 1838, with the note past due, JS assigned it to , a brother of . In cases such as JS’s against and , in which the note had been assigned to another individual, the declaration clarified that the individual to whom it had been transferred should be paid on the note. Therefore, although JS brought the lawsuit, Granger was to be paid.
A writ was issued on 28 February against and , requiring them to appear before the court of common pleas on 3 April 1838. Local sheriff found Smalling and served him a writ for the lawsuit. Coltrin could not be found and therefore was not prosecuted. Smalling offered a plea, no longer extant, in response to the lawsuit, and on 3 April the court agreed to postpone the trial until the next term of court.
On 7 May, Perkins & Osborn filed the declaration with the Court of Common Pleas in , Ohio. The declaration constituted JS’s grounds for the suit and identified the parties and circumstances involved in the suit. In the declaration, Perkins & Osborn reiterated and ’s debt of $500 and indicated that the law partnership would prosecute for payment of the outstanding debt and for damages, amounting to $1,000. Perkins & Osborn drafted the document using the language and structure from a legal form in general use in . This form likely included instructions to list “any sum sufficient to cover the real demand,” which they calculated to be $1,000.
As was common practice in contemporary declarations, the wording in the featured declaration suggests Perkins & Osborn were presenting several distinct counts against the defendants, such as “the price and value of goods . . . then and there bargained and sold,” “for money then and there lent,” “for money then and there paid by the plaintiff,” and “for money found to be due from the defendant . . . on an account.” The courts of treated these items collectively, stating that the “common counts thus made up are but one count.”
In response to the declaration, requested the opportunity to amend his original plea with the court—a request that the court granted. His amended plea, presented in August 1838, stated that he had not promised to pay the amount identified by JS in the declaration and that JS owed him an even greater amount to compensate for notes that Smalling apparently held but that had no value. When the case was tried in November 1838, a jury concluded that Smalling was not responsible for repaying JS.
The original declaration, likely written by or , is apparently not extant. The version featured here was copied into the Geauga County Court of Common Pleas Record by clerk around 8 November 1838 as part of the transcript of the trial proceedings.
See also Introduction to JS for the use of J. Granger v. Smalling and Coltrin.

Footnotes

  1. [1]

    In legal terminology, a declaration is a legal pleading identifying the cause of action. (“Declaration,” in Bouvier, Law Dictionary, 1:293.)

    Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: T. and J. W. Johnson, 1839.

  2. [2]

    Transcript of Proceedings, 6 Nov. 1838, JS for use of Granger v. Smalling and Coltrin (Geauga Co. C.P. 1838), Final Record Book V, p. 501, Geauga County Archives and Records Center, Chardon, OH.

  3. [3]

    Perkins & Osborn represented JS in at least four lawsuits in 1837 and continued to oversee litigation and to apprise him of outstanding debts after his departure from Kirtland in January 1838.a The original 30 September 1836 promissory note is apparently not extant. The due date of the note was not recorded in the court records, but the court proceedings imply that the period of repayment had elapsed by the end of February 1838.b

    (a“Law Notice,” Painesville [OH] Telegraph, 21 Feb. 1834, [3]. bTranscript of Proceedings, 6 Nov. 1838, JS for use of Granger v. Smalling and Coltrin [Geauga Co. C.P. 1838], Final Record Book V, p. 501, Geauga County Archives and Records Center, Chardon, OH.)

    Painesville Telegraph. Painesville, OH. 1822–1986.

  4. [4]

    Notice, LDS Messenger and Advocate, June 1836, 2:336; Minutes, 16 June 1836; Quorums of the Seventy, “Book of Records,” 6 Apr. 1837, 17–19; 1830 U.S. Census, Strongsville, Cuyahoga Co., OH, 129.

    Latter Day Saints’ Messenger and Advocate. Kirtland, OH. Oct. 1834–Sept. 1837.

    Record of Seventies / First Council of the Seventy. “Book of Records,” 1837–1843. Bk. A. In First Council of the Seventy, Records, 1837–1885. CHL. CR 3 51, box 1, fd. 1.

    Census (U.S.) / U.S. Bureau of the Census. Population Schedules. Microfilm. FHL.

  5. [5]

    Although the declaration mentions both goods purchased from JS and money lent by JS, these statements were formulaic and were included in most cases involving unpaid debts; they may not have reflected the transaction underlying the promissory note.

  6. [6]

    The firm Rigdon, Smith & Cowdery purchased wholesale goods in New York in 1836. These goods were then sold by the firm Rigdon, Smith & Co. While the two firms were related, it is not clear whether Oliver Cowdery was a partner in both. Chester, Ohio, was around six miles south of Kirtland. (John Newbould, Invoice, Buffalo, NY, for Rigdon, Smith & Cowdery, 17 June 1836; Mead, Stafford & Co., Invoice, New York City, for Rigdon, Smith & Cowdery, 8 Oct. 1836, JS Office Papers, CHL; Rigdon, Smith & Co., Store Ledger, 1–5; “Mormonism in Ohio,” Aurora [New Lisbon, OH], 21 Jan. 1837, [3]; Notes Receivable from Rigdon, Smith & Co., 22 May 1837.)

    Aurora. New Lisbon, OH. 1835–1837.

  7. [7]

    There is little documentation for the Kirtland store, and it is unknown whether it was operated by Rigdon, Smith & Co. or by JS alone. (Deed, 3 June 1841, in Lake Co., OH, Land Registry Records, bk. A, p. 513, CHL; Brigham Young, in Journal of Discourses, 8 Oct. 1855, 3:121.)

    Lake County, Ohio. Land Registry Records, 1840–1842. CHL.

    Journal of Discourses. 26 vols. Liverpool: F. D. Richards, 1855–1886.

  8. [8]

    See, for example, Mortgage to Peter French, 5 Oct. 1836.

  9. [9]

    Julius Granger was living in Willoughby, Ohio, in 1836 and remained in the area until at least 1840. No records indicate that he was a member of the church. (Julius Granger, Agreement with Jared Carter et al., 7 Oct. 1836, Lord Sterling Papers, Lake County Historical Society, Painesville, OH; Geauga Co., OH, Probate Court, Marriage Records, 1806–1920, vol. C, p. 374, microfilm 873,461, U.S. and Canada Record Collection, FHL.)

    Lord Sterling. Papers, 1835–1850. Lake County Historical Society, Painesville, OH.

    U.S. and Canada Record Collection. FHL.

  10. [10]

    “When a suit is brought in the name of one person for the use of another . . . the only object of naming the assignee in the suit, is to show who controls the suit, and to whom the officer may pay over the avails of the judgment.” (Swan, Practice in Civil Actions and Proceedings at Law, 1:36.)

    Swan, Joseph R. The Practice in Civil Actions and Proceedings at Law, in Ohio, and Precedents in Pleading, with Practical Notes; together with the Forms of Process and Clerks’ Entries. 2 vols. Columbus: Isaac N. Whiting, 1845.

  11. [11]

    Transcript of Proceedings, 6 Nov. 1838, JS for use of Granger v. Smalling and Coltrin (Geauga Co. C.P. 1838), Final Record Book V, pp. 501–504, Geauga County Archives and Records Center, Chardon, OH. The reason for Coltrin’s absence is not known; he may have been temporarily away from his home in Strongsville, Ohio, or he may have moved from the state.

  12. [12]

    By 1838, Smalling no longer had any ties to the church. He had been a leader among the dissenters in Kirtland, many of whom opposed JS’s involvement in temporal affairs, and had been excommunicated from the church in late December 1837. No documentation indicates Coltrin’s standing in the church in 1838. (John Smith and Clarissa Lyman Smith, Kirtland, OH, to George A. Smith, Shinnston, VA, 1 Jan. 1838, George Albert Smith, Papers, CHL.)

    Smith, George Albert. Papers, 1834–1877. CHL. MS 1322.

  13. [13]

    See “Declaration,” in Bouvier, Law Dictionary, 1:293–294.

    Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: T. and J. W. Johnson, 1839.

  14. [14]

    In debt litigation, damages include not only the amount of unpaid promissory notes but also a penalty for nonpayment. (“Damages on Bills of Exchange,” in Bouvier, Law Dictionary, 1:279.)

    Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: T. and J. W. Johnson, 1839.

  15. [15]

    Swan, Practice in Civil Actions and Proceedings at Law, 1:203, 216–217.

    Swan, Joseph R. The Practice in Civil Actions and Proceedings at Law, in Ohio, and Precedents in Pleading, with Practical Notes; together with the Forms of Process and Clerks’ Entries. 2 vols. Columbus: Isaac N. Whiting, 1845.

  16. [16]

    Swan, Practice in Civil Actions and Proceedings at Law, 1:216–217, 217nA. In December 1834, the Ohio Supreme Court ruled on the case of Nichols v. Poulson, in which the plaintiff presented his case using language similar to what Perkins & Osborn used in the 7 May 1838 declaration. The Ohio court noted the different counts and stated, “There are several other distinct paragraphs, for other things [money owed], stated in the same manner. . . . All these paragraphs put together make but one count.” (Hammond, Cases Decided in the Supreme Court of Ohio, 307.)

    Swan, Joseph R. The Practice in Civil Actions and Proceedings at Law, in Ohio, and Precedents in Pleading, with Practical Notes; together with the Forms of Process and Clerks’ Entries. 2 vols. Columbus: Isaac N. Whiting, 1845.

    Hammond, Charles. Cases Decided in the Supreme Court of Ohio, in Bank, at December Terms, 1833, 1834. Vol. 6. Cincinnati: Robert Clarke, 1872.

  17. [17]

    Smalling stated he had $1,500 in Kirtland Safety Society notes that could no longer be redeemed or circulated, and he wanted JS to repay the amount. Smalling was not alone in his demands for repayment. Others in northeastern Ohio believed JS and Rigdon should be held financially responsible for the unredeemed notes of the Safety Society. According to church member Samuel Tyler, a large group of Saints who traveled from Kirtland to Far West, Missouri, in summer 1838 was confronted in Willoughby and Mansfield, Ohio, by individuals who demanded payment for the Safety Society notes in their possession. (Transcript of Proceedings, 6 Nov. 1838, JS for use of Granger v. Smalling and Coltrin [Geauga Co. C.P. 1838], Final Record Book V, pp. 501–504, Geauga County Archives and Records Center, Chardon, OH; Tyler, Journal, 16 July 1838, 11.)

    Tyler, Samuel D. Journal, July–Oct. 1838. CHL. MS 1761.

  18. [18]

    On 8 November, Perkins & Osborn, acting on behalf of JS, notified the court of the attorneys’ intention to appeal the case to the Ohio Supreme Court, but it appears no appeal was made. (Geauga Co., OH, Court of Common Pleas, Journal N, p. 407, 8 Nov. 1838, Geauga County Archives and Records Center, Chardon, OH.)

    Geauga County Archives and Records Center, Chardon, OH.

Asterisk (*) denotes a "featured" version, which includes an introduction and annotation. *Promissory Note from Benjamin Hoyt, 12 February 1840–J Transcript of Proceedings, circa 8 November 1838 [ JS for the use of J. Granger v. Smalling and Coltrin ]

Page 501

Go to next page 2
The State of Ohio) Court of Common Pleas after
ss [scilicet]) April Term 1838.
Joseph Smith Jnr. for [p. 501]
View entire transcript

|

Cite this page

Source Note

Document Transcript

Page 501

Go to next page 2

Document Information

Related Case Documents
Editorial Title
Declaration to the Geauga County Court of Common Pleas, 7 May 1838 [JS for the use of J. Granger v. Smalling and Coltrin]
ID #
5854
Total Pages
2
Print Volume Location
JSP, D6:135–139
Handwriting on This Page

    Footnotes

    1. [1]

      The Ohio legislature scheduled three terms of court per year for each county court. The legislative records for Ohio in 1838 are not extant, so the exact dates of the 1838 terms cannot be determined. Based on the dates for the 1837 and 1839 terms of court, the April 1838 term for the Geauga County Court of Common Pleas likely occurred between 1 and 16 April. (An Act to Regulate the Times of Holding the Judicial Courts [4 Feb. 1837], Acts of a General Nature [1836–1837], p. 13, sec. 4; An Act to Regulate the Time of Holding the Judicial Courts [12 Feb. 1839], Acts of a General Nature [1838–1839], p. 14, sec. 4.)

      Acts of a General Nature, Passed at the First Session of the Thirty-Fifth General Assembly of the State of Ohio; Begun and Held in the City of Columbus, December 5th, 1836. And in the Thirty-Fifth Year of Said State. Columbus: S. R. Dolbee, 1837.

      Acts of a General Nature, Passed by the Thirty-Seventh General Assembly of Ohio, at Its First Session, Held in the City of Columbus, and Commencing December 3, 1838, in the Thirty- Seventh Year of Said State. Columbus: Samuel Medary, 1839.

    Go to page