Brady v. Fall

ROBB, Associate Justice. Appeal from a decree in the Supreme Court of the District, dismissing appellant’s bill to enjoin appellees from issuing a patent for certain public land to Eillie S. Harner, and for other relief. ' On October 27, 1915, according to the averments of the bill, Harry S. Harner institúted a contest proceeding against William Rattkamner, a homestead entryman of the land in controversy. On January 6, 1916, the entry was canceled, but Harner was not notified until December 27, 1918. Under thé provisions of the Act of May 14, 1880 (21 Stat. 140 [Comp. St. §§ 4536-4538]), Harner had the preference right of entry within 30 days after receipt of the notice. On January 1, 1919, or within Harner’s 30-day period, the appellant, Brady, made a homestead settlement on the land. On February l7, 1919, Rudolph L. Earson filed a homestead entry on the same land and on March 3d, following, Brady instituted a contest proceeding against Larson, alleging a prior settlement. On April 14th, following, Lillie S. Harner, as the deserted wife of Harry S. Harner, filed a petition to intervene, which was allowed on the next day. Hearing was had, at which “all parties appeared in person and by their attorneys.” The register and receiver decided that Mrs. Harner’s rights were paramount to those of “either the contestant or the contestee,” and recommended the cancellation of the Earson entry and that Mrs. Harner be allowed to enter the land. Brady and Larson both appealed, and the Department canceled the Earson entry, dismissed the contest, and awarded the land to Mrs. Harner. The bill alleges that the Secretary was about to issue a patent to her when this suit was instituted. [1, 2] It is apparent from the foregoing statement that Mrs. Harner is an indispensable party, for the bill seeks to deprive her of rights to which she has been found entitled. Foltz v. Payne, 50 App. D. C. 155, 269 Fed. 671. Having found that Mrs. Harner’s rights were paramount, the Department did not determine the merits of appellant’s contest with Larson, and yet we are asked to set aside its finding without the presence i of Mrs. Harner and without knowledge of the facts upon which the Department acted. Moreover, the question decided was one within the jurisdiction of the ’ Department and, there being no showing of capricious or arbitrary action, the decision may not be [1019] controlled by injunction. Gaines v. Thompson, 7 Wall. 347, 19 L. Ed. 62; Hall v. Payne, 254 U. S. 343, 41 Sup. Ct. 131, 65 L. Ed. 295; O’Brien v. Lane, 40 App. D. C. 493. Decree affirmed, with costs. Affirmed.