Former Minnesota Supreme Court Justice John E. Simonett passed away in July after long service to both the bench and bar of Minnesota. His scholarship, humor, and affection for this state and its people will not soon be forgotten and are embodied in this article, which we reprint by permission. Ed.
“There are three great branches of the law,” the senior member of the bar told me when I first arrived at the county seat. I listened respectfully, but also somewhat skeptically, as befitted a man fresh out of law school. He then elaborated: “First, there is the statutory law, the law enacted by the legislature, found in the codes and statute books; second, there is the common law, the law handed down in court decisions since before the days of Coke and found in the reported court cases; and finally, and most important, there is the common law of Morrison County.
It is now ten years later and, oh, ‘tis true, ’tis true. Not all the law is in the books.
Strange, these days when legal book publishers expertly minister to every felt and unfelt need of the modern law office, that the common law of Morrison County has been singularly ignored. Never a day passes but new volumes appear off the presses, but all of them deal with the first two great branches of the law, never the third. There are books on planning the estates of clients with estates exceeding $1 million, learned dissertations on whiplash injuries, and a veritable paper blizzard of monthly supplements to the “complete” six-volume set on motorcycle intersection accidents purchased only two years ago. Yet the rich vein of Morrison County common law has never been mined.
Surely to the legal book publishers this field must be as lucrative as it is virgin. There are 87 counties in Minnesota alone, each with its own distinctive common law. Each day new precedents are being set down in every county by real estate agents, bankers, justices of the peace, constables, auction sale clerks, notaries public, and other prominent jurists. Indeed, when one realizes this legal process is also proceeding apace in 49 other states, the complete dearth of literature on the subject is nigh incredible.
This brief essay is written, then, in the modest hope it may be some kind of pioneering effort in exploring the little-known third great branch of the law, so that it may stimulate both the serious student of jurisprudence and the law book publisher. It is fitting, I think, that Morrison County leads the way now, as it has so often in the past, in the field of jurisprudence. Justice Holmes observed that the life of the common law is experience, not logic. Undoubtedly, he had Morrison County in mind.
Morrison County Rule Travels
It was the common law of Morrison County that first established that no legal document signed with a ballpoint pen is legal. Nobody knows who first made the ruling or why, but it stubbornly persists, and, as I understand it, the rule has spread as far east as Massachusetts.
A will, of course, should not be executed on a Sunday, nor should a deed except in the direst emergency, although it is legally permissible to execute an earnest money contract on Sunday. Apparently the law succumbed to the temptation of the earnest money. Assuredly some day it will happen, human nature being what it is—the dream case—somebody will sign a will on Sunday with a ballpoint pen. This will mean going to see a lawyer and paying money, which might have otherwise been used for worthwhile pursuits, to get the whole mess straightened out.
Also, a will does not have to be probated. Where this notion originated has never been adequately explained. Like much of the common law, its origin is shrouded in mystery, in the legends and mores of past generations. Some say the doctrine evolved from a logical rather than a historical basis, that it was reasoned by the people of Morrison County that, if a man paid a lawyer once for making the will, it could hardly be expected that he, or more accurately his estate, should have to pay the lawyer a second time for probating it.
Perhaps the first legal crisis any married couple faces is when, having purchased their home, the lawyer asks how the deed should be drawn—with the husband’s name alone or with both husband and wife as grantees. If the wife’s name is not included on the deed, won’t she, the keeper of the hearth, be without any legal rights to her own home? This is at best a sticky situation and, unless love is strong, domestic tranquility dictates both spouses hold title. This explains why so much property is held in joint tenancy in Morrison County, or to put it more precisely, why husbands and wives hold property with an “or” between their names.
True, there is the academic objection that joint tenancy disinherits the children, that upon the father’s death the property goes outright to the wife, evading any provision the father might have contemplated for his offspring. The objection is academic because it is firmly believed in Morrison County that a surviving spouse will not remarry and will always cherish the children in a pecuniary as well as a maternal or, in the unheard of instance where the wife dies first, paternal way.
The Impact of Women
The full impact of women on the common law has never been really explored. There is the story that has long circulated in Morrison County, although it is probably apocryphal, about the grieving widow who was interrogating the caretaker of the local cemetery as to the location of her spouse’s grave, her late husband having been J. Howard Jackson. The caretaker, having checked the directory, told her there was no cemetery lot in that name, although there was one in the name of Mathilda Jackson. “That’s him,” the widow avowed with satisfaction, “Everything, you see, is in my name.”
If the common law of Morrison County is ever put in print, there should be a separate volume entirely on criminal law. I say this not only because a multivolume set is more impressive as well as expensive, but equally important, the subject deserves a volume to itself, and I can only touch on it here. I do not mean the lackluster offenses of armed robbery, murder, and white slavery but real criminal law—crimes of passion such as driving a car under the influence of liquor; crimes of revenge, such as nonsupport; and crimes of premeditation, such as shining deer. Here a textbook would stand in good stead the practitioner who must encounter a Morrison County jury. The governing principle, as Mr. Dooley once said so well, is that “In this country a man is presoomed to be guilty until he’s proved guilty an’ after that he’s presoomed to be innocent.” (As contrasted with the English system where “… a man is presoomed to be innocent till he’s proved guilty an’ they take it fir granted he’s guilty.”)
All Defendants Are Insured
On the other hand, a Morrison County jury is never influenced by sympathy for an injured plaintiff unless the defendant is insured. Since the Minnesota Supreme Court has held that it is prejudicial error to disclose to a jury that a litigant has liability insurance, local law has established the presumption that all defendants are insured. This is an irrebuttable presumption because it is usually objectionable in Minnesota to tell the jury that the defendant is not insured.
What gives the common law of Morrison County its zest and vitality is its great capacity to adapt to changing conditions. One illustration, the local law on fixtures, will suffice. It has always been understood in Morrison County that the corn crib goes with the land and the venetian blinds with the house. When my aunt sold her house a few years ago, she unscrewed and took with her all the light bulbs, leaving the new tenant in darkness. When I protested, she told me, first, that she was surprised her nephew had learned nothing in law school, and, second, that everybody knows the light bulbs never go with the house.
This last decade, however, presented a new and vexing problem, when television antennas began sprouting ubiquitously on rooftops. Is the television antenna, or is it not, a fixture? For several years the law was unsettled, with some real estate agents claiming the antenna stayed with the house, others disagreeing, and notaries public generally refusing to venture any opinion on the reasonable assumption that, as soon as all homes had antennas, the problem would solve itself. In any event, the question today is at rest. The television antenna is a fixture that stays with the house; any realtor or notary in the county will tell you this is the law.
In other ways, too, the common law of the county has admirably adapted itself to modern times. This is seen in the trend toward specialization that is common to all professions. Bankers in the county seem to specialize more in banking nowadays and draw fewer contracts and wills than a generation ago, and, as often happens, the increased proficiency resulting from this specialization has paid off handsomely in higher banking income to bankers.
There might be, too, a separate volume, or at least a chapter, on the relatively new field of administrative law and procedure. Actually, in Morrison County, administrative law is very old and there is much to say about it. There is much to say, for example, on such sensitive matters as how to call a creamery board meeting to order, how to find out when the town board will meet and where, and when not to speak at a village council meeting.
The common law pronounced by judges in reported court decisions and the common law of Morrison County are, at the same time, closely related and far apart. Both draw on the vast fund of common sense, prejudice, habits, and customs of the community and although the routes at times appear to go in different directions, they crisscross and seek the same destination. The common law of Morrison County is aware that a set of rules and order is necessary for a community to carry out its daily business. The arena of the common law is the lawyer’s office, the courtroom, and the appellate judge’s chambers; the arena of the uncommon law is the realtor’s office, the sales barn, and the street corner.
On Needing a Lawyer
The common law is made, or at least announced, by lawyers and judges. The common law of Morrison County avoids lawyers on the grounds that lawyers cost money and why should a man consult a lawyer about something so uncomplicated as to what is right and wrong—unless he knows he is wrong.
Yet one should not think harshly of the common law of Morrison County for it serves a useful function and discharges a ready justice. Much of it is good common sense, although I have dealt here mostly with its uncommon aspects. If at times the rules are arbitrary, it is sometimes better to have an arbitrary rule than none at all, and, if at times its doctrines seem irrational, it may be because people do not always act rationally, even in Morrison County.
The common law of Morrison County recognizes, as someone once said, that the law is too important to leave to the lawyers alone. Yet lawyers need not feel slighted. Indeed the system pays the lawyer the supreme compliment, for in matters of great moment, where an appeal is taken from the decision of the insurance agent or the notary, the appeal is taken to the attorney’s office, the court of last resort. This is, in truth, a matter of trust as well as a compliment, and if at times here I have sounded a plaintive cry, it is only because each year of law practice has brought with it an increasing realization of my vast ignorance of the third great branch of the law, the kind that is not to be found in the books.
© by The American Bar Association. This article first appeared in the March 1963 issue of the ABA Journal and is reprinted here by permission.
John E. Simonett practiced law in Little Falls, MN for 29 years following his admission to practice in 1951. He later served with distinction as an associate justice of the Minnesota Supreme Court, after which he joined the Greene Espel law firm in Minneapolis until his retirement. He passed away on July 28, 2011 at age 87.