RUTH MCNICKLE.

Motion for review of departmental decision rendered November 1, 1890, 11 L. D., 422, denied by Secretary Noble, January 13, 1891.

PRACTICE-NOTICE OF CONTEST-DEFECTIVE SERVICE.

MORGAN v. RILEY.

Service of notice is fatally defective where the purported copy of the original notice, delivered to the defendant, does not show the true date of hearing as fixed in the original notice.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 12, 1891.

In the appeal of Morgan from your office decision of March 1, 1889, in the case of George W. Morgan v. West Riley, the following facts appear of record:

November 12, 1883, said Riley made timber culture entry for the N. NW., Sec. 35, T. 4 N., R. 19 W, S. B. M., Los Angeles, California. Morgan filed an affidavit of contest against the same, August 27, 1888. On the same day notice issued, summoning the claimant to appear at the local office on December 22, 1888, to respond to the allegations charged against him.

The notice was served by one Bloomer, who left with the defendant what purported to be a copy of the original notice, but which stated the day of hearing to be on November 22, instead of December 22, the day fixed in the original notice. On the said 22d of December, the correct date, defendant appeared specially by counsel and moved to dismiss the contest for want of proper service of notice, and presented the defective copy of notice which had been left with him.

The register and receiver refused to dismiss, but continued their hearing on their own motion until December 31, "to allow Riley to make oath of the service made upon him." On that day Riley's affidavit was filed, showing that the notice which had been presented to the court, and naming 22d November as the day of hearing, was the only notice or copy of notice he had ever received or heard of. On the back of the original notice is the affidavit of Bloomer that he served Riley with the within notice by reading it "to and in the presence and hearing of said West Riley, and delivering him a true copy thereof." Counsel for plaintiff on this showing did not ask for a continuance and new service of notice, but insisted that the service was sufficient. Whereupon the register and receiver, on motion of defendant, supported by his affidavit, as aforesaid, dismissed the contest because of the defective service of notice.

The plaintiff appealed to your office, and on presentation of the rec

ord above, your office returned the affidavit of contest and ordered a rehearing under the rules, with notice properly served on defendant.

The decision of your office is right. The authorities cited by counsel for appellant are not in point The first one (Crowston v. Seal, 5 L. D., 213) holds only, that when the defendart, a non-resident, is shown to have received notice by registered letter thirty days before the day set for hearing, the service is sufficient. The same opinion expressly holds that "it is not enough that the notice was sufficient to put the claimant on inquiry, unless due service has been made."

Due service in this case consists in the "delivery of a copy of the notice" to the defendant. (Practice Rule 9.)

Downey v. Briggs, 5 L. D., 590, cited by defendant, holds that the "original notice of contest, instead of a copy," is sufficient.

In the case at bar, neither the original notice, nor a copy thereof, was left with the defendant, for there can be no question that the defective copy was the one actually left with the defendant.

This decision also follows Milne v. Dowling, 4 L. D., 378, in holding that the "mere fact that the claimant has knowledge of a pending contest does not bring him into court," nor render it incumbent on him to defend his claim.

There has been therefore no proper service of notice on the defendant. The case will be remanded, in accordance with the decision of your office, which is hereby affirmed.

PRACTICE-MOTION FOR REVIEW.

HOFFMAN v. TOMLINSON ET AL.

A motion for the review of a departmental decision must be filed within thirty days from notice of the decision sought to be reviewed, and when so filed it operates as a supersedeas of any order or judgment made therein, but if not filed within that time the execution of the judgment can only be stayed by the direct action of the Secretary.

Secretary Noble to the Commissioner of the General Land Office, January 13, 1891.

On June 13, 1889, there came before the Department the case of Charles L. Hoffman v. Hiram Tomlinson and Theodore F. Barnes involving the right to the SW. of Sec. 8, T. 13 N., R. 38 W., 6th P. M., North Platte, Nebraska, which was formerly embraced in the homestead entry of the said Barnes, which be relinquished and afterwards applied to enter with two soldiers additional homestead certificates, as attorney for Hiram Tomlinson for forty acres and Daniel Emerson for one hundred and twenty acres.

Charles L. Hoffman applied to contest the entry of Barnes which was refused because said entry had been relinquished, and he then offered to make homestead entry of said tract, which was refused by the local

officers because of the pendency of the soldiers additional homestead application made by Barnes as attorney for Emerson and Tomlinson. Your office on October 23, 1886, approved the action of the local officers rejecting the application of Hoffman to contest, and also rejected the application of Barnes as attorney for Tomlinson to locate his soldiers additional certificate for forty acres, but allowed Barnes to locate the soldier's additional certificate of Emerson for one hundred and twenty acres. The claims of the respective parties came before the Department upon the appeal of Hoffman from this decision of your office, and on June 13, 1889, a decision was rendered by the Department in said case in which it was stated that the circumstances of the case lead to the suspicion that the entries sought to be made by Barnes, ostensibly for Emerson and Tomlinson were really intended for himself, and the following order was made :—

For the purpose, therefore, that the right of the said parties in relation to the matters in difference between them may be fully investigated and ascertained, it is ordered, that a hearing be had before the local officers when the facts in relation to the various applications of the parties can be fully inquired into and their rights regarding the lands in controversy determined. All parties in interest should be served with notice of the hearing.

Your office on June 26, 1889, transmitted to the register and receiver a copy of said decision with instructions to proceed with a hearing after due notice to all parties, and pursuant thereto a hearing was ordered for November 11, 1889. On that day Barnes, as attorney for Tomlinson, filed a motion for reconsideration of said decision of June 13, 1889, but the local officers did not deem it sufficient to delay the hearing, and the hearing was therefore had. The local officers on February 18, 1890, found that the evidence showing conclusively that neither Tomlinson nor Emerson ever resided upon the land, Hoffman's application should be allowed, and on December 19, 1890, they transmitted the record to your office. "Because of the presence of Barnes' said motion (for reconsideration of the Hon. Secretary's decision of June 13, 1889), with the record sent up by the local officers of December 19, 1890,” your of fice without making any decision in said case, transmitted the papers for the consideration of the Department in connection with said motion for review.

A motion for review of a decision of the Department must be filed within thirty days from notice of the decision sought to be reviewed (Rule 77), and when so filed it operates as a supersedeas of any order or judgment made therein; but if not filed within that time the execution of the judgment or order can only be stayed by the direct action of the Secretary.

This motion was not filed until nearly five months had expired after the rendering of the decision complained of, and it is not alleged or shown in said motion that the notice of the decision was not received within due time. On the contrary the affidavit of Barnes, asking as

attorney for Tomlinson that said hearing be continued, which was executed September 5, 1889, shows that he at least had notice of said decision at that time, which was sixty-seven days before the motion for review was filed. As said motion was not filed in time, and as the order of the Secretary was in process of execution when the motion was filed, it is hereby dismissed and the record is herewith remanded to your office that you may pass upon the appeal of Tomlinson from the decision of the local officers of February 18, 1890, which appears with the record in said case.

SERVICE OF NOTICE BY PUBLICATION-MISNOMER.

REIMER . VAN OENE.

Service of notice by publication is fatally defective, where, in the affidavit therefor, and the subsequent publication, the defendant is improperly designated as "Frederich Van Dem," instead of "Hendrik Van Oene."

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 13, 1891.

I have considered the case of George Reimer v. Frederich Van Dem (Hendrik Van Oene), involving timber culture entry No. 3545, for the NW. of Sec. 21, T. 128, R. 75, Aberdeen land district, South Dakota. Contest was initiated April 21, 1888. Service was had by publication, addressed to "Frederich Van Dem", upon affidavit by contestant that inquiry of persons residing in the vicinity of the land, and of the postmaster at the post-office nearest thereto, failed to disclose the whereabouts of said "Frederich Van Dem." From the records of your office, and from the entry papers in the case, it appears that the name of the person who made said entry was not "Frederich Van Dem", but Hendrik Van Oene." Whereupon your office holds that legal notice of said contest has not been given to said "Hendrik Van Oene", the entryman. I concur in your conclusion, and affirm your decision vacating the proceedings already had, and remanding the case for further hearing.

HOMESTEAD ENTRY-PENDING APPLICATION.

RICHARDS v. McKenzie.

An entry made during the pendency of the prior application of another confers no rights as against the prior applicant; and, in the event that such application is allowed the intervening entryman should be called upon to show cause why his entry should not be canceled.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 13, 1891.

I have considered the case of Alice V. Richards v. George F. McKenzie, involving lots 1 and 2, and the N. of the SE. of Sec. 11, T. 62 N., R. 14 W., Duluth land district, Minnesota.

The tract described was formerly covered by the cash entry of one Fred Schinarzork, which was canceled by your office letter of April 10, 1888.

On April 16, 1888, about half past eight o'clock a. m., Alexander Douglass made homestead entry of the tract.

At 9 o'clock a. m., same day, McKenzie applied to make homestead entry; but his application was refused, because of the prior entry of Douglass.

From this action of the local officers McKenzie appealed to your office, which (on June 25, 1888,) sustained the action of the local officers. Thereupon McKenzie (on August 31, 1888,) appealed to the Secretary.

While said appeal was pending, before the Secretary, said Douglass,' on October 15, 1888, relinquished his entry, and the same was canceled upon the records of the local office. Douglass' relinquishment was transmitted to your office which transmitted it to the Department; and the Department, on January 3, 1890, returned the papers to your office, with direction that McKenzie's entry be allowed.

The local officers complied with the directions; but wrote to your office for instructions as to what course to pursue, in view of the fact that on the date (October 15, 1888,) when Douglass relinquished his entry, they had at once allowed Alice V. Richards to make homestead entry of the tract.

Your office, on April 18, 1890, wrote to the local officers as follows:

I do not find anything in the records to show that the Hon. Secretary was advised of said Richards' entry, consequently the McKenzie entry was allowed without in any manner considering her rights; therefore . . . . . McKenzie did not acquire any preference right of entry by virtue of his application to enter said land, and the proceedings as indicated in the foregoing; therefore he should now be called upon to show cause within sixty days why his entry should not be held for cancellation, and the entry of Richards' be allowed to stand, as being the first legal entry for said tract after the same was subject to entry.

From this order of your office McKenzie appeals to the Department. Whether or not the second section of the act of May 14, 1880 (21 Stat., 140), is applicable to the case at bar need not be discussed. Irrespective of that, in view of the fact that McKenzie had made application, on April 16, 1888, to enter the tract in controversy-which application was, while pending, equivalent to actual entry, so far as the applicant's rights were concerned, and withdrew the land embraced therein from any other disposition until final action thereon-Richards' subsequent application (of October 15, 1888,) was improperly allowed, and conferred upon her no rights as against the prior applicant. (Rule 53 of Practice; Pfaff v. Williams et al., 4 L. D., 455; Maria C. Arter, 7 L. D., 136; 8 L. D., 559; Saben v. Amundson, 9 L. D., 578; Arthur P. Toombs, 10 L. D., 192; Pettigrew v. Griffin, 10 L. D., 510).

Richards's entry having been allowed, however-although in viola tion of departmental rules and precedents --you will direct that she be