| Show CHURCH PROPERTY DISPUTE in the matter of the united states of america plaintiff vs va the late corporation of the church of jesus christ of latter day saints et al defendants the following brief of counsel arthur brown and sutherland aud and judd for receiver dyer upon his hie exceptions to the report of examiner stone was filed with the clerk of the supreme courton saturday jan 24 in presenting our remarks upon the exceptions heretofore filed by us ns for the receiver we beg leave to say ay that the ground contained in this investigation has been goue gone over for the second time as thoroughly as ful fully V and it woul would seem a as s often as occasion requires the examiner colonel stone in his report finds in so many words after taking a mass of test testimony mon y of over pages that the report made by examiner harkness upon the former investigation covering the same ground was a correct report sustained by the proof and not only so bul bu sustained by the proof taken before stone as well as that theretofore taken by harkness he finds in substance that the receiver in the execution of his trust has in all things been diligent ent careful prudent and businesslike business like rat that the A property has suffered no loss lose by reason 0 ciany any negligence or want of care on his part and that he has made no expenditures tures whatever except such as asare are reasonable to have been made with the very small exception to be hereafter named so far as our 2nd and ard and ath exceptions are concerned it is probably sufficient to say that they were put in pro forma that really the truth is the examiner has found either in exact language or in substance as requested to do the ath exception is taken to the second finding of the commissioner which is to the effect that although mr dyer doerthe Dy erthe the receiver in pursuance of the direct directions direction in of this court employed competent counsel to attend to the legal business given him in charge never nevertheless since by inadvertence or mistake a decree seems to have crept into the record in one case which to say the least of it is of doubtful effect that the receiver himself ought to be liable for the value of the lot to wit 40 if by reason thereof any loss z should efm result to the government in view of this record I 1 and of the proof contained in it this finding of the examiner is simply absurd if the court will take the pains to examine the proof of parley L williams in the record record of evidence reported by commissioner stone at pages to and also the evidence of legrande young at pages to inclusive it will be found that so go far as the question is concerned of this rods of land concerning which the examiner makes his second finding there can be no reasonable doubt that the decree if it has any binding force at all in law which as aforesaid may be doubted was the result of inadvertence aversi oversight ht or mistake one or both and that kinyon kind of oversight and mistake too for which the receiver is ia in no wise responsible an I 1 which can be easily corrected the te proof abundantly shows that the receiver employed parley L williams as his principal counsel and that mr williams was thoroughly competent as a lawyer to take charge of and manage the business of said receiver his ability is not only testified to by the leading members of the bar but is ia known to members of this court and is a thing of which they will take judicial knowledge he entrusted the business to mr williams and had the right to entrust it to him and supposed of course and had a right to suppose that mr willi williams s would attend 10 it properly and A nd if there is any fault which is not admitted it is the fault of the counsel and a fault too that the counsel alone would be responsible for if there was any responsibility attached to anybody but we may remark in leaving this subject that the proof further shows that there never was a possibility of the government vern ment of the united states recovering this property the proof of le grande young of F S richards of robert T burton of john R winder all goes to show that the church never received one dollar for this property in any way and that it absolutely upon compromise refused to pay one dollar on its account and that that is the reason why it was excepted out of the terms of the compromise that was made for the other real estate that waa attacked in the case mentioned and sought to be recovered the idea of making under the facts of this case this receiver responsible for that piece of property is an idea so absurd that it blunts common sense and no court fr f r a moment would stultify itself by rendering any such decree and with these remarks we propose to lea leave veil it we are now come to address ourselves to the sixth exception which is to this effect because the commissioner in his ath finding of fa t at pages 14 and 15 finds that the receiver should not be credited with the 1550 clerk hire being per month from march 1st ast 1889 to june lat 1890 paid to james jam es moffatt moitt the proof of mr dyer contained in the record at pages to and of henry W lawrence at pages to inclusive ve in our opinion fully demonstrates the justice of this charge the idea of commissioner stone seemed to be that a man who could give a bond for and take charge of and manage a property of this kind worth from to ought 0 ht to sit himself down in his office ce and nao do clerical work that was worth per month otherwise he was not entitled to recover anything at all for his services that mr dyers services in this behalf and his right to have a clerk and bookkeeper is to depend upon the more mere amount of minutes hours or days devoted to the business by manual labor of course no such idea as that was in the mind of the court when the receiver was appointed and no such idea could possibly be enforced it is but just to say that while as the proof shows both of mr dyer and of henry H enry W lawrence that it was not necessary to have a clerk at this business for every hour in the day and probably not every day in the week nevertheless it was necessary to have a co competent in detent X bookkeeper and clerk to do the clerical cical work necessary to such a trust and as MrIA mr lawrence wrence puts it indis in testimony SAVO you u ar are compelled e lied to have the man on und hand all age the time in order to have him when you do need him ft not oni only djou that at you must have EL a man familiar familiar with the work familiar with he property familiar with its ita management and in order to do that you must have a man who is at all times achand at hand the idea that a man is to be paid in the handling of such a trust as that by the were mere amount of clerical duty th that at he pe performs or the idea that a man who is is eatable capable of handling such a t trust st a and n w who 0 has haa a sufficient standing in th the community m to give such a bond shall sit himself down in his office and devote himself to purely clerical labor is one we beg to sug suggest jest that must have been born bom iq in the mind of the commissioner this investigation which has again served as another and further vindication of the acts of the receiver has cost and will cost the fund at least 2000 if not over and in all this to save 1550 of clerk hire we submit to the court in all earnestness nest ness that the position of the examiner is in not in the least du stained by the proof and the exception ought to be sustained |
