Brady v. Fall

• Decision Date: 01 May 1922
• Docket Number: 3721.
• Citation: 280 F. 1017
• Parties: BRADY v. FALL, Secretary of the Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

280 F. 1017

BRADY v. FALL, Secretary of the Interior, et al.

No. 3721.

United States Court of Appeals, District of Columbia.

May 1, 1922

Submitted April 4, 1922.

Appeal from the Supreme Court of the District of Columbia.

S. M Stockslager, of Washington, D.C., for appellant.

C. E Wright and Edwin S. Booth, both of Washington, D.C., for appellees.

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 Lillie S. Harner, and for other relief.

On October 27, 1915, according to the averments of the bill, Harry S. Harner instituted 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 the provisions of the Act of May 14, 1880 (21 Stat. 140 (Comp. St. Secs. 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 17, 1919, Rudolph L. Larson 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 Larson entry and that Mrs. Harner be allowed to enter the land. Brady and Larson both appealed, and the Department canceled the Larson 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.

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 F. 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...