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the filing of the Kohnyo claimant of its election to retain the northerly tract and relinquish the other, June 14, 1898; or upon the formal cancellation of the entry July 15, 1898.
Nevertheless it is further contended that the proceedings in the Land Department between May 28, 1895, and May 7, 1898, did not suspend the operation of the decision of the Commissioner of May 28, 1895, and since by that order the Kohnyo's applicant was required to make its election within sixty days from that date, as to which end of the claim it would retain and patent, in default of which election the entry of the scutherly portion became cancelled, and the Kohnyo's claimant did not make such election until June, 1898, that the entry became cancelled as to the ground in controversy, at the expiration of sixty days from May 28, 1895, and thereupon the tract reverted to the public domain. The Land Department ruled otherwise. It treated the order of May 28, 1895, as suspended during the intermediate period, while the proceedings as to the knowledge of the placer claimant of the existence of the Kohnyo lode were pending. Manifestly because if it was known by the placer applicant at the time of application for the patent that the Kohnyo vein extended through the placer ground, then the vein did not pass by the patent, and the Kohnyo's claimant might be entitled to patent both ends of its claim, embracing the vein and a strip through the placer location.
And when on July 15, 1898, the Department cancelled the Kohnyo entry as to the tract in controversy, it was declared that: "In view of the fact that no motion for a review of the departmental decision of May 7, 1898, affirming the decision of this office of May 28, 1895, was filed within the time prescribed by the rules of practice, the decision last mentioned became final, and it now devolves upon this office to execute the same."
The election, then, by the Kohnyo claimant, filed in the Land Office June 14, 1898, was an abandonment of the south seven hundred feet of the Kohnyo claim, which took .effect eo instanti. Lindley, $$ 642, 643, 644; Derry v. Ross, 5 Colo
rado, 295, 300. This was voluntarily done, and took effect notwithstanding the receiver's receipt had not been formally cancelled. The order of cancellation of July 15 simply recorded a preëxisting fact, and did not change the effect of the previous abandonment. By reason of that abandonment the southerly tract, for the first time, reverted to and became a part of the public domain. And as the Hobson's Choice was the first location of the ground made after such abandonment, it follows that it was valid, and that its owner was entitled to a decision in its favor.
We again state the dates of the respective locations. The Scorpion was located May 13, 1898. The Hobson's Choice was located June 23, 1898. The location of the P. G. was July 16. Thus it is seen that the Scorpion was attempted to be located at a time when the premises were not subject to location; that the Hobson's Choice was located when the premises had reverted to the public domain; and that the location of the P. G. was after that date.
We have accepted the rulings of the Land Department that the Kohnyo location covered the southerly as well as the northerly end of that claim. Such was the decision of May 28, 1895, and that of the Secretary of the Interior of May 7, 1898, and the formal cancellation of July 15, 1898. In this separate distinct proceeding counsel cannot challenge these rulings. The attack is collateral and cannot be entertained. Steel v. Smelting Company, 106 U. S: 447; Smelting Company v. Kemp, 104 U. S. 636. True those decisions refer to instances where the patent had issued, but the principle of freedom from collateral attack is equally applicable where final entry has been made. The final certificate issued by the receiver after the submission of final proof and payment of the purchase price, where such is required, has been repeatedly held to be for many purposes the equivalent of a patent. We are advised in argument that the patent was issued, but it is objected that though such may be the fact it is not so stated in the facts agreed. The cancellation of the entry of the seven hundred feet did
not rest on any defect in the original location. On the contrary, the Land Department held the proceedings sufficient to entitle the Kohnyo claimant to proceed to patent for this particular tract if it should so elect. It was only when the Kohnyo claimant abandoned that tract by making its election that it waived its right to patent it, and permitted the receiver's receipt to be cancelled to that extent.
That cancellation did not itself operate to restore the southerly tract to the public domain, which had already taken place by the action of the Kohnyo claimant in compliance with the judgment of the Land Department.
We concur in the conclusions of the Supreme Court of Colorado, and the judgments are
AMADEO v. NORTHERN ASSURANCE COMPANY. AMADEO v. ROYAL INSURANCE COMPANY.
SAME v. SAME.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT OF PORTO RICO.
Nos, 199, 200 and 201. Argued March 8, 1906.-Decided April 2, 1906.
Royal Insurance Co. v. Miller, 199 U. S. 353, followed to effect that, in
the absence of express legislation affecting Porto Rico, the law prior to the extension of the Civil Code thereto in 1889 concerning limitations of personal actions, is that generally prevailing under Spanish law and in these cases on insurance policies, the loss under which had occurred prior to 1889, the twenty-year term applied and not the fifteen-year
term applicable under the Civil Code after its extension to Porto Rico. A party having no legal interest in maintaining or reversing a judgment
is not always a necessary party to writ of error or appeal, and if the defendant has pleaded below that a party plaintiff has no interest in the cause of action, having assigned the same, and as a result of such plea the assignee has been substituted, the defendant cannot assert in this court that the original plaintiff was more than a nominal party, and the writ will not be dismissed on account of his death and failure to give notice to his succession.
Argument for Defendants in Error.
Objections as to forms of writ of error not taken below will not be enter
tained here to defeat the jurisdiction of this court—and an amendment bringing in a corporation in liquidation as assignee of the party plain
tiff held, under such conditions, to bring in the liquidator also. Although irregularities may exist in appeal bonds, if the cases are sent
back for further proceedings no order need be entered here regarding them.
The facts are stated in the opinion.
Mr. Fritz v. Briesen, with whom Mr. Charles M. Boerman was on the brief, for plaintiffs in error:
The period of prescription on an action on a policy of fire insurance, accruing in 1885, is twenty years. Royal Insurance Company v. Miller, 199 U. S. 353. The decision in that case is controlling and these cases must be reversed.
Antonio José Amadeo is only a nominal plaintiff. He, or his estate, has no further pecuniary interest in this litigation. This is a fact adınitted upon the record by both sides. The policies and the proceeds thereof have been assigned to the firm of Pastor Marquez Company, in liquidation, one of the plaintiffs in error, as shown by the record.
The death of one of several appellants or plaintiffs in error does not abate a suit, nor necessitate a revival of it in the Appellate Court. The cause survives to, and may be prosecuted by, the other plaintiffs in error. 2 Cyc. 771; 5 Ency. Pl. & Pr. 815; McKinney v. Carroll, 12 Pet. 66, 71; Moses v. Wooster, 115 U. S. 285; Palmer v. Davis, 28 N. Y. 242.
Amadeo was a proper party, but he was not a necessary party, and his representatives need not intervene. If he was an unnecessary party, the court below may be ordered to strike his name from the title of the suit, leaving only the Pastor Marquez Company, the real party in interest.
Mr. Frederic D. McKenney, with whom Mr. Francis H. .Dexter and Mr. John Spalding Flannery were on the brief, for defendants in error:
The writs of error in these cases should be dismissed for manifest irregularities, both in form and in prosecution.
Argument for Defendants in Error.
201 U. S.
Amadeo having died subsequent to judgment, and before any writ of error was sued out, no valid writ of error could thereafter be sued out or prosecuted in his name, and assuming that “The Pastor Marquez Company” was otherwise authorized and competent to seek relief in this court, it could only do so in this case after notification to the succession of the de ceased. It appears from the pleadings that Pastor Marquez Company was in liquidation, and that Pedro Salazar was the liquidator. Under the Spanish law as under English common law this action, in so far as in favor of Pastor Marquez Company was and is concerned, could only be maintained in the name of the liquidator.
While the absence of an appeal bond or the failure of the trial judge to note his approval thereon will not render the writs of error void, still the filing of duly approved security is prerequisite to the prosecution of such writs in the appellate court.
Passing the irregularities in the matter of the appeal bonds, which, in so far at least as the absence of the approval thereof by the district judge is concerned, might be corrected in this court, Seymour. v. Freer, 5 Wall. 822; Dodge v. Knowles, 114 U. S. 430; Stewart v. Masterson, 124 U. S. 493; Beardsley v. Arkansas &c. Co., 158 U. S. 123, the defects in the writ of error are irretrievable.
As Amadeo was dead at the time the writ of error was prayed for and issued, the suit, as to him, abated, subject to be revived only upon compliance with the statutory requirements, sec. 9, act of March 3, 1875, 18 Stat. 473, or the rules of this court.
Amadeo, originally the sole plaintiff, by amendment to the declaration was made joint plaintiff with “Pastor Marquez Company, in liquidation," of which Pedro Salazar was the liquidator. Amadeo having died, his legal representatives or successors alone had the right to prosecute an appeal in the interest of his estate. The failure of his representatives or successors to appeal or sue out a writ of error did not authorize his co-plaintiff to wage the writ on his behalf or in his interest or that of his succession, nor can such co-plaintiff' prosecute