either the heirs or the legal representatives, the law is satisfied. Such a construction does no violence to the law and is, as I view it, in the interest of natural justice, preventing prolonged delay and unnecessary expense. Nobody's rights will be disturbed, nor the government defrauded.

Proof of compliance with the law has been shown, and patent, when issued, will be in the name of "the heirs of Mary Adams,” the entry

man.

Your decision is reversed.

TIMBER CULTURE ENTRY-FINAL PROOF-DEVISEE.

MOORE v. PHELPS.

The devisee of a deceased timber culture entryman may submit final proof. Secretary Noble to the Commissioner of the General Land Office, Febru ary 3, 1893.

I have considered the appeal of M. J. Moore from your decision of January 25, 1892, allowing Rosetta C. Phelps, the devisee named in the will of Albert E. Moore, deceased, to make final proof upon the timberculture entry of said Albert E. Moore, for the NE. of Sec. 14, T. 124 N., R. 60 W., Aberdeen, South Dakota.

In this case proof was made by Rosetta C. Phelps, as devisee of the deceased entryman, to whom final certificate was issued. Subsequently, the local officers transmitted an agreement between the devisee and M. J. Moore, the executor of the estate of Albert E. Moore, in which it was stipulated that the proof made by said devisee shall be considered as though made by the executor for the benefit of the heirs of the deceased.

It appearing that Rosetta C. Phelps was named in the will of said Albert E. Moore, as sole devisee of all of his rights pertaining to said timber-culture entry, you held that final proof might be made by said devisee, and that patent should issue thereon, if no objection is found against the entry upon final examination.

Under the timber-culture act of June 14, 1878, (20 Stat., 113), final proof may be made by the heirs or legal representatives.

the

I do not think it material whether the final proof is made by the beneficiaries under the law, or by the executor or administrator for their benefit. Ex parte John A. Sabin, 16 L. D., 149.

Your decision is affirmed.

PRACTICE-NOTICE-ATTORNEY-HEARING.

JOHNSON ET AL. v. MOKEURLEY.

Notice of the time and place fixed for a hearing to one of the contestant's attorneys is due notice to the contestant; and notice of the same character of the dismissal of the contest is also sufficient notice of such action to said party.

A hearing under contest proceedings against a final entry can only be ordered by direction of the Commissioner of the General Land Office.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, February 16, 1893.

On the 30th of April, 1889, John H. McKeurley made homestead entry for the NW. of Sec. 22, T. 12 N., R. 2 W., Guthrie land district, Oklahoma, which entry was contested by Lyman Johnson on the 29th of May, 1889. In his contest affidavit he alleged that the entryman was in the Oklahoma country during the period prohibited by the President's proclamation.

At the time of filing his affidavit of contest, Johnson filed notice that Bevans and Rowe were authorized to appear as his attorneys, and represent all his interests in the action. Said attorneys also filed notice of their appearance for Johnson in the case.

Before a hearing was appointed, the Oklahoma land district was established, and the lands in question being embraced therein, the papers were transferred to that office. The local officers at said office set the 10th of March, 1891, as the date for a hearing in the case, and notified Bevans and Earl (a law firm which had succeeded that of Bevans and Rowe) of the time and place of such hearing. The notice was received by Mr. Bevans, who was the senior member of both said firms. He made a copy thereof, and mailed both to Johnson, instructing him to have the copy served upon McKeurley.

On the 10th of March, 1891, the day set for the hearing, there was no appearance made by or for Johnson, and the local officers dismissed his contest. Notice of this action was sent by registered letter to Bevans and Earl, at Guthrie, but returned unclaimed.

After the dismissal of Johnson's contest against his entry, McKeurley gave notice, by publication, of his intention to make final proof in support of his claim, before the register and receiver, at Oklahoma, on the 28th of April, 1891. Such proof was duly made, and upon it was endorsed, by the local officers, the following: "Suspended ten days to await action of contestant to file corroboration of contest." Under date of May 8, 1891, a further endorsement is made thereon as follows: "Corroboration not filed; proof approved, and certificate No. 186 issued." The final proof showed that McKeurley had upon the tract a house, sixteen by eighteen feet, a well, eighty acres fenced and had cultivated and raised crops on thirty-five acres during the seasons of 1889 and 1890. The value of his improvements was placed at $400.

On the 27th of May, 1891, Jasper Sipes filed affidavit of contest against the entry of McKeurley, charging in substance the same matters alleged by Johnson. Two days later, Johnson applied to have his contest against said entry reinstated, and on the 19th of June, 1891, Sipes filed protest against granting Johnson's application.

On the 18th of June, 1891, G. W. Overstreet filed his affidavit, alleg. ing that he was the transferee and owner of said land, and asked to be made a party defendant.

The local officers transmitted all the papers in the case to your office, on the 20th of June, 1891, for your examination and orders. In their letter of transmittal they say:

It is due to this office that we explain that Bevans and Rowe were practicing attorneys at Guthrie. They dissolved, and Bevans and Earl succeeded the firm. Bevans attended to all the business for both the old and new firm at this office, and acting under the impression that service on either of the members of the old firm was good, we directed the notices to Bevans and Earl, and Bevans received same through the firm. It seems that he was unable to deliver the same to Johnson, who had changed his postoffice address without notice to said attorney.

On the 8th of January, 1892, you rendered a decision in the case, in which you reinstated the contest of Johnson, held that the contest of Sipes was subject thereto, and denied him the right of appeal from your decision. You suspended the final proof of McKeurley, and remanded the case for a hearing on Johnson's allegations, after valid notice to all parties in interest, of the time and place thereof, including the transferee, who was allowed to defend the entry involved in the same manner as if he were the entryman.

You suspended action on those orders for twenty days, to enable Sipes to apply for a writ of certiorari. He made such application, which was granted on the 13th of May, 1892. In pursuance of the direction therein contained, you transmitted to the Department the record in the case, on the 2d of June, 1892. Subsequent to that date, to wit, on the 2d of December, 1892, you forwarded to the Department a motion made by William E. Earl, attorney for Lyman Johnson, for the dismissal of the application of Jasper Sipes for a writ of certiorari in the case. As said motion was not filed in the local office until the 26th of September, 1892, four months and a half after the application for certiorari had been granted by the Department, it is difficult to understand what object the attorney had in view in filing the same.

When the application for certiorari was before the Department, it was opposed by Dudley and Michener, attorneys for Isaac G. Denny, who then claimed to be transferee and owner of the tract, and among the papers filed by them, were certified copies of four deeds. The first was executed by John H. McKeurley and wife, and dated June 9, 1891. The second was dated June 22, the third June 24, and the fourth, which conveyed the land to Denny, bears date July 29, 1891. He asks that the application of Sipes be denied, the contest of Johnson be dismissed,

and that patent be issued to him as holder of the final receipt, and owner of the tract in dispute.

Of the fact that the contest of Johnson was properly initiated, there is no question, nor is there any question that upon the day his affidavit of contest was filed, he also filed authority for Bevans and Rowe to appear as his attorneys and represent all his interests in the action. This was on the 29th of May, 1889, and on that day said attorneys entered their appearance for Johnson, "in compliance with above authority."

On the 12th of May, 1891, he filed his appointment of Howe and St. John as his attorneys in the case, "hereby annulling and revoking all former warrants of attorney filed by me." On the same day Howe and St. John entered their appearance as his attorneys, and filed a motion to set aside his default, and for the reinstatement of his contest. Notice of this motion was accepted by the attorneys for the entryman on said 29th of May.

On the 11th of June, 1891, he authorized W. E. Earl to appear for him in the case, and revoked all other authorities given. This was filed on the 13th of June, and on that day Earl filed a motion similar to that already filed by Howe and St. John. On the same day the attorneys for the entryman accepted service of such motion.

I find no other appointments of attorneys signed by Johnson, but in the record is an affidavit made by S. B. Bevans, who was the head of the firm of Bevans and Rowe, and also that of Bevans and Earl, who states that during the month of December, 1889, or early in January, 1890, Johnson called upon him at the office of Bevans and Earl, in the city of Guthrie. He then introduced the gentlemen, and explained to Earl that Johnson was a client of his, and to Johnson that Earl was his present partner. The nature of the business was explained, and the new firm retained in place of the old. The details of this interview are given in the affidavit of Bevans, and denied in affidavits made by Earl and Johnson. The firm of Bevans and Earl was formed on the 15th of October, 1889, and dissolved on or about the 5th of July, 1890. The local officers, having knowledge of the fact that the firm of Bevans and Rowe had been succeeded by the firm of Bevans and Earl, and that Mr. Bevans attended to all the business of both said firms before their office, directed the notice of the hearing in the case of Johnson's contest against McKeurley's entry, to the last named firm. Was this a notice to Johnson?

Upon this question the Rules of Practice of the General Land Office and the Department of the Interior, provide as follows:

Rule 104.-In all cases, contested or ex-parte, where the parties in interest are represented by attorneys, such attorneys will be recognized as fully controlling the cases of their respective clients.

Rule 105.-All notices will be served upon the attorneys of record.

Rule 106.-Notice to one attorney in a case shall constitute notice to all counsel appearing for the party represented by him, and notice to the attorney will be deemed notice to the party in interest.

From the 29th of May, 1889, until the 29th of May, 1891, Mr. Bevans was one of the attorneys authorized to appear for Johnson in the case, and represent all his interests therein. Notice of the hearing, although directed by the local officers to Bevans and Earl, was received by Bevans, and by him sent to Johnson, at the post office where he believed his client would receive it. It seems, however, that Johnson changed his residence more frequently than he did his attorneys, and the notice failed to reach him. Not hearing from Johnson, Bevans inquired of the entryman if he had been served with notice of the hearing, and being answered in the negative, he informed him as to the day set therefor, and the entryman, accompanied by counsel, was present at the time and place.

In the case of Clark v. Shuff et al. (7 L. D., 252), it was held that "notice to plaintiff's attorney of the day fixed for hearing, is legal notice to the plaintiff; and his failure to appear, either in person or by counsel, on the day so fixed, justifies a dismissal of the contest." The case of George Premo (9 L. D., 70), was that of a successful contestant, and it was therein held that notice of the preference right of entry given to his attorney, was notice to him, and that he must exercise the right within the time allowed therefor, or lose it. The case of Thomas C. Cook (10 L. D., 324), was similar to that of Premo, and it was therein held that "notice of the cancellation of an entry given to the attorney of the successful contestant is notice to the contestant, and he is bound thereby." See also Moody v. Kirkland (11 L. D., 394); Nichols v. Gillette (12 L. D., 388); and Holloway's Heirs v. Lewis (13 L. D., 265). The last named case distinctly holds that notice to one of the attorneys for a party is notice to such party.

Under the Rules of Practice quoted, and the decisions cited, I think it must be held that notice of the hearing on Johnson's contest, and of the dismissal of said contest, were duly served upon Johnson's attorney, and that Johnson was bound thereby. It follows, therefore, that his contest was properly dismissed by the local officers, and improperly reinstated by you, in your decision of January 8, 1892.

This leaves for consideration the rights of Sipes, the would-be contestant, as against Denny, the transferee.

When McKeurley gave notice of his intention to submit final proof in support of his claim to the land in question, it concluded with this statement:

Any person who desires to protest against the allowance of such proof, or who knows of any substantial reason, under the law and the regulations of the Interior Department, why such proof should not be allowed, will be given an opportunity at the above mentioned time and place to cross-examine the witnesses of said claimant, and to offer evidence in rebuttal of that submitted by claimant.

That notice was signed by the register, and was published for six successive weeks in the Oklahoma City Times, and posted in the land office as required. In his protest against the reinstatement of the con