missioner's decision was served either on the defendant or his attorney." The affidavits of De Roche and Mr. Hudson are filed in support of this statement; but neither of them pretends that a copy of the decision was asked for.

Your office entertained De Roche's appeal, and transmitted with it the original record of all the proceedings in the case. That record, which is now before me, shows that on April 3, 1895, Mr. J. L. Calvert, attorney for Yeoman, and Mr. L. P. Hudson, attorney for De Roche, met in the local land office at Perry, and your office decision was shown them. They doubtless read it together; for theu and there they both signed an acceptance of service of notice in the following words:

UNITED STATES LAND OFFICE,
Perry, O. T., April 3 1895.

We hereby accept service of Commissioner's letter "H" " W. M. C." of March 30, 1895, and of our further right of appeal within the usual time from this date as prescribed by law.

J. L. CALVERT, Attorney for Yeoman.

L. P. HUDSON, Attorney for De Roche.

No other words could have more explicitly waived Mr. Hudson's right to receive a copy of said letter.

Moreover on June 3, 1895, sixty-one days after the date from which the usual time for the exercise of the right of appeal was to be calculated, Mr. Calvert attended at the local land office. He had not been served with either an appeal or a specification of errors.

He then and there met Mr. Hudson, who then filed his appeal. Mr. Calvert filed a motion in writing to dismiss or reject said appeal, because "more than sixty days have expired since date of service as shown by the record.” And Mr. Hudson then and there at the foot of said motion, accepted service thereof. Even then Mr. Hudson did not complain that he had not been properly served with a copy of your office decision. The appeal with its eleven specifications of error, carefully prepared, shows that the writer had access to the original letter.

The Rules of Practice (17 and 66) do not prescribe the form of notice of a decision subject to appeal. But this Department has made several rulings on the subject. See 5 L. D., 233, 8 L. D., 192, 12 L. D., 74, 16 L. D., 187, 18 L. D., 192, 19 L. D., 461, and 20 L. D., 89.

I see no reason why Messrs. Calvert and Hudson for themselves and for their clients, should not have accepted service of your office letter, as they did.

The application for certiorari was evidently filed in ignorance of the fact that the whole record of the proceedings had already been transmitted to this Department. I have therefore considered the application and the affidavits filed therewith as a motion for review, conceding the facts stated to be true. For the reasons above stated De Roche's motion is hereby denied.

PRACTICE-DISMISSAL OF CONTEST-WITHDRAWAL OF DISMISSAL.

VANDIKE v. BENJAMIN.

A contestant who, on the day of hearing, files a dismissal of the contest, together with a new affidavit of contest, with a view to proceedings thereon, may properly be permitted, prior to further action in the premises, to withdraw the said dismissal, and submit evidence under the original charge, where good faith on the part of said party is manifest.

Secretary Smith to the Commissioner of the General Land Office, January 18, 1896. (C. J. G.)

On September 16, 1891, Alvin M. Benjamin made homestead entry for the SE. of Sec. 29, T. 1 N., R. 31 W., McCook land district, Nebraska.

On October 2, 1893, John W. Vandike filed affidavit of contest against said entry, alleging abandonment.

Notice issued, and hearing was had December 4, 1893, both parties being present with their counsel and witnesses.

Upon the testimony submitted the local officers decided in favor of the contestant, and recommended cancellation of the entry. An appeal was duly taken to your office, and by letter of July 20, 1894, you affirmed the action of the local office.

A further appeal brings the case to this Department, and the following errors are assigned:

1. At the time of the trial of the purported contest case before the register and receiver, there was no contest pending, the contestant having dismissed his contest on the day of hearing, and the register and receiver had no jurisdiction to hear said contest after the same was dismissed.

2. The court erred in finding that the contestee, Alvin M. Benjamin, had failed to comply with the law as to settlement and cultivation, and that he had failed to establish his residence upon the land.

From an examination of the record it is evident that Benjamin never established residence on this land in compliance with the law; consequently, though hardship may be inflicted thereby, his entry will have to be cancelled.

The remaining question, therefore, necessary to be determined by this Department, is whether or not certain proceedings had at the local office prior to taking testimony were irregular or erroneous. In order to fully set forth the facts in the case it will be necessary to embody herein the statement of the opening proceedings as prepared by the local office. The record is as follows:

At the time set for the hearing, the parties appeared in person and by their attorneys, Rittenhouse and Boyle, for the contestant, and A. D. Gibbs for the contestee, and the hearing was begun.

William Chestnut and J. W. Harker were sworn as witnesses in behalf of the contestant. Thereupon the attorney for the contestant asked for a few minutes time, and at 11.30 A. M. filed new affidavit of contest and dismissed this case. Also asked for notice upon the new contest.

The contestee objects to the filing of a new affidavit of contest and asks that the contestant be required to proceed upon the original affidavit, or that the second complaint be dismissed.

Adjourned to 1 P. M.

1 P. M., attorneys for both parties appeared.

Here the contestee made the following motion:

The contestee moves the court for judgment upon the original complaint filed in this action

Whereupon the contestant withdraws his dismissal and submits his witnesses for examination, and waives notice on the contest just filed until the termination of this case.

The contestee objects to the withdrawal of said dismissal and asks that the court rule upon his motion for judgment. By the register: The contestant having withdrawn his dismissal and offered to proceed upon his original complaint, the motion for judgment upon the complaint is overruled, and the contestant will proceed with his testimony.

To which the contestant excepts.

William Chestnut being called as a witness for the contestant, and having been duly sworn in the case testifies as follows:

State your name, age and occupation. William Chestnut, 40 years old, farmer. 2. Have you known the SE.

Benjamin, since Sept. 16, 1891?

of 29, 1, 31, being the homestead entry of Alvin M.

The contestee objects to the introduction of any evidence under the complaint filed in this action for the reason that the contestant had abandoned and dismissed the same.

Overruled. Excepted to by contestee.

In addition to this record the register prepared the following statement, in response to motion of attorney for contestee, suggesting a dimunition of the record:

The register inserted in the record all he thought indicated the formal procedure taken. As to the conversation and statements made, for the information of the Commissioner, if required, he states the following as his recollection:-he having taken the testimony. He has no definite recollection of the conversation before adjournment. The record shows that all was formally done then. It was just noon, and the register being somewhat undecided as to proper procedure, simply said we will adjourn until 1 P. M. At 1 P. M. attorneys for both parties were present, and the attorney for contestee at once entered the motion following the words noting the adjournment. The register examined some authorities and read one in presence of the attorneys. Both attorneys and register engaged in considerable conversation as to whether any judgment could be entered, or whether the case stood dismissed on the dismissal entered by the contestant. The attorneys for contestee claimed they were entitled to judgment; the attorney for contestant claimed the office has no jurisdiction to render judgment-there having been no testimony submitted, and that the only judgment that could be rendered, if any, was one of dismissal. The register remarked that the contestant was either in court or out. If in, judgment could properly be rendered; but if out, how could he be bound by a judgment? Just then, the register walked into the main office to consult with the receiver, remarking that if any action was taken, it ought to be the joint action of the regis ter and receiver. Just as the register had begun to converse with the receiver, the attorney for the contestant called the attention of the officers, and said he would withdraw the dismissal and go ahead with the original case. This was accepted by the office the former question was not further considered, and the case proceeded as shown by the record-over the objection there stated.

In support of their contention that it was error to allow the contestant to withdraw his dismissal of contest, counsel for claimant rely upon the case of Delaney v. Bowers, (1 L. D., 163), wherein it is said—

Where a contest has been regularly initiated and the contestant withdraws at or before the day fixed for trial, he will be regarded as in default, and the case will proceed and be decided accordingly. The same party will not be permitted to renew the contest on the same ground.

The contest affidavit filed by plaintiff on the day of trial, December 4, contained the charge of abandonment, and was couched in language similar to that of October 2. Blank notices were prepared in line with the affidavit, but were not dated nor signed.

The case above referred to is not applicable to the one under consideration. The decision in that case grew out of great abuses that were being practiced in the local offices. Parties for speculative purposes would "initiate contests, withdraw before the day of trial, then renew the contests, and so harass contestees and involve them in continued expenses." The decision in that case does not, and evidently was not intended to apply to the contestants who were apparently acting in good faith. This view is fully sustained in a subsequent decision, wherein it was said,

I do not, however, concur in that part of this decision which says, “when a contest has been regularly instituted, and the contestant withdraws at or before the day fixed for trial, he will be regarded as in default, and the case will proceed, and be decided accordingly," as applied to a case like that of O'Kane, where there appears to be an entire absence of bad faith. (O'Kane r. Woody, 2 L. D., 64).

A motion for withdrawal of contest, whether verbal or written, at or before the day of trial is only an interlocutory proceeding, and will be decided on the day of trial. (See instructions 2 L. D., 218).

Hence, until the case had "proceeded and been decided," and judg ment on the original complaint had been rendered, it remained within the jurisdiction of the court. Before this had been done, and while the local officers were debating what course to pursue, the contestant withdrew his dismissal, and thus relieved them from rendering a decision on Benjamin's motion. There is no question that if the case had "proceeded and been decided" Vandike would have been in default, for he would not have been "permitted to renew the contest on the same ground." By withdrawing the dismissal of his contest the case was left in its original status, to be tried on its merits. Counsel for defendant introduced his own witnesses and cross-examined those of the plaintiff.

The fact that the contestant filed a request for the dismissal of contest will not defeat his preference right of entry thereunder, where he subsequently, in good faith, prosecutes the same to a successful termination. Moore v. Lyon, (12 L. D., 265).

It is not claimed that Vandike's contest is speculative, or that it was brought for any other purpose than to secure the cancellation of the entry and procure the preference right thereto. No adverse claim could intervene pending the disposition of Vandike's original affidavit,

and by allowing the case to proceed, Benjamin was not denied any right nor opportunity to establish his claim.

Your office decision is therefore affirmed.

PRE-EMPTION-FINAL PROOF-PAYMENT-ADVERSE CLAIM.

GROTHJAN v. JOHNSON (ON REVIEW).

A contest between two claimants having been decided, and the right of one of the parties to perfect his pre emption claim, by the payment of the purchase price within a specified period, having been recognized, his failure to make such payment within said time will not subject his claim to an intervening adverse right, where the delay is satisfactorily explained, and it appears that he tendered payment with his original submission of final proof.

Secretary Smith to the Commissioner of the General Land Office, January 18, 1896. (P. J. C.)

I have before me a motion for review of departmental decision of October 31, 1895 (unreported), filed by counsel for Louise C. Grothjan. By said decision it was determined that the charges in the affidavit filed by Grothjan against the pre-emption cash entry of Joseph L. Johnson of the SW. of Sec. 1, Tp. 9 N., R. 5 W., Boise City, Idaho, land district, were insufficient to warrant the ordering of a hearing, and affirmed your office decision declining to order the same.

The motion for review does not present any question that was not considered in the former decision. Counsel, however, suggests that the departmental judgment is contrary to the doctrine announced in Crane v. Stone (10 L. D., 216). To show the distinction between that case and the one at bar, it is necessary to state herein the facts as they appear in the record before me.

By departmental decision of March 31, 1892, your office decision rejecting Grothjan's final proof and accepting that of Johnson was affirmed. A motion for review was overruled (15 L. D., 195), and a writ of certiorari denied February 21, 1893 (16 L. D., 180).

With the promulgation of the last decision the local officers "were directed to issue final papers to Johnson, upon payment of the required purchase money within sixty days from notice."" The sixty days within which he was required to make the payment expired January 29, 1894. On the next day Grothjan filed an application to make homestead entry of the tract, which was rejected because of Johnson's pre-emption claim on which final proof had been made and allowed. She also filed an affidavit of contest, alleging his failure to make the payment as required by the order, and some other allegations not material to this discussion. Notice was not issued, but the case was forwarded to your office. On February 3, 1894, Johnson tendered the purchase money, but it was rejected, for the reasons that it was not tendered within sixty days as ordered; that the papers had been forwarded to your office; and because of the intervening contest.