The case is similar to that of Gibson v. Van Gilder (9 L. D., 626), in which it was said:

and he

Under this rule (72) the Commissioner may grant a rehearing may also in the exercise of his discretion order a further investigation or hearing when necessary to enable him to render an intelligent decision in the case, although no motion for a rehearing is filed, and the Department will not control the Commissioner in the exercise of this discretion unless there is an apparent abuse of it. . . The remanding of this case for further hearing does not violate rule 48 because that rule must be considered in connection with rule 72, which allows the Commissioner in his discretion to make further investigation and to have additional testimony before him, before passing upon the merits of the case, or passing upon the decision of the local officers.

I do not find in the case at bar any abuse of discretion, nor do I find that the petitioner will suffer any material injury by the order made. The application is therefore refused.

NOTICE-PUBLICATION-ACT OF JUNE 15, 1880.

JONES v. DE HAAN.

Notice of a decision given by unregistered letter is not sufficient evidence of service; nor do the rules of practice provide for verbal notice in such a case.

In an affidavit, filed as the basis for an order of publication, which sets forth that the defendant is not a resident of the State, and personal service can not be made, it is not necessary to show what efforts have been made to secure personal service on the defendant.

The initiation of a contest suspends the right of purchase under the act of June 15, 1880.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 9, 1890.

I have considered the appeal of Adam De Haan from your office decision of October 3, 1888, in which the record shows that De Haan made homestead entry No. 2936 February 28, 1879, of the E. of the NE. 1, Sec. 4, T. 11, R. 30 W., Wa Keeney, Kansas, and additional homestead entry No. 2992, under the act of March 3, 1879 (20 Stat., 472), of the west half of the same quarter section.

May 19, 1885, John H. Jones initiated contest, charging abandonment of both said entries. Notice of contest was made by publication on the affidavit of Jones that defendant, De Haan, was not a resident of the State of Kansas, and that personal service can not be obtained. At the hearing, July 7, 1885, defendant made default, and plaintiff appeared and submitted testimony in support of his charge of abandonment.

September 23, 1885, before a decision was rendered on the contest, defendant applied to purchase said tracts under the act of June 15, 1880 (21 Stat., 237), which application was granted by the register and receiver, and he was permitted to make cash entry No. 1122, and the

contest was dismissed. Jones did not appeal from the action of the register and receiver in dismissing his contest until December 8, 1886. The reasons for such delay are set forth in your office decision (letter "H" to register and receiver), and are as follows:

The case was first brought to the notice of this office by plaintiff's letter, dated February 8, 1886, inquiring as to the status of the same. As the result of such letter, and in reply to office letter of August 16, 1886, you transmitted the record in the case August 19, 1886, with report that though notified of your decision dismiss. ing the contest, plaintiff took no further action in the premises. October 18, 1886, you reported, in response to office letter of October 4, 1886, that, although you had no evidence in your office showing that plaintiff received notice of your several actions in dismissing his contest and allowing defendant to purchase land, yet such notice was evidently sent to him at his post-office address, Grinnell, Kansas, inasmuch as it was the invariable custom of your office to so notify contestants. Upon this you were directed by office letter of October 30, 1886, to notify plaintiff that if he could show by his own affidavit and that of his attorney of record that he never received official notice of your decision, he would be entitled to file an appeal therefrom. October 28, 1887, you transmitted said affidavits, together with the appeal of plaintiff, and the counter affidavits submitted by defendant in support of his motion for the dismissal of the appeal. In plaintiff's affidavit and the affidavit of his attorney it is set forth by each that he never received any notice from your office of the dismissal of the contest. In the affidavits submitted by defendants two show that it was the invariable custom of your office to notify contestants of the dismissal of their contests on purchases like the one in question, and two set forth that immediately after the dismissal and purchase herein, the plaintiff was personally and verbally advised by one McGraw and the local officers of the said decision of your office. Such a notice both he and his attorney swear as aforesaid they never received, and as before shown there is nothing in the record disproving their claim.

Upon this evidence you held that the appeal was properly before you. You also held that the proof of abandonment was sufficiently shown, and canceled both homestead entries and held defendant's cash entry subject to contestant's preference right.

From this decision Catherine L. V. Davis, third transferee from the original entryman, now appeals to this Department.

Comparing the statement of facts as set forth in your office decision with the record before me, I find it is substantially correct, with this exception: instead of two affidavits setting forth personal and verbal notice to plaintiff, I find but one, and that was made by E. A. McMath (instead of McGraw), and stated in substance: "That contestant, shortly after the dismissal of his contest, had told affiant that he had been informed by his attorney that his contest had been dismissed, and that he had then gone to the local office, and the receiver had also informed him of this fact; affiant also states that on the day the cash entry was allowed, he, affiant, informed contestant's attorney of the dismissal of the contest and allowance of the entry."

From this it satisfactorily appears that no notice of the dismissal of his contest was ever properly served upon him. Practice Rule 44 requires such notice to be in writing, and to be served personally or by registered letter through the mail. Notice sent by unregistered letter

(Johnson v. Miller, 8 L. D., 477; The case cited by appellant (New

is insufficient evidence of service. English v. Noteboom, 7 L. D., 335). Orleans Canal and Banking Co. v. State, 5 L. D., 479) is not in point. In that case notice was sent by unregistered letter to the counsel of the bank, and it was held to be sufficient, for the reason that he admitted that he received it. There is no such admission in this case; on the contrary, both contestant and his attorney deny ever receiving any kind of notice, and the only evidence tending to show that notice was sent to contestant is the affidavits referred to, showing that it was the invariable custom of the office to send such notice through the mail, by unregistered letter. Notice verbally given, as testified to by McMath, can not be held sufficient, as the Practice Rules nowhere provide for verbal notice, nor should they. The appeal was therefore properly before the Commissioner.

The next point insisted on by counsel for appellant is that

No personal service of notice of contest was ever made, and no sufficient affidavit was made for constructive service by publication, the affidavit making no showing of any effort to make personal service, as required by rule eleven (11).

This objection goes to the root of the whole matter, for if it is sustained, the local office had no jurisdiction, in other words there was no contest pending and the cash entry was properly allowed. That part of the affidavit of contest which has relation to service is as follows: "That said De Haan is not a resident of the State of Kansas, that personal service can not be obtained.”

Counsel for appellant contends that this is insufficient to authorize service by publication, because the affidavit does not show thereby that he made any effort to procure personal service on the defendant, as required by rule 11 (rule 12 then in force). This rule is as follows:

Notice may be given by publication alone only when it is shown by affidavit of contestant and by such other evidence as the register and receiver may require, that due diligence has been used, and that personal service can not be made. The party will be required to state what effort has been made to get personal service.

It is quite plain that this rule contemplates two classes of cases: 1st. Notice by publication to the entryman when he is a non-resident of the State.

2nd. When the entryman is within the State but absconds, or so conceals himself that personal service can not be made upon him. Under this rule, in the latter case, before the contestant is justified in resorting to service by publication, he must set out the facts showing what effort has been made to obtain personal service, so the register and receiver may determine whether or not he has used due diligence in such a degree as to justify them in allowing him to proceed to obtain service by publication.

It will be observed that the "diligence " used, and the "effort" made, which must be shown, are "to get personal service." If the party is not a resident of the State, no diligence or effort can "get personal service." The rules of practice pertaining to the same matter must,

like different sections of the same statute, be construed together, so as to give effect to all, if it is possible to do so.

Rule 9 (then rule 10) is as follows:

Personal service shall be made in all cases when possible, if the party to be served is resident in the State or Territory in which the land is situated, and shall consist in the delivery of a copy of the notice to each person to be served.

From this rule it is equally plain that personal service is not required to be made, if the party to be served is not a resident of the State or Territory; why, then, should diligence be shown to make personal .service where such service is not required to be made.

I think these two rules can be reconciled to this construction. Rule 9 provides for personal service, when possible, on residents of the State or Territory. Rule 10 provides for the execution of such notice.

Rule 11 provides for a different method of service when personal service is impossible, i. e., by reason of non-residence or because the party can not by diligence be found. Its meaning will be readily understood, if we prefix the following, to aid in its construction, to wit: Though personal service is required when possible on all persons resident of the State or Territory, yet notice may be given by publication, etc. Numerous decisions of this Department have been made in which it is held, that an affidavit alleging that after diligent search the residence or whereabouts of defendant can not be found or ascertained, or that personal service can not be made upon the defendant, and many other allegations to the same effect, are insufficient, that the plaintiff must show, as required in rule 11, what efforts he has made to get personal service, but no decision has come under my observation, after careful research, in which it is held, when the affidavit contained the positive allegation, as in this case, that the defendant is not a resident of the State, that plaintiff must also set forth what effort he has made to obtain personal service. Such a requirement would seem absurd, for, as said before, whence the necessity to show an endeavor to do something not required to be done. The allegation "that the defendant, is not a resi dent of the State," is the statement of a fact, and the reasons why the contestant knows it is so need not, in my judgment, be stated. It adds nothing to the strength of the statement of fact. In Bone v. Dickerson's heirs (8 L. D., 452), the affidavit was that "J. Frank Dickerson has failed and his heirs or legal representatives have failed to plant or cause to be planted five acres of trees, tree seeds, etc., ... and that the said Frank Dickerson has been dead for at least two years last past. Upon this affidavit notice was issued by publication to the heirs. of J. Frank Dickerson. Ernest C. Dickerson, testamentary devisee, appeared by counsel and moved the dismissal of the contest for want of notice. The local officers overruled the motion, and found for contestant. On appeal to your office, their decision was affirmed on the ground that the defendant being a non-resident, the notice was suf ficient.

On appeal to this Department the decision of your office was reversed,

and one of the reasons stated in such reversal is, because the affidavit did not show that "due diligence had been used, and that personal service could not be made."

It will be observed that the affidavit in this case does not, as in the case at bar, state that "defendant is not a resident of the State," therefore, as it did not show that contestant had used due diligence to make personal service, it was clearly not sufficient to authorize notice by publication, and the fact as found by the Commissioner, that the defendant was actually a non-resident, did not cure the error, for, as has been repeatedly held by this Department, the affidavit must show on its face all the facts necessary to authorize the service of notice by pub. lication, or no jurisdiction will be conferred upon the local officers.

In Allen v. Leet (6 L. D., 669), cited in the foregoing case, the affidavit alleged that "he had made due and diligent search for Dexter Leet and that he can not be found nor heard of, and that personal service of notice of this contest can not be made on said defendant in the State of Nebraska." All of which might be true and still the defendant be a resident of the State of Nebraska, for he might have absconded or con cealed himself so that personal service could not be had upon him. This affidavit is therefore not equivalent to an allegation of non-residence, and it was properly held to be defective.

I find therefore that the affidavit in this case was a compliance with the rule, and was sufficient to authorize publication of notice of contest. The record also satisfactorily shows that contestant mailed a copy of the notice by registered letter to the last known address of claimant at least thirty days before the hearing, and that a like copy was posted in a conspicuous place on the land for at least two weeks prior to the day set for hearing, and as the provision requiring the same to be posted in the register's office during the period of publication was not in force at the time the contest was initiated, all the requirements of the law necessary to give jurisdiction to the register and receiver seem to have been complied with. The contest, then, having been properly initiated prior to the cash entry of De Haan, such entry was improperly allowed, under the act of June 15, 1880 (21 Stat., 237).

As this case had not been finally adjudicated at the rendition of the decision of the case of Friese v. Hobson (4 L. D., 580), it falls within the purview of that decision, which is again followed by Roberts v. Mahl, 6 L. D., 446, and Arnold v. Hildreth, 7 L. D., 500.

The evidence abundantly shows that at the time of the initiation of the contest the defendant had abandoned his entry, and taken up his permanent residence in Oregon, many hundred miles distant. The good faith of contestant is clearly shown by continued residence on the land and improvements, amounting to more than fifteen hundred dollars. The contest will therefore be sustained, and cash entry No. 1122 will be suspended to await final action on contestant's application to exercise his preference right.

The decision of your office is affirmed.