Fulton County, Ohio - Chapter 10: Bench and Bar, 1905

Chapter 10: Bench and Bar

THE establishment of courts of justice and the installation of the necessary officials were naturally the first w'ork attending the organization of Fulton county. Under the old Constitution of 1802, whmh was in vogue at the time of the organization, the Supreme Court had jurisdiction, both original and appellate, and, auxiliary to it, was the Court of Common Pleas. On the adoption of the present Constitution, March 10, 1851, the District, Common Pleas and county Probate Courts assumed jurisdiction.

During the period of the old Constitution, the plan of having three citizens act as associate judges - theoretically supporting the legal subtleties of the president judge with their native shrewdness and knowledge of human nature - was continuously in operation. The associate judges in the Fulton county Common Pleas court, in its short existence under the old regime, were John Kendall, Alfred C. Hough, Socrates H. Cately and William EL Parmalee.

Under the Constitution of 1802, the State was divided into three circuits, for each of which the legislature elected a President Judge; and the associate judges, sitting with him, constituted the Court of Common Pleas. The districts were changed from year to year and increased in number, and when Fulton county was organized, in 1850, it became a part of the Thirteenth Circuit, which included several counties in Northwestern Ohio. Having given a list of names of those who served as associate judges for Fulton county under the old Constitution, it may here be mentioned that the first and only circuit judge who presided in Fulton county, prior to the adoption of the new* Constitution, was Judge John H. Palmer of Paulding county. In accordance with the provisions of the creative act, to which reference has been made in a former chapter, the first term of the Court of Common Pleas held in Fulton county, was held in Pike township at the house of Robert Howard, who kept an old-fashioned inn or tavern. It being the purpose of this chapter, as its heading imports, to sketch the character and career of the respective members of the Fulton bench and bar, no description will be attempted of this first session of court. Besides, it would be futile to do so, as all official records were lost in the fire that consumed the court house at Ottokee, in 1864.

The Supreme Court had its origin in the Constitution of 1802, which provided for three members, with permission to the legislature to add another. This court was required to meet once a year in each county, a regulation that would be preposterous in 1905 ; but in 1802, with a few widely scattered counties, that was obviously the most convenient way of serving the people and the ends of justice. Until 1851, this custom of an annual session of the Supreme Court continued, but it is doubtful if any were ever held in Fulton county. This Supreme Court had both original and appellate jurisdiction and important criminal. cases were usually tried before it. Thus, until 1851, the supreme judges were peripatetic, holding court in all the counties.

The Constitution adopted in 1851 provided for a Supreme Court, such as the people are now familiar with, its duties confined to hearing appeals from lower courts. The State was divided into nine common pleas districts, and associate judges were abolished. Each district was subdivided into three parts, in each of which the people should elect a judge of the court of common pleas. Thus there were at least three common pleas judges to each of the nine districts. One or more of the judges held a common pleas court in each county, and the three judges of the district together constituted a district court, that succeeded to the functions of the old supreme court in their respective counties, and the new common pleas court succeeded to the old common pleas court, except in probate jurisdiction, for which probate judges were provided, to be elected one in each county. Under this new system Fulton county was a part of the second subdivision of the Third circuit, but only about half of the time has it continued in that classification. But the subdivision, at first composed of Mercer, Van Wert, Putnam, Paulding, Defiance, Williams, Henry and Fulton, now includes Defiance, Fulton, Paulding, Van Wert and Williamq.

The first three judges of the Third district, beginning in February, 1852, were Lawrence Hall, Benjamin F. Metcalf and John H. Palmer. Judge Palmer was succeeded in 1857 by Alexander S. Latty of Defiance. The latter was re-elected in 1861, and again in 1866 and 1871, the subdivision at this time, under the act of 1868, being composed of the counties of Paulding, Defiance, Williams, Fulton and Henry. Judge Latty retired from the bench in 1877, after a career, which in length of service has no equal in Northwestern Ohio. He was succeeded by Selwyn N. Owen of Bryan.

The General Assembly of Ohio, in January, 1879, changed the subdivisions of the Third Judicial District by making the counties of Fulton, Henry and Putnam the Third sub-division. This change necessitated the election of a judge for these counties and John J. Moore of Ottawa, was elevated to that position. He officiated as Common Pleas Judge until the fall of 1884, when he was elected to the bench of the Circuit Court, and William H. Handy succeeded him on the Common Pleas bench.

William Henry Handy was bom in Pike township, Fulton county, January 29, 1847* At the age of sixteen he enlisted in Company H, of the Eighty-sixth Ohio Volunteer Infantry, and served with that regiment until February io, 1864, when he was discharged. On April 15, following, he re-enlisted in Company H, of the Sixty-seventh Ohio Volunteer Infantry and served through the remainder of the war, being mustered out of service and discharged on September i, 1865. On returning home he entered the office of his father as a student of law, where he remained some time, and afterward further prosecuted his studies in the office of Judge Lemmon, of Toledo. At that city, in the year 1868, he was admitted to the bar, and immediately commenced practice at Ottokee, then the county seat of Fulton county, being associated with his father. This relation was maintained until January 1, 1875, when he retired from the firm to assume control, as editor and publisher, of the Democratic Expositor. To Mr. Handy's management is credited that paper's early success, and to his leaders in its editorial columns was also due the credit of having brought about a more perfect party organization in the county. After two and one-half years in the editor's sanctum Mr. Handy sold the paper and resumed the practice of his profession, which he continued up to the time of his advancement to the common pleas bench in February, 1885. At a meeting of the delegates to the Democratic judicial convention of the Third sub-division of the Third judicial district, on January 27, 1885, he was made the nominee of that body for the office of common pleas judge, and two days later he was appointed by Governor Hoadley to the office for which he had just been nominated, and entered upon the discharge of his duties on the 7th day of February. In October following he was elected for the unexpired term of Judge Moore, there being no candidate nominated.to oppose him. He was re-elected in 1888 and served until 1894, when he was succeeded by John M. Sheets of Ottawa.

At the October election, in 1893, John M. Sheets of Ottawa, was elected to succeed Judge Handy. In 1898, he was again a candidate for the position, but was defeated by Michael Donnelly of Napoleon, who was re-elected in 1903, and is the present incumbent. The legislature of 1904 changed the sub-divisions of this judicial district, adding the counties of Fulton and Van Wert to Defiance, Paulding and Williams, and also increased the number of judges to three in the new sub-division. At the election of 1904, Edward S. Matthias of Van Wert, and John M. Killits of Bryan, were the successful candidates for the newly-created judgeships, and with William H. Hubbard Of Defiance, constitute the judiciary of this sub-division.

In 1852, an act of the legislature divided the State into five circuits for the district court, and a judge of the Supreme Court was required to preside, and the district court was made a court of appeals from the common pleas court. This practice continued until the supreme judges were relieved of this duty, in 1865, after which the common pleas judges of the district, sitting as a district court, adoption of an amendment to the constitution* authorizing the creation of a circuit court, and abolishing the district court, but leaving the common pleas judges and courts undisturbed. Three circuit judges were chosen at the next election in each circuit, and Fulton county was included in the Sixth circuit.

Prosecuting Attorneys

Following is a list of those who have held the office of Prosecuting Attorney in Fulton county, and which in some cases has been the beginning of a distinguished career in the law: J. H. Read; 1852, Michael Handy; A. Carmichael; N. Merrill; 1858, M. R. Brailey; 1862, J. W. Roseborough; 1866, Octavius Waters; 1872, W. W. Touvelle ; 1874, Michael Handy; 1876, H. H. Ham; 1880, W. H. Gavitt; 1885, Mazzini Slusser; 1891, John Q. Files; 1897, William H. Fuller; 1902, Clive C. Handy.

Some of these names are mentioned biographically in other chapters. Michael Handy was one of the most prominent leaders of the Fulton county bar for upwards of thirty years. He was not to the "manor bom/' however, but came to Lucas county, Ohio, from New York, his native State, in 1840, having previously seen considerable of the world, both in the States and in Canada. He began active life as a school teacher and farmer, having previous to his admission to the bar, in 1850, at the mature age of forty years, taught school in many districts in Fulton county, and redeemed a farm therein from the wilderness. He was a robust, many-sided man, with natural endowments both mental and physical, and of splendid vigor and activity. He was Fulton county's second prosecuting attorney, succeeding John H. Read in that office, in 1852, two years after his admission to the bar. He died in 1886, full of years and honors honestly won and maintained. For many years he was associated with his son, Hon. William H. Handy, afterwards judge of the Court of Common Pleas, in law practice, and was a foeman well worthy the steel of the ablest lawyers of Northwestern Ohio. As a jury lawyer he was especially strong; for being a man of the people he knew them, their excellences, their weaknesses, their prejudices. Upon his professional name or his reputation as a citizen, there never was blown the breath of dishonorable suspicion or accusation.

Moses R. Brailey was a native of the State of New York, and was born in Ontario county, that State, November 2, 1816. In 1837, having just attained his majority, he started .to seek his fortune in the West, as Ohio was then called, and located in the same year in Huron county. He had been in Ohio but a short time when he began to take an active part in local politics, and his attention was thereby directed to the legal profession as a means, among other objects, of securing prominence and influence. Being encouraged by his neighbors, who had begun to appreciate his talents and energy, and having received in his boyhood, in New York, the rudiments of a sound English education, which had been sup- plemented by considerable reading and close observation of human nature, he concluded to study law. In 1840, he entered the 6ffice of Stone & Kellogg, a leading firm at Norwalk, the county seat of Huron county, and after two years of close application, was admitted to the bar in 1842, and at once opened an office in Norwalk. Devoting himself assiduously to his profession, he soon secured a living business, and in 1852 was elected prosecuting attorney of that county, the duties of which he discharged with excellent success. Having real estate interests of considerable value and promise in the then new county of Fulton, in 1857 he removed to that county, and, opening a law office, in 1858 he was elected prosecuting attorney, and was again elevated thereto in i860, acquiring also a large civil business in the meantime. Immediately on the first call of President Lincoln for troops to defend the government, on April 17, 1861, Mr. Brailey enlisted as a private in a company which was recruited for, and expected to become, a part of the historic Fourteenth Ohio Volunteers, the first colonel of which was the gallant James B. Steedman. For some reason, known best to the military authorities of the State, the company was disbanded in June, 1861, without being sent to the field of active military operations. On August 13, 1861, Mr. Brailey again enlisted in the Union army, and was commissioned captain of Company I, in the Thirty-eighth Ohio Volunteer Infantry, and on January 1, 1862, was promoted to be major of the regiment. In March of the same year, by reason of ill health, he was compelled to resign; but devoting all his time and energies to the cause of his country, as soon as his health had been somewhat restored, Major Brailey set about the work of recruiting under the authority of the adjutant-general of the State, and in June, 1862, had raised a company for the Eightyfifth Ohio Volunteer Infantry, which was assigned to the duty of guarding Confederate prisoners at Camp Chase. In this regiment he held the commission of a captain, but was transferred therefrom in August of the same year, to the One Hundred and Eleventh Regiment of Ohio Infantry, with the rank of major, and commanded that regiment in the field until the winter following. In January, 1863, Major Brailey was promoted to the lieutenantcolonelcy of his regiment, and on the report of the Board of Army Surgeons attached to the military department of the Southwest, in January, 1864, he was discharged for disability, having just previously, for meritorious service, been brevetted brigadier general. Immediately thereafter he was appointed pay agent for the State of Ohio, with headquarters at Columbus, and collected and disbursed over four millions of the money of Ohio soldiers, losing not a cent. In addition to his other duties, while acting as pay agent. General Brailey assisted in the organization and equipment of eleven regiments of Ohio troops, for the field. At the Statfe election, in 1865, the people of Ohio further rewarded the efforts of General Brailey, in behalf of his country, by electing him Comptroller of the State treasury, to which position he was again elected

William H. Gavitt was born in Franklin county, Ohio, November 12, 1844, and was educated at the Ohio Wesleyan University, one of the most prominent educational institutions in the country under the immediate ecclesiastical control of the Methodist Episcopal church. On January 12, 1863, be began studying law with Michael Handy at Ottokee, the old county-seat of Fulton county, and completed his studies at Delaware, in the office of James R. Hubble, at that time a leading lawyer of central Ohio. On November 25, 1865, Mr. Gavitt was admitted to the bar, and immediately opened an office at Wauseon. Wearying somewhat of the law after a few years, he went to Isabella county, Michigan, where, in connection with Dr. S. T. Norden, he engaged in the drug business. In 1876 he returned to Fulton county, and again embarked in the legal practice, this time at Delta, and in 1880 he was elected prosecuting attorney of Fulton county, being re-elected two years later.

Mazzini Slusser received his legal education in the office of A. C. Baldwin, at Pontiac, Michigan, and at the Michigan University, graduating in the law department thereof, in 1876. His rudimentary and literary training was acquired in the public schools of Bryan, Ohio, and at an academy which flourished there some years ago. After spending two years in public school work, Mr. Slusser located at Wauseon, in 1878, and followed the business of general insurance until 1880, when he formed a partnership with L. M. Murphy and began the active practice of the law. In 1885 he was elected prosecuting attorney of Fulton county, and after serving two terms in that position he removed to Chicago, where he now has a fine practice.

The Probate Court

This court was created by the constitution of 1851, with the provision that one judge of the same should be elected in each county. It is an office peculiarly local and intimately associated with the affairs of all the people, and has been filled by some of our best citizens. Samuel Gillis, the first judge elected, was one of the early settlers of Fulton county. He was bom in Argyle, Washington county, New York, in 1789, and settled in Victor, Cayuga county, in 1811. He served in the war of 1812, was at Sackett's Harbor, was taken prisoner and held in Canada for several months, and was present at the burning of Quebec. Mr. Gillis was among the early settlers in Chesterfield township and by occupation was a farmer. He was the first probate judge of Fulton county, and filled many township offices. He died, February 9, 1871.

Lucius H. Upham, the immediate successor to Mr. Gillis, held the dffice only about one month, when he was unseated. The next, Socrates H. Cately, was for about forty-two years one of Swan

Bench And Bah

Creek township's most active and enterprising citizens. He was a native of Cortland county. New York, and was born on January 8, 1815, in the calendar of the Democratic party known as "St. Jackson's Day," being the date of the battle of New Orleans. When he attained his majority he started west, stopping at Maumee City, where he lived for a little less than eight years, and then purchased land in Swan Creek township and established himself on it. Besides serving as probate judge of the county he was an associate judge under the old Constitution.

Oliver B. Verity was elected in 1857. He was born in Pittstown, Rensselaer county, New York, January 8, 1815. Like his predecessor in the probate judge's office, he may be called a St. Jackson man, having been born on the day and in the year that Andrew Jackson fought and whipped the British at New Orleans. Mr. Verity grew to manhood in his native State, and in 1843 came to Gorham township, Lucas, afterwards Fulton county, Ohio, where he first settled on section nine and later on section sixteen. In the fall of 1857, he was elected to the office of probate judge and moved to Ottokee, then the county seat of Fulton county, on February 17, 1858, and resided there the remainder of his life. While living in Gorham he held the office of township clerk for nine years in succession, and in 1855, was elcted justice of the peace, but resigned that office to accept the office of probate judge. He was three times re-elected to the latter position and served the people of the county in that capacity twelve years, his last term ending February 9, 1870. In the fall of 1852, he was elected land appraiser for the district composed of the townships of Gorham, Chesterfield and Royalton, and made the tour of said townships the following year and reported to the auditor of the county. In 1846, under the old Constitution, and when this territory was a part of Lucas county, he was appointed a sub-school examiner to examine applicants for teaching in Gorham township alone, which position he held until Fulton county was organized. Then unrler the new constitution he was appointed by Samuel Gillis to the office of county school examiner, and served as such until he took his seat as probate judge. In 1870, after retiring from the probate office, he was chosen as assistant marshal for the purpose of taking the census of that year, of Dover, Chesterfield, Royalton and Amboy townships. In April, 1874, he was chosen superintendent of the newly established county infirmary, and held that position until March 1, 1880, and excepting those six years, he held the office of justice of the peace of Dover township from April, 1870, the remainder of his active life. He also served two years as clerk and one as trustee of Dover township. He served six times as juror in the United States District Court, and on April 9, 1861, he was chosen as postmaster at Ottokee and held the office until May, 1885, a trifle over twenty-four years. Mr. Verity was for years recognized as the best equipped man in the county in the matter of facts pertaining to local history, and in the compilation

The judge of probate in 1870-79 was Caleb M. Keith, who was born in Huron county, Ohio, August 11, 1817, and settled in Fulton county, in 1862. He filled the office of justice of the peace, and was elected probate judge in the fall of 1869, which office he held for nine years. He was succeeded by Levi W. Brown, who was bom in Fulton county, in 1841, son of Benjamin Brown, who was a native of the Green Mountain State. He was elected probate judge in 1878, 1881 and 1884. He held the judgeship for three terms and after him Adelbert D. Newell was twice elected, but died before the expiration of his second term, and H. L. Moseley served by appointment for a few months until Thomas F. Ham was elected for the unexpired term, in the fall of 1892. Judge Ham was twice re-elected and served from 1892 to 1900, and the present incumbent, Edward E. Williams, entered upon the duties of the office in February of the latter year.

Clerks Of The Courts

Samuel Durgin, as noted previously, was the first clirk of the court of common pleas in 1850, and continued in the office until January, 1854, when Naman Merrill succeeded him, holding the office until 1861, and Harry B. Bayes was then chpsfen and began a term that continued until 1864. The successors of Durgin, Merrill and Bayes have been the following, all men of ability and prominence: 1863, Samuel Durgin; 1866, Truman H. Brown;

The first executive officer of the courts in Fulton county was George B. Brown, one of the prominent men of thjs section in the early <iays. He settled in Royalton township before the organization of Fulton county, and after serving as the first sheriff and in other positions of trust, he retired to his farm and lived a long and honorable life. The successors to Brown, with the years of their accession to office as near as can be stated with certainty, are as follows: 1851, Charles D. Smith; 1857, Marcus H. Hayes; 1861, Oscar A. Cobb; 1865, Jacob Huffmire; 1869, Joseph H. Brigham; 1873, Sullivan Johnson; 1877, Joseph H. Brigham; 1879, Harvey. L. Aldrich; 1883, Frank T. Blair; 1887, Daniel Dowling; 1889, William J. Connell; 1893, Alfred F. Shaffer; 1897, James L. Shinnabarger; 1901, Henry H. Rittenhouse; 1905, James L. Shinnabarger, present incumbent.

Members Of The Bar

Lucius H. Upham was the first lawyer who permanently established himself in the practice in Fulton county. He located at Delta, immediately following the formation of the county. By the following year, however, Mr. Upham had two associates, in the persons of Amos Hill and Reuben C. Lemmon, and by 1852, Michael Handy and Nathaniel Leggett had been added to the list. It is useless to attempt to give a complete roster of those who have at different times "swung their signs to the breezes" as resident attorneys in Fulton county, but the following is thought to contain the names of the more prominent ones, and the years given represent about the dates of their appearance: 1855, John W.

The foregoing names represent the larger number of those who have practiced law in Fulton county. In addition, however, there have been Richard Patterson, Henry H. McElhiney, John T. Birdseye, William Welker, Ray McConahey, Rezin Franks, Worling B. Leggett, George Denman, George R. Walker, Henry Hogaboam, Edward Tiffany, S. M. Huyck, Warren Upham, Henry Tiffany and Allen G. Carmichael. These have not all engaged actively in the practice but the majority of them have. In 1905, the following resident attorneys have their names printed in the bar docket of the Court of Common Pleas :