Practice-Continued. III. AMENDMENT-Continued. Of a charge in a contest permitted on the general rule observed in the courts, where a substantial remedy is sought and the rights of parties not prejudiced. XVIII-583 IV-538 Granted where the record furnishes matter to amend by. IV-538 X-181, 497 May be allowed where the charge is defective. Where affidavit (against timber-culture entry) is executed prematurely, but filed at the proper time, it may be amended. Motion for review may be amended if no party in interest is injured thereby. II-249 VIII-248 Allowed on the day set for hearing if the charge is found defective. Complaint may be amended after due notice and evidence subV-211; VI-268 mitted thereunder. VI-791 X-261 May be allowed on suggestion of defendant's death. The right to amend defective pleadings is lost by failure to appeal and can not be set up in a new contest after the interest of another has intervened. Refusal of local office to allow, is not an abuse of discretion where III-58 the amended charge is much more comprehensive than the original and the facts set forth were known to the contestant prior to the commencement of the action. XV-305 That essentially changes the character of the charge not allowable as the basis of a rehearing. In proceedings against a final entry the local officers have no authorXXI-94 ity to allow, where the new matter is not related to the original charge. Of an affidavit of contest relates back to the original if no new XIV-447 charge is made. When required by decision of the local office, the right to proceed XIX-309 dates from compliance with said decision. The recognition of the right of, in a contestant, as against the right XIX-453 of a third party to proceed against the entry under attack, is a matter that the contestee is not entitled to call in question, where he has due opportunity to prepare for trial. When containing new matter and filed after case has closed, must XXII-22 be treated as new contest and held for disposition of pending suit. Affidavit of contest may be amended subject to intervening rights. VI-234 Of contest affidavit can not be permitted in the presence of an interII-210; VII-452 vening adverse right. In the place of, after judgment, a new contest is allowed. VIII-446; IX-18; x-105 IV-299 Practice-Continued. III. AMENDMENT-Continued. A motion to dismiss for informalities in the affidavit may be granted or amendment allowed. II-217, 220 That it was not filed within the time allowed is an objection that can not be raised after trial. X-405 Of an application for certiorari, denied for want of formality, can not be allowed. XI-346 Allowance of, in contest does not require new service of notice; but the case may be continued in the discretion of the local office. XV-223 XX-487 I-472 IV. APPEAL. Rule 43, amended. Rules relative to, analogous to practice in the courts. Is the proper method of invoking the supervisory authority of the Secretary. In an appealable case is a waiver of pending motions. V-613 v-438; VI-218; XIII-245 Rules of practice with respect to, must be followed in case of hearing ordered under mineral circular of October 31, 1881. V-671 When a case is returned to the General Land Office, on the request of the appellant, for further consideration of new facts, the appellate jurisdiction of the Department terminates and can not again attach except through a subsequent appeal from the final action of the General Land Office. XIII-221 Withdrawal of, will not prevent the Department from considering the record and rendering such judgment as the law and facts require. XII-495 Withdrawal of an appeal leaves the decision final. Withdrawal of, from an order holding an entry for cancellation on the report of a special agent, with opportunity to apply for a hearing, permits said order to become final. XVI-259 Estops the appellant from denying the full jurisdiction of the appellate tribunal, even though the adverse parties are themselves chargeable with laches. II-29; III-562, 608 Right of, should not be denied before it is sought to be exercised. IV-53; XV-187 Having been sustained as to order of procedure, the case should be remanded. V-370 Not allowed on the unverified statement of attorney that notice of decision was not received as shown by the record. VI-775 Right of, not lost through failure of local officers to give notice of adverse decision. V-233 Not defeated by a mistake in the appellant's name if the subjectmatter is otherwise clearly identified. IX-545; XVIII-490 Local office may not dismiss, on the ground of its defective char acter. V-368 Practice-Continued. IV. APPEAL Continued. Regularly taken should not be dismissed. XI-235 Motion to dismiss, should be passed upon when the case is reached in order. V-479 Motion to dismiss on the ground of want of authority on the part of appellant's attorney must fail if in response thereto said attorney shows due authority. IX-525 Will not be dismissed on the ground that appellant's attorney has been disbarred where there is no official record of such action. IX-520 Taken by an attorney not authorized to practice in the Land Department will not be entertained. XXII-272, 434 In which it is alleged that certain important papers are missing from the record should not be dismissed on motion without allowing the appellant an opportunity to respond to said motion and take action with respect to the missing papers. XII-694 Will not be dismissed on the motion of a former attorney of the appellant who at the date of the motion had ceased to represent the appellant. VIII-192 A motion to dismiss, will not be entertained on behalf of a stranger to the record, nor in the absence of due notice thereof to the appellant. XVIII-245 Filed by attorney who has not furnished authority, as required in circular of July 31, 1885, should not be dismissed without notice under Rule 82. IV-569 Objection to the sufficiency of, will not be considered if raised for the first time on review. VII-470 Validity of affidavit accompanying application to enter not to be raised for the first time on appeal or upon the motion of a stranger to the record. III-547 Objections resting on appellant's allegation and not of record in the proceedings before the local office, but raised for the first time on appeal to the Department, will not be considered. VI-654 In the absence of, from dismissal of contest before the submission of evidence the entry should not be canceled without further hearing. IV-354 Matters pending before the Commissioner for his decision will not be considered on appeal to the Department. IV-284 In appeal to the Secretary questions properly requiring primary action by the Commissioner will not be considered. II-650 On appeal or review the Department can only consider rights put in issue by the contest and founded upon a live application. III-104 Unperfected, is no bar to a hearing on the subsequent application of the appellant. VIII-544 Of contestant taken prior to the death of the entryman confers jurisdiction upon the Commissioner. VI-779 Practice-Continued. IV. APPEAL-Continued. After notice of, the death of the appellee will not defeat the jurisdiction of the Department to proceed with the case. VII-500 A party to an appeal is a party to the case until it is closed by execution of the decree and may call attention to the manner in which it is executed. II-523, 595 Want of, excused in the absence of written notice of decision. IV-73 Failure of party in interest to, from an adverse decision is conclusive as to his rights therein. III-180; v-263; IX-569; XI-416, 570; XXI-8 Rights lost through failure to, can not be set up after the intervention of an adverse claim. III-105, 473; Iv-187, 414, 532 If not taken from the rejection of an application to contest an entry, all rights are lost thereunder. XI-179 The failure of an applicant for public land to file a formal, from the rejection of his application to enter will not defeat his rights in the premises, where by his subsequent diligence he secures an examination of the record by the General Land Office. XX-550 Failure to take, in case of a rejected application to enter, defeats all rights of the applicant. XIII-250, 365 Failure to, from the rejection of a declaratory statement defeats all rights that might have been secured thereunder by proper diligence. XVII-494 Failure to take, from an order of dismissal made without jurisdiction will not affect the rights of a contestant. X-678 Failure to, not excused on the plea of want of notice when the record shows notice to the attorney. V-248 Is a waiver of a pending motion to set aside the decision and remand the case to the local office. XIII-245 From Local Office. Rule 46, requiring notice of, is mandatory and has all the force and effect of law. XII-199 Amended Rule 70 revoked and original rule adopted. XVII-325 Rules regulating, from the General Land Office not applicable to cases before local office. I-472 Papers to be retained in local office for thirty days after notice of decision and report then made whether appeal has been taken. II-205; III-38; IV-203 From the local office not requisite to the jurisdiction of the Commissioner. I-455 During the pendency of, no action should be taken in the local office affecting the disposal of the land until instructed by the Commissioner. IV-215, 242, 395; v-227; VII-140; IX-59, 281, 299, 326, 578 During the pendency of, from action of the local office it has no jurisdiction over the case or land involved therein. 5918-24 VIII-559 Practice-Continued. IV. APPEAL-Continued. From Local Office-Continued. Rule 53 amended so as to permit the submission of final proof during the pendency of a contest. XIV-250 Disposition of land released by relinquishment during the pendency of, must be governed by the act of May 14, 1880, and not by Rule 53. XIII-590 No action should be taken by the local office pending appeal from its decision rejecting the testimony of one of the parties. VI-440 Pendency of, precludes the allowance of an entry for the land involved. II-270; X-15 Dismissal of contest by the local officers while the case is pending on appeal is error. II-245 The publication of notices of right of appeal in contested cases before local officers discontinued. III-99 Notice as to right of, must be given under Rule 66 when an application to file or enter is rejected. v-377 Failure to, from rejection of application to enter does not defeat the right of the applicant if he is not given the requisite notice in writing of the adverse action. XVI-111 Failure to appeal from the rejection of an application does not impair the claim of the applicant if he is not informed of the right of appeal. XI-191 Applicant for land should be informed as to the right of, if his application is rejected. XII-235, 684 In the absence of, the decision of the local office is final as to the facts and will not be disturbed by the Commissioner except under Rule 48. 1-467; v-585; VIII-30; XI-300; XIII-686; XIV-230; XVIII-409 In the absence of, the decision of the local office is final as to the facts unless the case is one within one of the exceptions to Rule 48, though a different conclusion might have been reached had appeal been taken. VII-98 Failure to appeal from the local officers' decision renders their action final as to the facts so far as the parties are concerned, subject to certain exceptions, but the General Land Office is not thereby precluded from passing on the evidence when the interests of the government require such action. VII-20; XI-396, 407; XV-37 In the absence of, the Commissioner should correct errors in the decision of the local office where said decision is not consistent with the findings of fact by said office. XIII-486 In the absence of, the Commissioner may decide a case on its merits where there were disagreeing decisions of the local officers. IX-438 |