USA > Wisconsin > Milwaukee County > Memoirs of Milwaukee County : from the earliest historical times down to the present, including a genealogical and biographical record of representative families in Milwaukee County, Volume I > Part 56
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waukee in 1846, and continued to practice here until 1859, when, by appointment he served out Byron Paine's term as county judge. Elected in 1861, 1865 and 1869, he died in less than a year after his last election, the cause of his death being a paralytic stroke.
A. C. May was commissioned by Governor Fairchild to serve as county judge for the remainder of the unexpired term, which ended on Jan. 1. 1874. Judge May was born and educated in Vermont and became a resident of Milwaukee in 1853. Prior to his appointment as judge he had not been prominent in legal circles. He was a mod- est gentleman, of refined and cultivated tastes, well instructed in the law, but rather averse to the conflicts in which the active practitioner is forced more or less to engage. At the close of an honorable service of more than three years as a wise and upright judge, he gave place, on Jan. 1, 1874, to Hon. Henry L. Palmer, who had been elected for the full term beginning on that date. Judge Palmer is given a more extended mention in the accompanying biographical volume, and suffice to say here that his judicial career was brief. Though eminently fitted to adorn the bench, the offer of the presidency of the Northwestern Mutual Life Insurance Company opened to him a career of usefulness so much more congenial and attractive that he could not decline it. He resigned the judgeship in February, 1874, after a few weeks' service, and entered upon the duties to which he gave his undivided attention until July 15, 1908, when he voluntarily retired from the position. Again the appointing power was invoked to fill the office of county judge, and in February, 1874, Hon. John E. Mann was named by the governor.
Judge Mann was born in Schoharie county. New York, March 4, 1821. In 1840 he entered the sophomore class in Williams College, but left that institution after remaining there two terms, to enter Union College at Schenectady, N. Y. He was graduated from Union College in 1843, and read law in the office of Jacob Houck, Jr., being admitted to the bar at Utica, N. Y., at the general term of the supreme court, in 1847. He began the practice in Schoharie county, and continued his professional labors there seven years. In the summer of 1854, he came to Wisconsin and located at West Bend, the county seat of Washington county. He remained there in active practice until 1859, when he was elected judge of the Third circuit to fill a vacancy created by the resignation of C. H. Larrabee. In April following he was elected to the circuit judgeship for a full term of six years, and served in that capacity until January, 1867, when he removed to Milwaukee. When Judge Mann became connected with the bar of this city, he formed a partnership with A. F. W. Cotzhausen, which continued until Febru- ary, 1874. At that time he entered upon his duties as county judge,
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to which office he had been appointed by Governor Taylor, to fill the vacancy occasioned by the resignation of Judge Henry L. Palmer. He was subsequently made judge of the county court by election, and by successive re-elections continued to hold the office until his death, which occurred in 1899. The fact that he served the people of Milwaukee county in this judicial capacity for twenty-five years is evidence of his fitness for the place. As judge and as lawyer he always commanded the highest respect and confidence. Calm and deliberate in judgment. conscientious and upright in motive, and faithful in attention to offi- cial duties, he won an enviable place in the regard of his fellow- citizens.
Upon the death of Judge Mann, which occurred on May 1. 1899. it again became necessary for the governor of the state to make an appointment to fill the vacancy. Governor Schofield's choice fell upon James Madison Pereles, who occupied the position until the first Mon- day in June, 1900. At the April election in 1900, Emil Wallber was chosen by the people to serve out the remainder of the unexpired term of Judge Mann. Judge Wallber's term of service was nineteen months. as at the April election of 1901. Paul D. Carpenter was chosen to suc- ceed him. Judge Carpenter was re-elected in 1905, and is now nearing the end of his second term.
By an act of the legislature, approved on Feb. 20, 1907, an addi- tional county judge for all counties having a population of at least 250,000 was authorized, and at the election held on the first Tuesday in April, 1907, John C. Karel was elected to the position. His term of office began on the first Monday in June, 1907, and he is known as the county judge of the second division, Judge Carpenter being designated as the county judge of the first division. All powers, authorities and duties are vested concurrently in them.
SUPERIOR COURT.
The circuit and county courts of Milwaukee county, each having but a single judge, were the only courts of record in the county with civil jurisdiction, until 1888. The circuit court had been relieved of most of its criminal business from and after 1859. but the county court was burdened with all the rapidly increasing probate business of the county. In 1887 it became apparent that the county judge could no longer discharge properly the duties of probate judge and also those of judge of a court for the trial of civil actions. With the growth of population probate business had increased to such an extent as to demand the undivided attention of a competent officer. and al- though a register of probate had been provided for, his powers were
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limited, and he was in effect but a general clerk in the office of the judge. At the legislative session of 1887, an act was passed creating a Superior court for the county of Milwaukee, with a single judge, to be elected for a term of six years and to receive a salary of $5,000, pay- able by the county. The act transferred to this court, from Jan. I, 1888, all actions then pending in the county court and all the powers and duties which that court had exercised in civil actions, leaving to the latter only its probate functions.
At the April election in 1887, George H. Noyes was elected the first judge of this Superior Court. He established a high reputation as a sound, able and upright judge, and so discharged the duties of his office as to win the entire respect and confidence of the bar. In 1890, however, he resigned the position and entered upon active practice as a member of the law firm of Miller, Noyes & Miller. Frank L. Gil- son was appointed his successor.
Judge Gilson was born in Middlefield, Ohio, Oct. 22, 1846. He was educated at Hiram and Oberlin colleges, and after leaving college came to Wisconsin, in 1870. He soon afterward became a student in the law office of Messrs. Frisby & Weil at West Bend, Wis., Judge Frisby, of that firm, being his uncle. In 1872 he was admitted to the bar and began the practice of his profession in Ellsworth, Pierce county. In a comparatively short time he built up a good practice. and in 1874 was elected district attorney of Pierce county. By suc- cessive re-elections he was retained in that office until 1880, and while establishing himself at the bar became prominent also in political cir- cles. He was a delegate to the Republican national convention held in Chicago in 1880, and the same year was elected to membership in the lower branch of the Wisconsin legislature. When the assembly con- vened in January, 1881, he was elected speaker of that body, and pre- sided over its deliberations in such a manner as to win the commenda- tion of its members. In 1882 he removed to Milwaukee and soon be- came prominently identified with the bar of the city, forming a part- nership with his uncle, Judge Frisby, under the firm name of Frisby & Gilson. He became a successful practitioner, being associated later in a professional capacity with Eugene S. Elliott. Upon the resignation of Judge George H. Noyes from the Superior court bench in 1890, Mr. Gilson was appointed to the vacant judgeship by Governor Hoard. He was courteous, impartial, frank in his manner, careful and con- scientious in rendering his judgments, and soon became an exceedingly popular member of the local judiciary. His death, which occurred on June 14, 1892, robbed the bench of Milwaukee county of one who might have become a jurist of signal ability and an ornament to his pro- fession.
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Upon the sudden death of Judge Gilson, the vacancy was filled by the appointment of John C. Ludwig, who was afterward elected to the office for the full term commencing Jan. 1, 1894, re-elected in April, 1899, and served until the Superior court ceased to exist, Jan. 1. 1906. In 1891, the legislature provided for an additional judge of the Supe- rior court to be first elected in April of that year. Robert N. Austin was chosen as such judge.
Judge Austin was born at Carlisle, Schoharie county, N. Y., Aug. 19. 1822, and belonged to a family that was established in America not many years after the landing of the Mayflower. In early infancy he was left an orphan by the death of his father, and when he was five years of age, his mother's circumstances made it necessary for him to seek a home with friends better able than she to care for him. Fond of books and study, he managed, in spite of many difficulties, to obtain the rudiments of an education, and when he was sixteen years old be- gan teaching in the country schools. Although scores of obstacles lay in his pathway he determined to obtain a collegiate education, and by dint of extraordinary effort accomplished his purpose, being gradu- ated at Union College, of Schenectady, N. Y., in 1845. After leaving college he taught school for a time, taking charge of an academy in Cherry Valley, Otsego county, New York. Then entering the law office of Hon. Jabez D. Hammond, of Cherry Valley, he completed the study of law and was admitted to the bar in 1847. Remaining in Cherry Valley only until May, 1848, Judge Austin left there at that time to come to Milwaukee, and his active professional career may be said to have begun in this city. Engaging in general practice he was identified for over forty years with a large proportion of the important litigation which occupied the attention of the courts of this county, and with many notable cases in other courts of the state. in the supreme court and federal courts. As a criminal lawyer he acquired great celebrity during the years of his active practice, and can not be said to have been overmatched by any of the brilliant and able advocates from different portions of the state and from other states as well. against whom he was pitted from time to time in the trial of causes. Devoted to his profession and averse to anything which would divert his attention from his chosen calling, he allowed himself to hold no office other than that of court commissioner until 1890, when, against his protest, he was elected city attorney of Milwaukee. Before his term of office as city attorney expired he was elected judge of the Superior court, and in that position he demonstrated his eminent fitness for the exercise of judicial functions and the discharge of judicial duties. He continued in office throughout one term of six years, and
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at the election on April 6, 1897, George E. Sutherland was chosen to succeed him.
Judge Sutherland was a member of the Milwaukee bar from 1886 until the time of his death in 1899, but before taking up his residence here he had appeared not infrequently in the courts of this city and county, as a practitioner, having been for a dozen years or more promi- nently identified with the bar of a neighboring city. Of Scotch descent, he was born in Otsego county. New York, Sept. 14. 1843, a son of Samuel Sutherland, whose grandfather came to this country to escape the political persecutions to which he had been subjected in his native land. When he was six years of age he was deprived of a permanent home by the death of his mother, and for several years thereafter was cared for, first by one relative and then by another. When he was eleven years of age he went to live with Andrew Sutherland, an older brother, who was then a teacher in the public schools of Nor- wich, Conn. In 1855, he removed with his brother's family to Waukau, Wis., and for the next three years he divided his time between farm labor and attendance at school. Thrown upon his own resources at the age of sixteen years, he went back to New York state, and taught school two winters near his old home, attending West Winfield Aca- demy during the summer months of the same years. He was in New York state when the Civil war began, and in the early fall of 1862 enlisted in Company A, of the First New York light artillery. During this service, and while stationed at Philadelphia young Sutherland embraced an opportunity to attend a military school in that city, and as a result acquired a thorough knowledge of military science and tac- tics. He then appeared before an examining board in Washington and as a result of the examination received a captain's commission, signed by President Lincoln on July 22, 1864. Immediately thereafter he was sent to Kentucky to recruit colored soldiers and assigned to duty as post commander at Eddyville, Ky. He arrived at Eddyville about midnight of Oct. 12. and before he had time to take a survey of the situation the garrison was attacked by the Confederates. After a short but sharp engagement in which Captain Sutherland was severely wounded. the Federal force surrendered. Half dead from his wounds Captain Sutherland was rescued a few hours later by the Federal troops, and carried aboard a Federal gunboat. Sent from there to a hospital at Clarksville. Tenn., his wound, and an attack of typhoid fever, disabled him for three months. After his recovery he served as post commander of Caseyville and also of Owensboro, Ky. For a time he was commissary of subsistence at Smithland, Ky., and served also as a member of the military commission and court martial which
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sat, first at Camp Nelson and later at Lexington. His services com- mended him to his superior officers who recommended him for promo- tion, but the close of the war was at hand. On Nov. 26, 1865, he was mustered out of the service. Returning to Wisconsin, he entered at once upon the work of fitting himself for a professional career by becoming a student in the preparatory department of Ripon College. He completed his sophomore year in that institution, and in the fall of 1868 went to Amherst College. Entering as a member of the junior , class he was graduated at Amherst as one of the "honor men" of the class of 1870. During his summer vacations he studied law with Judge Willard of Utica, N. Y., and after his graduation completed his law studies at Columbia Law School. Soon after his admission to the bar in 1871, he married Miss Adela Merrell of Kirkland, N. Y., a sister of President Merrell of Ripon College, and. established his home in Ripon, where he began the practice of his profession. There he served as city attorney two years, and also as chairman of the county board of supervisors. In 1874 he removed to Fond du Lac, forming a part- nership with David Taylor, which continued until Judge Taylor was made a judge of the supreme court of Wisconsin. He was in active practice in Fond du Lac up to the time of his removal to Milwaukee. and was looked upon as one of the leaders of the bar in that portion of the state. When he came to Milwaukee, in 1886, he formed a partner- ship with Joshua Stark and became identified at once with much of the important litigation in the local courts. That he was a well-sea- soned, capable and resourceful lawyer, soon became apparent to his professional brethren, and his subsequent career at the bar of this city advanced him to a prominent position among the able and successful lawyers of the state. The case of Beam vs. Kimberley. celebrated throughout the state, which was conducted by him to a successful issue in the supreme court, brought to him much more than local renown. and along with other cases of note increased his prestige and widened the circle of his clients. Thorough in the preparation of cases, his abil- ity to take care of the interests of his clients in the trial of causes was no less notable as a feature of his practice. Avoiding entirely what may be termed the pyrotechnics of advocacy, he had a happy faculty of putting himself en rapport with courts and juries, and presenting his arguments in such a way as to make them forceful and effective, and few members of the bar of this city were more universally successful as trial lawyers. An ardent Republican in politics, Mr. Sutherland always interested himself actively in promoting the success of his party, and while residing in Fond du Lac he served with distinction in the state senate and filled the office of postmaster of that city. Judge
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Sutherland died on Sept. 12, 1899. at the Clifton house in Chicago, while on his return to Milwaukee from an European trip. On Sept. 19, 1899, Governor Scofield appointed Orren T. Williams as the suc- cessor of Judge Sutherland, and he continued in office until the first Monday in May, 1903, when the office was abolished as hereinafter explained.
By an act of the legislature, approved on Feb. 16, 1903, the act creating the Superior court in Milwaukee county was repealed, and it was provided that after the first Monday in May, 1903, all actions, causes, pleadings and processes which bore or had an even record num- ber should on the date mentioned be transferred to and become a part of the records and proceedings of the circuit court of the Second ju- dicial circuit ; and that all other actions and proceedings pending in the Superior court should continue and remain in such court, and be subject to the jurisdiction thereof. This had the effect of reducing to one the number of Superior court judges after the first Monday in May, 1903, and no successor, therefore, was elected to Judge Orren T. Williams, whose term expired on that date. It was further provided that upon the expiration of the term of the judge of said Superior court which expired on the first Monday in January, 1906 (John C. Ludwig), the Superior court should cease to exist, and all actions then pending should be transferred to the circuit court of the Second judi- cial circuit.
POLICE AND MUNICIPAL COURTS.
The legal provision for the orderly administration of justice in cases of crime in Milwaukee have been somewhat anomalous from the time of the incorporation of the city. The original charter passed in 1846 provided that the common council should designate one of the justices of the peace elected within the city to be a police justice, and conferred upon such police justice, in addition to the ordinary powers and duties of a justice of the peace, "sole and exclusive jurisdiction to hear all complaints and conduct all examinations and trials in criminal cases within the city." and also "exclusive jurisdiction in all cases in which the city was a party." Other justices in the city were authorized to issue warrants in criminal cases returnable only before the police justice, but without fee. In 1850 an act was passed giving the justice of the peace in the Fifth ward and the police justice concurrent juris- diction of criminal offenses committed within that ward. This act was repealed in 1852 by the new and revised city charter which made the police justice a city officer to be elected annually and gave him exclusive jurisdiction in criminal cases only, within the city, cog-
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nizable before a justice of the peace. The office of police justice was held by Clinton Walworth, one of the pioneer lawyers of 1836, from 1846 until he was superseded in 1859. Mr. Walworth was a native of Otsego county, N. Y., and a nephew of Chancellor Walworth of that state. He came to Milwaukee at the age of twenty-one and identified himself early with its life and interests. His long service as police justice by virtue of repeated annual elections proves the higli esteem in which he was held as a citizen and magistrate.
In 1859 an act was passed by the legislature creating the Munici- pal court of the county of Milwaukee, with jurisdiction concurrent with the Circuit court of the county, "to hear, try and determine all cases of crimes and misdemeanors of whatsoever kind-except such as may be punishable with death or in the state prison for life-that are or may be cognizable before the Circuit court, which may be committed in the county of Milwaukee." This court was also invested with the powers and jurisdiction of the police justice of the city, and that office was abolished upon the election and qualification of the municipal judge. Under this act the Municipal judge was made "chief magistrate of the city of Milwaukee," and the powers of the justice of the peace in un- indictable criminal cases and in prosecutions by the city were vested in him. The same court was make a court of record with power to try in- dictments for all criminal offenses not punishable with death or life im- prisonment, and with exclusive jurisdiction of appeals from justices of the peace of the country in criminal cases. All examinations, recogni- zances and commitments from justices of the peace were to be certified and returned to such court instead of the circuit court. All laws conferring powers and jurisdiction upon circuit courts or the judges thereof, in criminal cases, or regulating the proceedings of such courts or the judges therein, were extended to such Municipal court and its judge, and the judgments of such court were declared to be subject to examination and review by the Supreme court in the same manner and to like extent as the judgments of the circuit courts of the state. In substance and effect, the act gave to one court and one judge, not only all the powers and jurisdiction of the Circuit court in criminal cases-capital cases only excepted-but also the exclusive powers and jurisdiction theretofore exercised by the police justice in the city.
The act creating this court was approved by the governor on March 18, 1859, but is was not officially published until June 29 of the same year. As directed by the terms of the act, the first election of judge and clerk of the court was held on the first Tuesday of April, 1859. Erastus Foote, having been elected judge, proceeded at once to- organize the court, empanel juries, receive and try indictments, sen-
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tence persons convicted, and in short to exercise all the powers con- ferred by the act. About this time, the Supreme court, construing a provision of the state constitution, decided that any act affecting gen- eral public interests, though in terms applying only to a particular county or city, must be deemed a general law in the sense of that pro- vision of the constitution requiring that every general law must be published before it shall take effect. In pursuance of this decision, the validity of the election and the authority of the judge were questioned and soon boldly denied, and proceedings were begun for the discharge of men imprisoned under sentence of the court. The greatest confusion prevailed to the prejudice of criminal justice until Feb. 21, 1860, when the Supreme court, on a quo warranto proceeding prosecuted by the attorney-general, held the election invalid and gave a judgment of ouster against Judge Foote. The Supreme court held, however, that his judicial acts, done after the date of publication of the act creating the court, were valid, as the acts of a de facto judge or court. To meet the emergency the legislature, then in session, promptly passed an act which was approved and published on March 1, 1860, directing that a special election be held on the first Tuesday in April to fill the vacant offices of judge and clerk, and authorizing the governor to fill the vacancies by appointment until the election. James A. Mallory was both appointed and elected judge under this special act, and early in March, 1860, entered upon a period of judicial service which continued without interruption for nearly thirty years.
Erastus Foote was born in Plymouth, Chenango county, N. Y., in 1800. He read law and was admitted to practice in Norwich, a town in the same county. He went first to Indiana, and in 1852 took up his residence in Milwaukee, after residing several years in Walworth county. He formed a partnership with Henry L. Palmer, was city at- torney, was elected police justice over Clinton Walworth, and, as has been shown, was judge of the Municipal court. Judge Walworth became dissatisfied on account of his defeat for police justice and was instrumental in having the new Municipal court created. He stood for election as Judge under the new law, but was beaten by his former rival. Judge Foote was afterward United States court commissioner, for, although a Democrat, he was an admirer of Abraham Lincoln's ad- ministration and a strong Unionist. He died on Feb. 16, 1875.
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