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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settlers will read with inter- est Secretary Lamar's order throwing open to settlement all the lands hereto- fore withdrawn for the Atlantic and Pa- cific Railroad, from San Buenaveutura to San Francisco.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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