The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-01-22

respondent having been examined be-
fore Judge Sprague could be rec1lled
| and that their character was in issue
the same as though they were plain
tiffs in an action of libel or Islander.
and that they might be cross-examined
upon that theory; on the other hand,
this was denied. and it was claimed
that nothing upon the subject of COM
pensation could be received. The Pc
titioners called respondent Dyer and
proceeded to examine him upon the
theory claimed by, them. The exam
liner was without authority conferred
] by the order of reference. We fully
appreciate the embarrassing situation
of the learned examiner and fully affirm
his conduct of the matter before him,
and only rerget that he was not clothed
with authority in the premises. and we
give him that authority. We can sse
no good reason why the petitioners
should not have proceeded with
other testimony, especially in
view of the fact that the rss-
pondents offered to stipulate that the
examiner should have authority to pass
upon all questions of the admissi bility
of testimony and the scope of the in
quiry. It is but fair that a speedy in
vestigation should be had Counsel as
well as receiver are resting under grave
charges. The examination to be had
before the examiner is IN nowise con-
tinuance of the Investigation before
Judge Sprague. We have expressly re-
served that question until after this
Investigation. We have not examined
the matters of thatgreport, and do not
care to until We hear from this invest
igation. If in the end it comes to be
mere question of com putting and estim-
ating the amount of compensation, this
court will proceed to do this upon its
responsibility as guardian of the fund in
controversy, and will seek such in
formation as is necessary for that pur-
pose. On the other hand, if these
charges of fraud are sustained, no in
quiry of that kind will become neces-
ssry, and the bond of this receiver
will stand as indemnity to make good
any loss the fund has sustained thereby.
The examination is to be had under
the order of refence. 1t is the order of
the court which specifies the matters
to be Investigated and confers jurisdic-
ton upon the ex aminer, and points out
the range of inquiry, and the parties
cannot by their allegations and denials,
upon other immaterial matters make
them material. We have examined
with care the supplemental report made
by the examiner, containing detailed
statement of al that TRANSFERRED before
him, and We are satisfied with the rul-
ings he took the responsibility of
.making, as we'll as the action he in
timated he would take If he was him
self hearing the case, and had authority
in the premises.
An order should be ettered referring
it back to the examiner, and the order
should be modified 80 as to provide that
the examiner shall proceed to take tes-
timony furnished by either the petition
ers or the respondents respecting any
aad all allegations of fraud, CORFU tion,
misconduct, fraudulent clsims and
charges for compensation, and unpro-
fessional conduct on the part OF Frank
| II. Dyer as receiver in this case, and of
George s. Peters and Farley u. Will
liams as his attorneys, contained in
said petition; that said Robert Hark-
ness be clothed with all the powers and
| autht or .ty of examiner of this court for
such examination; that he be author
| lied to pass upon and determine all
questions of the admissibiIity of testi-
i mony. the same as though he were being
IItIisd before him, subject, however, to
the right of either party to appeal to
this court by way of exceptions to his
rulings thereon; that either of the
parties interested be authorized to
take subpenas from this court for
Witns sses to appear before SAID
examiner; that said examiner be en-
powered to employ officers, either Fed
Eeral or Territorial, to attend him under
his direction and to fix their compensa-
ton; to employ stenographers. and to
swear witnesses; that such examina-
ton on the part of the petitioners begin
January Oath, 1889, and that they be
given four days IN which to give such
testimony; that the respondents in re-
ply, commence on Tuesday, January
L8 b, 1889, and that they be given four
days, and that two days be given by
the examiner to take rebutting testl-
mony, to be divided between the parties
as the examiner shall direct, and that
said examiner make report of such tes-
timony on or before February 9th, 1889,
and that the hearing upon said report
be set for February 18th, 1889. The
order should further provide that the
examiner may change the above allot-
menta and division of time in any man
ner he may see fit, but only so that the
| final report may be made and filed by
February 9th, 1889.
concur with the Chief Justice in his
opinion just delivered as to the matter
of contempt.
JUDGE FOREMAN.
In my view of this matter, the ques-
tons asked the receiver as witness,
and which he refused to answer, were,
as the examiner ruled, proper and
should have been answered, and this he
should be required to do whether the
amendment of the order, as prayed, be
allowed or disallowed, It is no doubt
true that nothing was intended to be
referred to the examiner except the
charges made in the petition of Messrs.
Bailey, Alff and Millspaugh. But one
of the charges made in that petition
was that the receiver had made an I'M
considerable claim for compensation,
and that being SO, said claim was a
proper, although not the main or most
important, subject of inquiry by the
examiner. 1t would have been mis-
conduct in the receiver to have made
such claim. If read Alright the re-
port of the examiner, his view was that
such matters in the petition as referred
- e