187 P. 51 | Cal. Ct. App. | 1919
This is an appeal from a judgment. The issue framed by the pleadings, and a full discussion thereof, may be found in the opinion filed on a former appeal taken in this case (
At the trial of the case on its merits a transcript of the proceedings and all the evidence adduced before the Land Department was introduced. From this evidence it appears that the Land Department did not decide that a desert land entryman must personally do the work required by law, nor that a desert land entry could not be assigned. Moreover, the defendant introduced no evidence to sustain the allegation of his cross-complaint that the plaintiff and said Jordan had conspired to deprive him of the land; and the trial court found that there was sufficient evidence introduced at the hearing before the Land Department to prove the allegations of the contestant's affidavit, and, accordingly, that defendant had done none of the work on the land required by law, and that the final proof introduced by defendant was fraudulent.
[1] A decision of the Land Department of the United States upon any question of fact, in determining the right of any person in respect to the public lands under the laws of the United States, is conclusive upon all other tribunals in the absence of fraud, mistake or imposition. (Sanders v. Dutcher,
In the former appeal the supreme court did not decide that the facts stated in the affidavit of contest were not sufficient, or that the entry of defendant's assignor could not have been canceled on grounds not alleged in such affidavit. There is no law of the case, therefore, requiring this court to so hold. Nor, in fact, was the affidavit insufficient; but even if it were, the affidavit is regarded as only a preliminary process, and the rules of practice require it as an evidence of good faith, and contests have been allowed where the affidavit was admittedly defective, or where no affidavit *629 at all was filed. (Gage v. Gunther, supra; Seitz v. Wallace, 6 Land Dec. 300; Saunders v. Baldwin, 9 Land Dec. 391.)
The judgment is affirmed.
Waste, P. J., and Richards, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 2, 1920.
All the Justices concurred.