The History of Ann Eliza's Protracted Lawsuit to Recover Her Liberty from the Prophet.
An Interesting Description of Tedious Technicalities and Legal Mis- understandings.
The Trouble with the Judges of the Utah Courts and the Popular Feeling in Regard to Their Acts.
The Pinal Order in the Case Fol- lowed by the Seizure of the Saint's Property,
f Corresponds AN INTERESTING CONTRIBUTION. SALT LAKE, NOV. 5.— Since the divorce case of Ana Eliza Young vs. Brigham Young has become a coupe celebre, a brief review of it will make an Interesting contribution to current history. Seldom has a case In our courts been the subject of greater diversity of opinion, or of so various and in some respects con- tradictory rulings, and it Is believed to have no parallel in regard to the number of judges who have had jurisdiction of it. It is also said to be the rock on which one or two of the Utah justices have foun- dered and lost their hold upon the bench. Though tiie case has been several years before the courts it may still be In Its infancy, the question pending being that of enforcing the original order issued by that famous missionary jurist J. B. McKean, as modified by Chief Justice Schaeffer, for the payment to Ann Eliza of alimony pendente lite. Within a few days the case will reach a new phase in its history, Brigham Young being required to appear on Wednesday next before Chief Justice Schaeffer and show cause why he has not complied with the order of the court.
On the 25th of July, 1873, three enterprising mem- bers of the Salt Lake bar, Messrs. Smith, Tilford, and Hogan, entered in the Third district court the suit of Ann Eliza Young, for a divorce from the bonds of matrimony with Brigham Young, and praying for an allowance of alimony pending the trial of the suit at the rate of $ 1,000 per month, $ 20,000
FOR ATTORNEYS' FEES, and on the decree being granted, the sum of $ 20,000 from the patriarch's estate for her support.
On the 5th of Augast, 1873, Judge Emerson having been assigned to this district on account of the sick- ness of Judge McKean. the defendant's counsel, Messrs. Williams & Young, Hempstead & Kirkpat- rick, made a motion to set aside the service of the bill on The defendant on the ground that it had been made by a person appointed by the chief justice in chambers, who, under the rules of the United States courts, had not the power to make such an appoint- ment In ciiambsrs. Judge Emerson sustained this new motion, and denied a motion to allow the officer to amend his return, and entered an order quashing the service. First blood for Brigham.
A new service was then made, and on the 8th and 9th of August, 1873, Mr. Hempstead argued the case before Judge Emerson on a demurrer to the jurisdic- tion of the court in divorce matters. This was previ- ous to the passage of the Poland bill, which gives the district court of the territory concurrent jurisdiction in divorce cases with the probate courts.
On the 10th of August the question of jurisdiction was argued for the plaintiff by Mr. Tilford and Mr. Kirkpatrick, followed for the defense. In the course of the latter's argument he gave a brief history of the plaintiff, showing that Ann Eliza, before she took the name of Young, was married to a man named Dee, by wnom she had two children. The defendant, Brigham Young, was much her senior, had numerous business matters engrossing his time and attention, and therefore she could not expect much of his time; but he ( the counsel) found by the bill that the honey- moon lasted a wnole year; younger peoDle have had shorter honey- moons. The defendant then moved her to a farm three mile3 from me city, and compelled her to live tbess with her mother two and a half years. She was then brought to the city and located in a com- fortable hom § ; a more comfortable home than nine- tenths of the people of this city enjoyed. If the de- fendant hated her, a3 her bill would indicate, why did he bring her from the farm and
GIYE HER A MANSION CLOSE ' to his own? She left this good home, [ rumor says under the inspiration of one of her counsel who had sustained the relation to her of a boarder— Corres- pondent] sold her furniture at auction, and with her children went to the most extravagant hotel in the west, and now claims that she cannot live for less than $ 1,000 per month.
The judge held the case, but refused to award al- mony until the question of jurisdiction should be de- cided, stating, however, that if the opinion was favor- able to jurisdiction the allowance would date back to the filing of the bill.
On the 22d of August, 1873, Judge Emerson gave a written decision, holding that tne United States dis- trict courts had no original jurisdiction in divorce cases. This was a dismissal of the case and the next day the third district court adjourned sine die.
On May 21,1874, the supreme court of the territory, Chief Justice McKean presiding, and Justice Bora- man delivering the opinion of the court, it was de- cided in the case of Cast vs. Cast that the probate court had no jurisdiction in divorce matters, Justice Emerson dissenting. This decision put the Ann Eliza case again on its feet in the Third district court, and on the 24th of July, 1874, Judge McKean overruled the demurrer of the defendant, who, after the lapse of more than a year from the filing of the bill, was called upon to meet the main issue. _ On Aug. 26,1874, Brigham Young's answer to Ann Eleza's bill was filed. It set forcb, first, that the plaintiff was married in 1863 to James L. Dee, and had not been legally divorced from him on the date of the alleged marriage to the defendant; that Brigham Young was married in Rutland, O., on the 10th day of January, 1831, to Mary Ann Angeli, who was still the lawful wife of the defendant; that on the 6tn day of April, 1868, he and the plaintiff were united in plural or celestial marriage in accordance with the belief of the Latter Day Saints, and in no other sense. He denied all the allegations of the plaintiff as to cruelty and unkind treatment of her, or that he had ever treated her with studied neglect and contempt. She was always provided with good food and clothing, and he visited her as frequently as his duties would permit. As to the demand for alimony, denies that any sum exceeding $ 100 per month would be a reason- able allowance to the plaintiff, even it hs were under any legal obligation to
PROVIDE FOR HER MAINTENANCE and the education of her children. He denied the allegation in the bill that his income was $ 40,000 or more per month, and limited said income to $ 6,000 per month, and set forth that he had a family of 63 persons, all of whom were dependent on him for sup- port.
On Oct. 12 and 13, 1874, the ease was argued before Judge McKean by J. R. McBride for the plaintiff, and by Hempstead for the defendant, and the case was submitted on the 14th, McKean taking the mat- ter under consideration.
A long and dreadful silence now intervened, during which the case was almost forgotten by the public. Tnis was broken on the 25th of February, 1875, when the chief justice delivered his opinion, deciding that Ann Eliza had a standing in court by virtue of the repre- sentation in her bill that she was the wife of Brigham Young; that a marriage ceremony according to the laws of the Mormon church was lawful and valid, provided the parties to the contract were at the time of entering into it legally competent to intermarry; that the defendant, after admitting a certain mar- riage with the plaintiff, could not, under the laws of Utah, plead a previous marriage, which fact, if proven, would be fatal to the application of the plaintiff, yet which must be proven on the trial, and that the court is not permitted to presume what the proofs will be. It was held that the pleadings pre- sented a clear case for the exercise of the authority of the court to award alimony to the plaintiff, and awarded her the sum of $ 50' J per montn, with $ 3,000 as counsel fees. The amount of alimony being Used at one- twelfth of the income of the defendant, a3 ad- mitted In his answer to the plaintiff's bill.
This decision was given notwithstanding the noto- rious fact that Ann Eliza was not a legal wife under any law which Judge McKean or the administration of the government of the United States recognized, and in the face of this judge's frequent judicial dia- tribes against Brigham Young as a . polygamist and a defter of the laws and of recognized good morals. The decision was favorably regarded by
THE FEDERAL RING HERE, but the bar and the peers here and throughout the country held divided opinions upon its merits.
On the 11th of March, 1875, Brigham Young ap- peared in court with his counsel in answer to a war- rant of attachment and an order of court requiring him to show cause why he should not be punished lor contempt for having failed to comnly with the order of court requiring him to pay $ 3,000 as counsel fees to Ann Eliza's lawyers. To this the defendant, through counsel, replied that he believed he was entitled to an appeal from the order and decree of the court, and that such an appeal to the territorial supreme court had been filed in the Third district court, with a suit- able bond to prosecute. He disclaimed all intention to disregard or treat contemptuously the order or pro- cess of the court.
After arguments, an order was made declaring Brigham Young guilty of contempt of court. He was sentenced to pay a line of $ 25, and imprisonment in the penitentiary for one day.
After these proceedings were concluded, Brigham Young's secretary paid to the plaintiff's attorneys the sum of $ 3,000, and on the same day he was taken to the penitentiary and locked up in a cell with a num- ber of convicted criminals and others awaiting trial. During the day he was called upon by a large number of his friends, and at the expiration of the 24 hours he was released. There was a very general expres- sion of belief throughout the community that the sen- tence was a harsh and uncalled for measure, and that Judge McKean acted rather under the inspiration of his prejudices than in a spirit of judicial fairness. A considerable 1 Boiuion gf the public press severely criticised Judsa McKean's course, holding the inevitable moral effect of his decision to be the recognition by the courts of Utah of polygamy through a nine. eenth concuDine on her single plea that she was a legal wife. The enor- mous amount of alimony was also the subject of crit- icism. One journal estimated that upon this basis the total amount which Brigham would have to pay to Ann Eliza and her lawyers should the case be carried through the usual routine to the supreme court of the United States.
THE CHICAGO TIMES, of March 17, referred to these proceedings as follows: " This summary meth- ed of dealing with the prophet looks very much like persecution, and will awaken sympathy for him in- stead of aiding the cause of justice."
On March 16, came the news from Washington that Judge McKean had been removed and Isaac C. Parker, of Missouri, appointed chief justice. The semi- official press dispatch announcing his removal stated that it was brought about by what the presi- dent deemed McKean's fanatical and extreme con- duot and acts, which were considered ill- advised, tyrannical, and in excess of his powers as judge, though the removal was generally attributed to the imprisonment of Brigham Young, it Is but just to say that other incidents of Judge McKean's judicial career doubtless had their effect upon the adminis- tration. Among these may be mentioned THE JUDGE'S LEGAL BOUT with Mr. Whitney, a prominent member of the bar. Just previous to the Imprisonment of Brigham Young, Judge McKean had declared Mr. Whitney in con- tempt on account of some language addressed out of court by the lawyer to the judge, which the latter de- nied disrespectfully. Mr. Whitney had distinguished friends at Washington, who interested themselves In his behalf, and their efforts hastened the decapita- tion. McKean had also made himself notorious by meddling with the press in a dictatorial manner, citing editors before him for contempt, and calling for their indictment by the grand jury. He never lost an opportunity upon the bench to air his preju- dice and display the yindictiveness of his feelings against the Mormons. This removal gave general satisfaction, though some members of the bar at- tempted to procure his reinstatement. Subsequently McKean was admitted to practice at the oar in the court over which he presided, and is still a resi- dent of this city.
Mr. Parker, however, did not accept tee anpoint- ment of chief justice, and David P. Lowe, of Kansas, was appointed to the vacancy.
On the 17th of April, 1875, on motion of Ann Eliza's counsel, Brigham Young was ordered by Chief Jus- tice Lowe to appear before him on the 24th of April, to show cause why he should not be compelled by at- tachment to pay the sum of $ 9,500 accrued alimony, and on the day specified the defendant appeared in court and filed an answer that he had appealed to the suoreme court of the territory from the jurisdiction of the district court. The case wa3 argued and a de- cision reserved by the court.
On the 10 th of May, 1875, Chief Justice Lowe ren- dered his decision, denying the plaintiff's motion for attachment and discharging the rule. The judge held, first, that the court had jurisdiction of the case; second, that no appeal could lie on an interlocutory order, and, third, that the record of the case disclosed the undouoted fact that the alleged marriage was a bigamous or poly- gamous relation, and it is not, in the judgment of the court, according to the principles of equity and good conscience to enforce ihe payment of ad interim alimony, which would '• bestow the apparent, if not indeed the real, sanction of the law upon a practice which is hostile to the civilization of the age, and wnich the penal statutes of the land visit with condign punishment."
THIS DECISION brought upon Judge Lowe the denunciations of the McKean ring, and the rabid anti- Mormon press. Whether the judge wilted under this shower of abuse was never definitely known. He returned to Kansas' and on the 17th of August his resignation was an- nounced.
In September, 1875, Alexander White, of Alabama, was appointed chief justice, and pending his arrival here on the 17th of September, Gov. Emerv assigned Judge Boreman of tne First district court to the Third judicial district. Here was a fresh opportunity for Ann Eliza's lawyers, which they hastened to avail themselves of. Judge Boreman had sustained Judge McKean's position throughout in this case, and had, if possible, out- McKeaned him in his anti- Mor- mon prejudices and spits. On the 13th of Oetobsr, 1875, on application of plaintiff's counsel, Judge Bore- man issued an oruer requiring the defendant to ap- pear before him on the 23d of October and shew cause why he should not be punished for contempt for refusing to comply with the original alimony order of McKean.
.. On the 23d of October counsel for defendant plead- ed before Boreman Chief Justice Lowe's decision, which, it was held, overruled McKean's order and discnarged the defendant, purged of the contempt with which he is now charged. After lengthy argu- ments Judg8 Boreman reserved his decision until the 29th of Oetobsr, when he said the defendant would be expected in court in person.
On the 29th of Octooer, defendant being confined to his house by sickness, Judge Boreman de- cided McKean's original alimony order lawful and still binding, and Judge Lowe's decision without au- thority of law. He therefore issued an order that the defendant be imprisoned foj contempt of court until the accrued alimony, amounting to $ 9,500, and the costs of this suit arc paid, or until he be released by the court, subsequently the United States mar- shal repaired, with a " Gentile" physician, to the residence of Brigham Young, - when it WSs decided that ho could not be removed without danger to his life. Two deputy marshals were thereupon stationed at his house to keep guard upon a man who could not even rise from his bed without assistance.
On Nov. 1 Chief Justice White arrived in Salt Lake City, and assumed charge of this judicial district, Brigham Young remained
UNDER CHARSE OF THE MARSEAL at his own house until the 18th of tho month, when hs was brought into court on a writ of habeas corpus, issued by Chief Justice White, who released the de- fendant, holding that Chief Justice Lowe's order of the previous May was final and conclusive upon the question of the right of the plaintiff to a commitment of the defendant for a contempt of court, and that upon the adjournment of ihat teim of court it be- came res adjudicata, beyond me power of the district court. Therefore the order of Judge Boreman, of the 29ih of October, 1875, was void, ana the petitioner was wrongfully imprisoned and should be discharged. Early in the year 1876, Chief Justice White was called to Washington as a witness in the case of senator Spencer, of Alabama, elected by a fraudulent legis- lature. The chief justice had net been confirmed by the senate, and failed to reach that point. His face was never again seen in Utah. He was highly es- teemed by the bar as a lawyer and a judge, and his early departure regretted.
The next for: uaats or unfortunate chief justice of Utah was Michaei Schaeffer, of Illinois, wiio arrive! here in the month of April, and still commands the judicial situation. Early in July the old case of Young V3. Young made its appearance again. This time in shape of a motion catling upon Brigham to show causs why he should not be punished for contempt. This motion was argued and overruled by the court; also a motion to strike from the files she amendea answer of the defendant was overruled.
On the 22d of July the plaintiff's counsel moved for an order directing that an execution issue to enforce the judgment of alimony heretofore granted to the plaintiff against the defendant, who was ordered to appear on the 28th day of July and show cause why the motion should not be granted. On the day speci- fied the motion was argued, and the case taken under advisement by ihe court.
On the 31st of July Judge Schaeffer held that the McKean order for alimony was legal, but the amount was exorbitant, and that the prooer way to raise the money was by an execution issued against
THE PROPERTY OF DEFENDANT. He reduced the amount of allowance from $ 500 a month to $ 100 a month, which was ordered to be paid within 30 days or an execution would be Issued.
The time having elapsed without payment, the court, on t he 2d of September, ordered that an execu- tion issue for the amount of the award against the propeity of the defendant, and on the same afternoon United States Marshal Nelson levied upon the con- tents of one of the defendant's stables, including several horses, mules, cow3, and carriages, giving notice that the sale of the property would take place on the 11th inst.
Before the day of sale the marshal, being threat- ened with a suit for the recovery of tne property by the defendant, demanded an indemnity bond of plaintiff's counsel, against any damages which a -' at result from the suit. The counsel refused to comply with this demand, and the question as to the right of the marshal to demand it wa3 submitted to the court. Judge Schaeffer decided that the marshal was entitled to a bond of indemnification, and ordered that unless it was given the marshal would release the property and return the execution unsatisfied. This was done and the execution dismissed.
On Saturday, Oct. 14,1876, on motion of the plain- tiff's counsel, Judge Schaeffer made the following or- der, after hearing the arguments of counsel:
That tno defendant, Brigham Young, pay to the plain- tiff, or her attorneys, for her use ana maintenance, the sum ol $ 3,600, with interest at the rate of 10 per cent, par annum from the 2Sth day of July, 1876, and the fur- ther sum or | 200, being the amount due up to the 29th day of September, 1876, for maintenance of plaintiff, as aforesaid, and the costs, to wit: Sill 80, as hereinbefore taxed, within ten days from the service of a copy oi this ordyr upon him.
It is further ordered that unless the defendant comply with this order by payment as aforesaid, within ten days from the service of a copy as herein provided lor, that the clerit issue an attachment for His parson, in the usual form, to bring the defendant into court, to answer as for contempt. _ t
In making this order Judge Schaeffer said that he had been willing to try miia measures before resort- ing to harsh means for carrying out the orders of the court; but if straws would nos avail he would try what virtue there was hi stones.
The late proceedings of the trial and the seizure and sale of Brigham's personal property are familiar to all readers of THE TIMES.
