Walworth County, Wisconsin - Chapter 9: The Bench and Bar, 1912

Chapter 9: The Bench and Bar

It may never be known how President Jackson and the consenting Senate induced Hon. David Irvin to leave forever behind him the elegancies of a Virginia gentleman's home and drop to the semi-barbarous fare and informal manners of primitive western hotels ; to exchange his brilliant prospects of professional or political promotion for the dull routine of frontier courts. It is only certain that he accepted the territorial judgeship for Wisconsin, and that late in April, 1839. he dismounted his horse (not improbably at Hollis Latham's hospitable mansion), placed his gun in temporary safety, and soon afterwards, with his dog, found his way to the county building, north of the park and at or near the northeast corner of Court and Broad streets. Here, with Sheriff Walling's help, he opened in due legal form the first court term for Walworth count}-. The clerk's journal tells the day's story best :

"At a term of the District-Court of Walworth County, begun and held at Elkhorn on Monday the twenty-second day of April, 1839; present the Honorable David Irvin. Judge of said Court:

"Ordered, that LeGrand Rockwell be appointed clerk of the District Court for the County of Walworth. Whereupon the said Rockwell entered into Bonds in the penal sum of two thousand dollars, conditioned as the Lawdirects, with Othni Beardsley and William Bowman, his securities, and took the Oath of Office as prescribed by law.

"Ordered that Charles M. Baker be admitted as an Attorney and Counsellor at Law to appear and practice in this and other Courts of Record within this' Territory, it appearing to the Court thai he i> entitled so to do. Whereupon said Baker took the oath of office.''

"And now comes the plaintiff by Horatio X. Wells, [of Milwaukee] his attorney and moves the Court here for leave to tile a declaration in said Cause. Whereupon it is ordered that said leave be given and that said dec- laration be filed within thirty days hereafter and all other pleadings thereafter within twenty days successively until issue and the cause be continued generally."

"On motion of Moses M. Strong [of Mineral Point], attorney for the Appellant, ordered that a rule be entered that Benjamin Ball Esq., Justice of the Peace before whom the above entitled cause was tried, make due return of the proceedings in the said cause and that an attachment be granted to ci niipel the same.

At the October term a jury was called in the case of McKaig vs. Williams, and the trial resulted in a verdict for the defendant. The jurors were John S. Boyd, John Byrd, William Carter, Thomas Gates, Alonzo Crow. Cyrus Horton, George W. Kendall (foreman). Abel Neff. Soldatl I'owcrs. David Pratt. Morris Ross, and William Stork. The other jurors drawn for the term were William Bohall, Isaac Burs. .11, Perkins S. Child, David S. | ing. Thomas Fellows, Solomon Finch. Daniel G. Foster. Daniel llartwell. Loren K. Jones. Thomas W. Miller, Austin .McCracken. Marcus Mouta g Benjamin C. Pearce, Horace Smith. Nelson Spoor, Ebenezer Tupper, Elijah \\'< 'rthington.

The grand jurors at this term were Joseph Marker. Asa Blood, Deodal Brewster, Alexander H. Bunnell. Jacob Burgit, Richard Chenery, George Clark. Christopher Douglass. Norman C. Dyer, Charles M. Goodsell, Morris F. Hawes, Mason Dicks. Willard I'.. Johnson, John Lippit, James Maxwell (foreman), Urban D. Meacham. Amos Older, Samuel F. Phoenix, Samuel Prince. John Reader. Jacob ' i. Sanders. ||, Smith Young, Robert Young. William P.. Lewis was indicted for larceny am i Reub trandei ; jury. The case against Lewis was dismissed \ nolle prosequi was entered in the case against Ostrander, it having been shown that Squire McKaig, who had committed him for trial, was a but half-naturalized citizen. The lot term of the territorial court opened May 22, [848, and adjourned without .-, day June 3d. Beyond the short roll of attorneys adn 1 Wisconsin

Roll Of Attorneys, 1 839- 1 848

One case in this court was made widely famous, for the period of a half generation of men, from the humorous account of it given by Andrew E. Elmore, long known as the Sage of Mukwonago, in a speech (as member of Assembly) at the legislative session of 1859 or i860, in support of a bill for abolishing all laws for collection of debts. From the sale of a yoke of oxen, somewhere in Jefferson county, grew a suit which, by new trials, changes of venue, and other useful devices, was prolonged until the costs amounted to more than the price of many yoked or unyoked oxen. Mr. Elmore was of the counsel in this cause when one of its changes of venue brought it to Elkhorn. He explained to his fellow legislators that he had learned from observation or information that if one would win his cause in Judge Irvin's court he must go hunting with His Honor, praise '"York," His Honor's horse, regardless of truth or likelihood, or feed and fondle "Pedro," His Honor's dog. Mr. Elmore made "Pedro" think him a true friend, and so far prospered in court as to obtain a favorable ruling on his motion for a new trial of the cattle case. As the Judge gave his instruction to the clerk, "Pedro" made awkwardly fn-c with his new friend, who, a little annoyed, gave the brute a kick. The Judge saw the action and heard the yelp for redress. Before the clerk had begun to enter the ruling just made the Judge reversed it. "Mr. Speaker, that kick cost me live hundred dollars!" This speech was published in most of the newspapers of America and of Great Britain and her colonies, and was included in various selections for the use of young elocutionists. The fame thus accruing to Mr. Elmore was not boughl much too dearly at its cost to him.

"At a term of the Circuit Court in and for the County of Walworth begun and held at the Court House in Elkhorn on the first Monday, the second day of October, A. D. 1848. Present the Hon. Edward V. Whiton, judge of said Court." So begins Air. Clerk's journal. The first cause called for trial was that of Edwin Hodges vs. Henry Bradley et al. ; George Gale for the defense. The case was continued at defendant's cost. The grand jurors were Oramel Armstrong, Robert Augier, John A. Baird, Leander Birge, Deodat Brewster, George Dann, Jared Fox. Lewis B. Goodsell, llcnn II. Hartson, Elias Hibbard (foreman), Linus Merrill, Zenas Ogden, Isaac Raymond, Moses Seymour, Sewall Smith. Henry J. Starin, Jeremiah Wilcox. The names of men who attended court and drew pay and mileage as petit jurors were: Calvin M. Ashley, John W. Boyd, Jesse Brown, Alonzo A. Bryant, William Burgit, Joseph N. Cahoon, Cyrus Church, John DeGarmo, William DeWolf, George W. Dorrance. Charles Garfield, Samuel Gregory, Jacob R. Kling, Ansel Knowles, John Mereness, Silas Patten, Robert K. Potter, Martin O. Pulver, John Raleigh, Sherman M. Rockwood, Isaac Searl, George Sewell, George W. Sturges, Augustus Taintor, Isaac White, Anderson Whiting, Robert J. Wood.

June, 1853. Mr. Spooner was appointed by Governor Farwell and held one term of court in this county. At the November election of thai year to till the vacancy for the remainder of the term of office, Mr. Spooner was feated by Mr. Doolittle, whose service began in the following January, In

1856. after holding the January term of court. Judge Doolittle resigned and earlv in March Governor Barstow appointed Mr. Baker, who held the April court term for Racine county. March 25th a Republican convention for the circuit, at Delavan, on its ninth ballot, named John M. Keep, of Beloit, who was elected in April and presided at the May term of court. He resigned in May, 1858, and David Noggle was first appointed and then elected. Judge Lyon was transferred to the supreme bench, January, 1871. Mr. Harkness resigned in March, 1875, and went for his health to Salt Lake City. Judge Paine never presided at Elkhorn, but held spring terms at Kenosha and Racine. Mr. Wentworth passed up from the circuit clerk's desk to the bench, and soon after his election became a citizen of Racine. After 1884 he became police judge at that city and died February 7, 1893. Judge Fish resigned, went to Texas, returned and died in a sanitarium at Stevens Point. Tanuarv 10, 1908. Judge Lyon, now nearly blind, but otherwise in fair health, lives near San Francisco. Judge Harkness is living, and Judge Winslow is on duty as chief justice of the Wisconsin supreme court.

Roll Of Attorneys From 1848

Philip V. Coon. 1868, William E. Sheffield, 1862, and Stephen S. Sibley, 1856, are not now assignable to any town. There are about fifty names recorded of men who are not known to have lived in the county, or, such as did live here went elsewhere to find practice. None of these arc now of the Walworth bar. nor are there many here named who yel abide with us. Most of the dates wanting are likeliest to be recorded in other counties, of this or other states. It may be that none but a non-resident lawyer could grade justly these learne«l gentlemen, or place them in order of their professional worth: but it may be permissible to name some of those who have died or are now far away, to whom contemporary judgment accorded sonic qualities of leadership at the bar of the circuit. Among these, then, were Messrs. Babcock, Baker, Barlow. A. H. Barnes, Estabrook, Fish, Gale, Harkm Kellam, McHugh, Meacham, Menzie, Murphey. Sanborn, James Simmons, H. F. Smith. Wvman Spooner, C. B. Sumner, Thomas, Wakeley, Week-. II S. Winsor.

The last grand juror li-t was made b) the county board in [872 for the following vear's service, but the judge may make ami tile an order for summoning a grand jury under statutory provisions. In [897 it became a judicial function to appoint a commission of three members for the duty of selecting and reporting a list of citizens for service as petit juroi 5. I me member is pointed each year and serves three years. Thus far five men have performed this service: Mortimer T. Park, of Elkhorn, 1897-9; John E. Menzie, Lagrange, 1897-1911 ; John W. Brownson, Sharon, 1897-1912; George R. Allen, Bloomfield. 1899-1901 ; John G. Meadows, Lyons, 1901-13.