PRACTICE-RIGHT OF AMENDMENT.

FISHER ET AL. v. SALMONSON.

Where, in ignorance of the death of the entryman, suit was brought against him to cancel the timber culture entry standing in his name, and a motion to dismiss said contest, for the want of the proper party defendant, was filed by the sole heir of said entryman, the contestant was allowed to amend and proceed against said heir.

Secretary Lamar to Commissioner Sparks, May 25, 1886.

I have before me the case presented by the appeal of Ernest B. Fisherfrom the decision of your office, dated January 27, 1885, wherein his contest against the timber-culture entry of Anton Salmonson for the NW. of Sec. 22, T. 144 N., R. 55 W., Fargo, Dakota, was dismissed. Salmonson made this entry December 6, 1880, and one Daniel O'Hara began a contest against the same April 12, 1883, charging that said entryman" has failed to cultivate, or cause to be cultivated on said land five acres on or before December 7, 1882, or within the second year of said entry, contrary to the act of June 14, 1878." With the affidavit of contest O'Hara filed his application to enter said tract under the timber culture law.

Among the papers transmitted there is nothing to show that notice. was ever issued under the charge thus laid, and it is stated in the decision now on appeal that "The record does not show that any citation was ever issued by you, or that any notice of the contest was ever served or attempted to be served."

June 6, 1883, Fisher appears to have filed contest papers with a view to the procurement of the cancellation of said entry, filing application to enter, and charging non-compliance with the law; also alleging that said Anton Salmonson, the entrymen, was dead, and accordingly mak ing Peter Salmonson, the sole heir of the deceased, the defendant in such proceedings. On the same day Peter Salmonson by his attorneys, who made special appearance for that purpose, filed a motion to dismiss the contest of O'Hara v. Salmonson, alleging as grounds therefor: "That this contest is brought against Anton Salmonson instead of his heirs," and setting forth that said motion was "based upon the affidavit of Ernest B. Fisher, hereto annexed, who asked to be allowed to contest, and tenders his application to enter and his fees."

In response to this motion O'Hara filed affidavits, showing that said Anton Salmonson, being a non-resident, he (O'Hara) had no knowledge of his (Salmonson's) death until after bringing said suit; that the said Peter Salmonson was acting in bad faith and endeavoring to sell the relinquishment of said contested entry, and was only prevented therefrom by the pendency of his (O'Hara's) contest; for which reasons O'Hara asked that the "Heirs of Salmonson" be substituted as defend

ants and his rights under said contest recognized from the date of filing the same.

July 6, 1883, the local office, acting on the said motion to dismiss, sustained the same and dismissed the contest, on the ground that the suit should have been against the heirs of said deceased entryman. July 26, 1883, your office on the examination of the record, as sent up by the district office, found that said O'Hara had not filed an application to enter with his affidavit of contest, and for that reason dismissed his contest and at the same time directed the local office to proceed with Fisher's contest. August 1, 1883, the local office advised your office that O'Hara did file an application to enter with his contest, which it seems was not transmitted with the papers in the case.

Subsequently, and after considerable correspondence in order to ascertain the facts as to notice given of the decision of July 26, the local office was directed to give formal notice of said decision. Such notice was given October 2, 1884, and O'Hara filed his appeal from said decision December 3, 1884.

Inasmuch as the decision of July 26, 1883, had been rendered upon an imperfect record, your predecessor held that it was not necessary to submit O'Hara's appeal, and on January 27, 1885, decided that as O'Hara had, through ignorance of Anton Salmonson's death, named said entryman as the defendant, but had in fact applied to enter the land at the time of bringing such contest, he should be allowed to file an amended a ffidavit of contest, dating his right back to the time of making said application. In support of this ruling, the cases of Fergus v. Gray (2 L. D., 296,) and Adair v. Neal (3 Id., 95,) were cited; and Fisher's contest was dismissed on the ground that as a stranger to the record he had no right to be heard herein.

The right of amendment was properly allowed, but it rests upon a broader principle than that laid down in your predecessor's decision.

The general rule in the courts is that where the rights of the parties are not prejudiced by allowing amendment, or where there is a substantial subject matter, or remedy sought, the case will not be dismissed, but due time and terms given for such amendment. Kirstein v. Madden (38 Cal., 163); Seevers, admr., v. Hamilton et ux. (11 Iowa, 71); Hiram T. Hunter (2 L. D., 39).

In the case of Randolph v. Barrett (16 Peters, 141), wherein the defendent, being sued as administrator, plead that he was in fact executor, the court said: "The power of the court to authorize amendments, where there is anything on the record to amend by, is undoubted. In this case the defendant admitted by his plea, that he was the person liable to the suit of the plaintiff, but averred that he was executor and not administrator. Whether he acted in one character or the other, he held the assets of the testator, or intestate, in trust for the creditors; and when his plea was filed it became part of the record, and furnished matter by which the pleadings might be amended."

As in that case, so in the case now at bar, the motion to dismiss supplied information upon which the amendment could be properly founded, for while said motion pointed out that the suit was not directed against the proper party, it at the same time disclosed the true defendant.

Again, contests like this to clear the record partake largely of the nature of actions in rem. So where the land is properly described in the affidavit of contest, and application to enter, certainty as to the subject matter of the contest is secured and the foundation laid for subsequent action. Under this view of the case the application to enter may be properly considered in aid of the right claimed by the contestant to show that the land was in fact subject to such application. McCall v. Molnar (2 L. D., 265).

The entryman was a non-resident and information concerning him does not appear to have been readily obtainable in the vicinity of the land; hence want of diligence can not be alleged as against the application of O'Hara to amend.

The decision of your office is therefore affirmed.

PRACTICE-SUFFICIENCY OF NOTICE.

MCTIGHE v. BLANCHARD.

Under Rule 35 of Practice thirty days notice of the hearing before the local office is sufficient, though an earlier date may be named in said notice for taking testimony elsewhere.

Secretary Lamar to Commissioner Sparks, May 25, 1886.

I have before me the case of Martin McTighe v. Chester H. Blauchard, involving homestead entry No. 22063 upon the SE. 4 of Sec. 3, T. 11, R. 58, Watertown, Dakota, on appeal by McTighe from your predecessor's decision of January 5, 1885, dismissing his contest.

The record shows that Blanchard made said entry on September 19, 1882, and that at said date he was residing on a pre-emption claim, where he continued to reside until April 30, 1883, when he made final proof and entry. On April 18, 1883, McTighe filed affidavit of contest alleging abandonment and change of residence for six months next prior thereto. Notice was issued on April 24 following, fixing June 25 as the date of hearing, and ordering that testimony should be taken before a certain clerk of court on June 18, 1883. Service of notice was made upon Blanchard in person on May 22, 1883. At the appointed date the contestant took testimony before the clerk of court, but the contestee failed to appear; and on said testimony the local officers held that the contest charges were sustained and that the entry should be canceled. When the case reached your office, it was held that "due notice" had not been given the entryman; and thereupon the contest was dismissed as aforesaid.

Rule of Practice 7 (formerly Rule 8) provides that "at least thirtydays' notice shall be given of all hearings before the register and re

ceiver." Rule 42 provides that the testimony shall be taken before the register and receiver "Upon the day originally set for hearing, or upon any day to which the trial may be continued." Rule 35 empowers the local officers to direct that testimony shall be taken before some other officer "at a time and place to be fixed by them and stated in the notice of hearing"; and that, "on the day set for hearing at the local office, the register and receiver will examine the testimony. and render a decision." I am of opinion that under these rules the day of the "hearing," of which the thirty days' notice must be given, is the day set for the appearance of the parties before the local officers and for examining the testimony taken elsewhere than at the local office, and not the day on which said testimony is to be taken. Under Rule 35 of Practice of December, 1880, oral testimony could be taken only before the register and receiver, and not earlier than on the day set for hearing, except by consent of the parties. In December, 1882, the rule was amended to substantially its present form, so as to authorize the testimony to be taken on an earlier day in the discretion of the local officers; requiring that the date and place thereof should be indicated in the "notice of hearing," but not providing any limitation as to time or changing the terms of Rule 7, and therefore leaving said rule appli cable only to the day of appearance before the local officers.

In the case now before me, it appears that more than thirty days' notice of the "hearing before the register and receiver" was given, though there was but twenty-seven days' notice of the day of taking testimony before the clerk of court. Your office ruled that this was not due notice, but for the reasons above stated said ruling must be held to be erroneHaving received proper notice of the date of trial, it was incumbent on the contestee, under existing rules, if he felt himself aggrieved by the shortness of the period prior to the day set for taking testimony, to move the designated officer for an extension of time, which on a proper showing should have been granted. Having failed to do this, he may not now be heard to allege that any injury resulted to him from this cause.

Blanchard has stated in an affidavit accompanying his appeal that he made application for a new entry on this tract prior to the initiation of McTighe's contest; but it seems, from your predecessor's said decis ion, that such an application is not on file, and as it is not otherwise satisfactorily proved, the effect of such an application need not now be considered.

The evidence in this case shows the abandonment alleged. The excuse offered by Blanchard for continuing to reside on his pre-emption claim after making the homestead entry, to wit, that the local officers misled him by an erroneous opinion of the law, upon a hypothetical case stated to them, is, as against a contestant, manifestly insufficient. His entry should therefore be canceled.

The said decision is reversed.

TIMBER CULTURE-BREAKING BY FORMER CLAIMANT.

DONLY . SPRING.

In case of special defense the burden of proof shifts to the defendant.

If credit is allowed on account of breaking and planting done by a previous entryman it must appear that such work has been properly utilized and followed up by the subsequent claimant.

Acts done toward curing default, after the initiation of contest, will not be considered as affecting the case made out by contestant.

Secretary Lamar to Commissioner Sparks, May 25, 1886.

I have considered the case of Bernard Donly against Charles G. Spring, involving the latter's timber culture entry of April 6, 1882, for N. of NW. 1, SE. 1 of NW. 1, and NE. of SW. 1 of Sec. 8, T. 96, R. 55, Yankton, Dakota Territory.

On June 16, 1883, contest was initiated by Donly, against said entry, alleging that the entryman "has failed and neglected to break or plow any land on said tract during the first year after making said entry.” September 10, 1883, hearing was had, at which both parties submitted testimony; on the consideration of which the register and receiver, on March 25, 1884, dismissed said contest; this judgment, on appeal, was affirmed by your office; and on Donly's appeal from that affirmance the case is now before me.

The testimony shows, and it is conceded by the attorney for Spring, that from the time of his entry, on April 6, 1882, until after the initia tion of the present contest, no work whatever was done by him upon said tract. By way of avoidance, it is claimed in behalf of Spring, that prior to the time of his entry more than five acres had been broken on the tract and planted to trees by the former entryman, whose improvements and possessory right had been bought; and that the reason Spring did not plow or cultivate said tract the first year after entry was because there were trees there, which he did not wish to plow up. The register and receiver thought this defense fully made out, and in that view you concurred. In behalf of the appellant, it is insisted that in so doing error was committed as to both the law and facts of the case.

In considering the case it is to be observed that in setting up this special defense, Spring takes upon himself the burden of proof in relation thereto; and it becomes necessary to first examine the testimony submitted by him in support thereof.

That testimony utterly fails to sustain the defense set up, further than to show that Patrick Smith, the father-in-law of Spring, made timber culture entry of the tract in 1878, and broke during the two years thereafter five or six acres; Smith and his wife testify to the cultivating and planting of the whole of said breaking in trees during the second year, and the replanting of the dead trees the third year.