13 Copp's Land Owner 1 (1886-1887)

handle is hein.journals/coplndow17 and id is 1 raw text is: COPP'S LAND OWNER.
VOL XIII.           WASHINGTON, D. C., APRIL 1, 1886.   No. 1.

SEE Table of Contents on second page
or cover.
OFFICE OF Copp's LAND OWNES is now at
No. 822 8th Street, N. W., within two
squares of the General Land Office.
TO LOAN AGENCIES.
The editor of the LAND OWNER is in re-
ceipt of applications from parties who
wish to loan money on farm mortgages
and otherwise in the West. He requests
terms for investment.
SPECIAL NOTICE.
SUmwmBERs who return Volume 12 of
the LAND OWNER will be credited with
$3.00 on the subscription books.
GIRARD ScRip, issued under Act Feb-
ruary 10, 1855 (Vok 10, 849), locatable on
the public lands, without the payment
of any consideration. Four forty acre
pieces. Address Editor of Copp's LAND-
INDEX TO VOLS. I TO 9.
This book is now ready for delivery.
It contains 203 pages, price $2.00. The
Table of Cases takes 52 pages; Acts of
Congress cited and construed. 10 pages;
Circular Instructions, 4 pages; Court De-
cisions, 8 pages; Homesteadb, 7 pages;
Laws of Congress, 5 pages; Lodes, Mines,
and Placers, 7 pages; Patents, 4 pages;
Pre-emptions, 5 pages; Ralroads, 4 pages;
Surveys, 6 pages; Timber Culture, 4
pages; Widow, Wife, and Woman, 2
pages.
SOLDIERS' ADDITIONALS
Bought and sold at market prices. Ad
dress editor of LAND OWNEL
TuE. amount of grapf-s. pears, apricots,
oranges, etc., rnis.d in California is in-
creasing very inst.  It is stated that
40,000.000 pouinds of fresh fruit were
shipped out of California by rail, between
January I and September 1 of the present
year--an in(rease of 32,000,000 pounds
over the corresponding period last year
The shipmtnts for the first eight months
(f 1885 made 2,000 car-loads.
Mas. Tuomt.s, of Philadelphia, reported
't a meeting of the bee-keepers in Trenton
in December that she had obtained an
average of 150 fpounds of honey from
Iawent,y coloxes,,or total of 8,000 pounds.

This was extracted honey, for which she
received twenty-five cents per pound, net-
ting her therefore $37.50 per hive. She
also cleared last year $1,000 from her
poultry yard, and runs a twenty-acre farm
besides.
CALIFORNIA settlers will read with inter-
est Secretary Lamar's order throwing
open to settlement all the lands hereto-
fore withdrawn for the Atlantic and Pa-
cific Railroad, from San Buenaveutura to
San Francisco.
PRACTICE.
MILNE VS. DOWLING.
Contest--Notica.-Jvudkcton.-Atual notice or
knowledge of a pending contest does not ren-
der it incumbent upon the defendant to ap-
pear and defend, in the absence of due legal
service uf notice.
Objection to juisdiction is not waived by pro-
ceeding to trial after motion to set aside the
service of notice is overruled, and exception
duly taken thereto.
S c1RTART LAMAR to CuOMiniOner Spark.,
Februar 10, 1886.
I have considered the case of William
Milne us. Thomas Dowling, involving
homestead entry 3660 made November 15th,
1881, on the S. W. I of Sec. 31, T. 157, R.
55, Grand Forks, Dakota, on appeal by
Dowling from your predecessor's decision
of September 27, 1884, holding his entry
for cancellation.
The primary question raised by the ap.
peal is that of the jurisdiction of the local
officers. It appears from the record that
contest was initiated May 28, 1883, and
notice was given by publication; but there
is no proof of the service, by registered
letter as required by Rule 18 of Practice.
At the hearing August S, 1883, counsel
for contestee entered a special appearance
for the purpose of making, and made a
motion to dismiss the proceedings for fail-
ure to mail him a registered letter. Said
motion was overruled and an exception
was taken. Counsel for the parties there-
upon stipulated for a continuance to Oc-
tober 16th, which was requested by coun-
sel for contestant for the purpose of fur-
nishing evidence in regard to service by
registered letter. On said last named date
the parties appeared at the local office,
and no evidence of the required service
being offered, counsel for contestee again
moved to dismiss for want of jurisdiction,
and the motion was again overruled and
an exception noted. Whereupon the case
went to trial, contestee and his witnesses
being present and testifying, and his coun-
sel cross-examining contestant's witnesses.
Judgment was rendered against the con-

testee by the local officers. On appeal
your predecessor sustained their decisiop
as aforesaid.
Their reason for over-ruling the motion
to dismiss is stated by the local officets to
be this: That while it appears that no
registered letter containing a copy of the
summons was mailed to the claimant, as re-
quired by rules of practice, it does appear
that he received notice of the contest, and
thus he had an opportunity to prepare to
defend his claim. This position is un-
tenable, being in violation of the plain rule
of law, that a defendant id not in court
without a legal service of summons, unless
he voluntarily enters a general appearance.
The mere fact that a claimant has know-
ledge of a pending contest against him
does not bring him into court, and does
not render it incumbent upon him to defend
his claim; for the local office has no right
to cancel his claim without, first obtaining
Jurisdiction over him, and that they can
only obtain in the manner pointed out by
the law or the regulations.
When the case came up to your office,
your predecessor held that the contestee
was entitled to the notice required by the
rules, but that the agreement setting Oc-
tober 16 as a day for hearing was sufficient
notice, and placed the claimant in a con-
dition to defend his rights. I can dis-
cern no difference between this ruling and
that of the local officers. In effect it holds
that actual notice, without legal notice, of
the contest is sufficient to vest jurisdiction
in the local office, and it is overruled for
the reasons above stated.
The important point is whether the con-
testee waived his objections to the juris-
diction by proceeding to trial after his
motion to dismiss had been overruled. I
think that this question is settled by the
decision in Harkness vs. Hyde (98 U. S.,
476), in which it was the point in issue.
In said case it appears that legal service
was not had, and the defendant thereupon
appeared specially by counsel appointed
for the purpose, and moved the court to
dismiss the action. Upon stipulation of
the parties, the motion was adjourned to
the Supreme Court of the Territory and
was there overruled and an exception
taken. The case was then remanded to
the district court, the defendant filed an
answer, and on trial the plaintiff recovered.
Upon motion for a new trial, plaintiff
again recovered,and judgment was entered,
and on appeal to the Supreme Court of the
Territory the judgment was affirmed.
Then the defendant took tho case to the
Supreme Court of the United States, rais-

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