and payment within six months from date of filing. They may, however, make proof and payment in less than six months after filing, on showing the necessary qualifications as a pre-emptor, and that they have made an actual bona fide settlement on the land. It must also appear that the land is taken for the home of the entryman. R. H. Smith, 11 L. D., 268; Finan v. Meeker, idem., 319. It follows also that it must be his home to the exclusion of a home elsewhere.

The hearing in this case was largely directed to the issue as to whether the entryman had maintained a continuous residence, after settlement. Had the filing been on lands subject to the general preemption laws, it is doubtful whether the residence would have been sufficient in point of duration. But, since the only question involved is, whether the entryman is "an actual settler" (United States v. Woodbury et al., 5 L. D., 303), and since the evidence on that point is conflicting, and since the register and receiver twice found that issue in favor of the entryman, and that finding was sustained in your said office decision, I do not, on the record before me, feel justified in disturbing the judgment appealed from, which is accordingly affirmed. Chichester v. Allen, 9 L. D., 302; Scott v. King, idem., 299.

PRACTICE-DEATH OF DEFENDANT-APPEARANCE-EVIDENCE.

SMITH v. WASHBURN.

On the death of the entryman and substitution of his widow as defendant she is entitled to notice, and must be brought into court either through process of law, or voluntary appearance.

An appearance entered in general terms, and without words of limitation, or expression of intention to dispute the jurisdiction of the local office, cannot be qualified in its effect by the subsequent allegation that it was for a special purpose.

It is within the discretionary authority of the local office to allow the introduction of additional testimony by the contestant, after the evidence for the claimant has been submitted.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 5, 1891.

On March 24, 1883, John E. Washburn made homestead entry No. 5140 for the NE. SE. and W. SE. 4, Sec. 28, and the NW. NE. 4, Sec. 33, T. 5 N., R. 70 W., Denver Colorado. July 24, 1886, John R. Smith filed an affidavit of contest against said entry, charging abandon

ment.

Notice issued the same day, summoning the defendant to appear and answer to said charge at the office of the register and receiver in Denver, on the 28th day of August, 1886. The return on the said notice is as follows:

John R. Smith, being duly sworn, upon his oath says that he served the notice of which the within is a true copy on the 25th day of July A. D. 1886, by delivering to

Mrs. Washburn, a member of the family of the within named John E. Washburn, over the age of fourteen years, a true copy of said notice at the usual place of abode of said John E. Washburn in Boulder county, Colorado, and that the said Mrs. Washburn at the time of the delivering of said notice represented that the said John E. Washburn was ill and requested that said notice should be delivered to her.

JOHN R. SMITH.

Sworn to and subscribed before me this 28th day of August A. D. 1896.

J. M. ELLIS.

Receiver.

On the 15th of August, before the day set for the hearing, Washburn, the defendant, died. On the 28th, the day of hearing, the record shows the following proceedings:

Proof of service of notice of hearing made and filed. And thereupon contestant by his attorney suggests the death of claimant after service of notice, and asks that the action proceed against Albina Washburn, his widow.

And thereupon come B. L. Carr, F. P. Secor and Daniel Witter, attorneys at law, and enter their written appearance as attorneys in this cause for Albina Washburn, widow of Joln E. Washburn.

And thereupon comes the said Albina Washburn by her attorneys and files her written motion to dismiss said contest for the reasons stated therein.

And thereupon the said motion coming on to be heard before the register and receiver and argument of counsel being heard and it appearing to the register and receiver that the said Albina Washburn had prior to the filing of said motion to dismiss entered her general appearance in said cause by her attorneys, and it being within the personal knowledge of the receiver that F. P. Secor, one of the attorneys of said claimant, had in her presence and in the presence of the receiver and of the attorneys for contestant, stated that there was no doubt that John E. Washburn had in his lifetime and on the day mentioned, and in the manner mentioned by contestant in his affidavit to the service of such notice, received said notice, and the said attorney having then in the presence of the receiver, and prior to the filing of said motion to dismiss, verbally waved the rights of his client on account of any defect in the proof of service by contestant, and having stated that no objection would be taken on account thereof, and the said Albina Washburn having at the same time admitted that she had received the notice from the contestant on the date and in the manner stated by him, and having further stated that she had immediately on receiving it handed it to her husband, John E. Washburn, the said motion is overruled, with leave nevertheless to claimant to apply for a continuance. To which action of the register and receiver in refusing to dismiss said contest claimant by her attorneys objects and excepts. And thereupon the claimant declining to apply for a continuance of this cause, the parties respectively announce themselves ready for the hearing thereof, and contestant to support the issues in his own behalf is sworn, etc.

The written appearance of the attorneys referred to in the foregoing is in this language:

John R. Smith

v8.

John E. Washburn.

Before the Register and Receiver

of the U. S. Land Office at
Denver, Colorado.

Involving title to H. 5140 of said Washburn for (here follows description of land). We hereby enter our appearance as attorneys in the above entitled cause for Albina Washburn, widow of J. E. Washburn.

B. L CARR & F. P. SECOR,

and DANIEL WITTER.

The reasons stated in the motion to dismiss are

1st. Because the notice was not served in accordance with Practice Rule No. niue. 2d. Because John E. Washburn, the claimant, died between the date of the affidavit of contest and the day of trial.

The examination of the witnesses was proceeded with until and including the 1st day of September, when by agreement of all parties the hearing was continued until the 9th day of the same month. On said day contestant filed a motion, supported by his affidavit and that of his attorney, to be allowed to "offer further testimony by 10 o'clock on the 10th September, 1886, as to the residence of claimant, three quarters of a mile south of Loveland."

The contestant's affidavit in support of this motion was to the effect that at the commencement of the hearing he had been informed that he ought to have brought witnesses, showing that claimant had maintained his residence at a place other than on the homestead; that before the trial he had supposed that he had only to bring witnesses residing in the neighborhood of the land in dispute to show lack of residence thereon by claimant.

The affidavit of the attorney was corroborative of that of contestant. The motion was allowed, and after the conclusion of the testimony on the part of claimant the contestant introduced one Seaman, whose evidence tended to show the residence of claimant on his farm south of Loveland ten miles from the land in dispute.

After the hearing the register and receiver rendered their decision recommending that the entry be canceled.

Mrs. Washburn appealed, and on November 20, 1888, your office reversed the decision of the local officers, upon the ground of the illegality of the service of notice on Washburn in his lifetime, and remanded the case for a rehearing, with notice to the widow.

Contestant filed a motion for a review of this decision of your office, and upon a further and more careful inspection of the record of your office sustained said motion, recalled the order for a rehearing, and on the evidence submitted affirmed the decision of the register and receiver, and held the entry for cancellation. This decision of your office was rendered May 2, 1889, and it is from this decision that Mrs. Washburn, widow of claimant, now appeals, claiming that the register and receiver obtained no jurisdiction of the person of defendant Washburn in his lifetime by reason of the alleged defective service of notice, and that there was no service of notice on the widow, nor appearance by her to the action, and also that it was error to allow the contestant's motion for the additional testimony of Seaman; also that the evidence did not justify the cancellation of the entry.

On the death of the claimant, the widow, at the suggestion of the entryman being substituted as defendant, was entitled to notice. She is the party in interest, and to obtain jurisdiction, must be brought into court, either through process of law or by her voluntary appearance.

And this must be done whether her husband in his lifetime was properly served with notice or not. It is, therefore, in my opinion, unnecessary to discuss the legality of the service on him.

Then the only jurisdictional question is, was the widow of claimant properly before the register and receiver? The record shows that on the day fixed for the hearing (28th of August), the contestant suggested the death of John E. Washburn and asked that the action be revived in the name of his widow.

Thereupon she, by her attorneys, enters a general appearance in the case, as heretofore noted, and immediately files a motion to dismiss the action for want of legal service upon Washburn. This motion comes too late.

It will be observed that their appearance for Albina Washburn contains no words of limitation, nor discloses any design to dispute the jurisdiction of the register and receiver. There is no claim upon her part that these attorneys had no authority to represent her, and they will not, after having entered a general appearance of this character, be heard to qualify the same on this showing. To hold that this was an appearance of her attorneys for some ulterior purpose, and not a general appearance by her, would be to stultify the record.

The only remaining question is, was it reversible error for the local officers, after the defendant had rested her case, to allow the contestant to introduce the witness, Seaman, to prove the residence of the claimant elsewhere than on the homestead in dispute? I do not think so. In the interest of substantial justice, as much discretion should be allowed the local officers in the introduction of testimony on trials before them, as is given nisi prius courts, and no one will contend that such tribunals can not exercise the discretion that was used in this case. Besides no showing is attempted to be made that Mrs. Washburn was prejudiced by such action. To my mind, this objection is more technical than substantial, and will not warrant a reversal of the judgment.

The evidence abundantly shows that the defendant in his lifetime. never established a bona fide residence on the land, but used it as headquarters for a dairy and stock ranch while his actual residence was ten miles distant. The widow, though present at the trial, refused to testify in the case, though called upon by the plaintiff in his own behalf. From a careful examination of the record, I find no reason for disturb ing your judgment, and it is therefore affirmed.

17581-VOL 12-2

RAILROAD INDEMNITY SELECTION-PRE-EMPTION CLAIM.

SOUTHERN PACIFIC R. R. Co. v. FLIPPEN.

A pre-emption filing should not be received for land involved in a rejected railroad selection pending on appeal; nor should any action be taken with reference to land in such status without special notice to the company.

Where a filing has been allowed for land thus reserved, and final proof submitted thereon, the filing and proof should be suspended until final disposition of the pending appeal, and the pre-emptor allowed to intervene under the rules of practice.

Secretary Noble to the Commissioner of the General Land Office, January 5, 1891.

I have considered the case of the Southern Pacific Railroad Company v. Nancy A. Flippen, as presented by the appeal of the former from the decision of your office dated May 27, 1889, rejecting its claim for the S.

of the SW. of Sec. 15, T. 25 S., R. 30 E., M. D. M., Visalia, California, and allowing Nancy A. Flippen to pre-empt said tract, with others in the even sections, upon which, in her declaratory statement, she alleged settlement January 1, 1886.

Said decision states that "the tract in the odd-numbered section is within the restored indemnity limits of the Southern Pacific Railroad Company's grant under the act of July 27, 1866" (14 Stat., 292); that said company, on December 9, 1885, filed list No. 23 of indemnity selec tions embracing the tract in controversy, which was rejected by the local officers "for non-compliance with the rules relating thereto," and an appeal taken from their action to your office; that Mrs. Flippen, after notice by publication, made final proof, which shows that she settled on her claim in January, 1885, and resided thereon continuously up to October 4, 1886, cultivating and improving the same; and that upon the decision of the local officers that she should be allowed to perfect her claim, the company duly appealed.

Your office decided that Mrs. Flippen was an actual settler residing upon the land when the company applied to select the same; that her improvements were such an appropriation of the land as would defeat the company's right of selection, and accordingly affirmed the action of the local office.

The company insists in its appeal that, at the date when Mrs. Flippen alleged settlement on said tract, and long prior thereto, the land was reserved from settlement and entry by the withdrawal of October 27, 1874; that the company's said application to select said tract had the effect of an entry, and, while the appeal was pending, said land was not subject to pre-emption settlement and entry; that the company having a selection of record was entitled to special notice when the pre-emptor proposed to offer her final proof.

It is quite evident, under the rulings of the Department, that the pre