Wessington Springs herald. (Wessington Springs, Aurora County, Dakota [S.D.]) 1883-1891, 1884-02-15

OF course every one in this rir: OF
The land district is anxious to know
Just what the Tt1ling is so we append
.he1ull Letter OF the acting commission
crs in regard thereto as follows:
! DEpAEq4ENT OF THE INTERIOR,
GENERAL LAND OFTICF.
WASHINGTON. L. C.. Jan. 18th, 1854,
Register NJ Receiver, Land Office,
Mitchell, /. z;
Gentlemen:-Gn the 10th ult., a let
Ter was addressed by this Office to MIR.
aI. a. Butte, FIELD of Montrose, ID. T., in
which tie following paragraph mad
fertently appeared.
The code IA Dakota authorizes the
Judge Of q District Court, to appoint a
clerk in each q The counties Of his dis
trict who sAall procure and keep & seal
Of the court Of such county. In coun-
ties which are attached to others for ju-
.licial purposes, but which have a clerk
If the District Court, final proof IN
support Of homestead and presumption
slams may BE made before such clerk,
at his office, notwithstanding no court
may be held in said county"
The provisions of the Dakota code
sre not fully stated in the foregoing
paragraph, and The opinion expressed
IN the concluding aentence is erroneous.
The same IS Therefore hereby RECALLED
and revoked.
The act { 4arch 81, 1877 % stat, 4o3)>
provides ttF}t final proof in homestead
cases naay he made before the Judge or
in his ai'serca before the clerk of any
court OF record. OF the county and state
TT distric, .nd territory in which the
lands are a;tuated, and if said lands are
IN an unoTg 2nized county, the proof
NAY be made in a similar N in
any adjaeoDt county in the same state
5r territory. This statute furnishes
the only authority by which final home
stead afi4ayits and proofs can be made
before any other officer than the Regis
fer and Receiver. The privilege is re-
stricted to the Judge Of a court of re-
cord WITH the alternative privilege OF
going before the clelk Of such court in
the absence of the Judge ot that court.
Obviously a Judge can be officially ab-
sent only from the place where the
court is held and only from his office or
the court. He cannot be deemed to be
absent il the sense Of the law from a
or -,llI,l No l~1,3, no .@,,r FTl-
clerk Who in the absence of the Judge
may tese final afidavits and proofs il
homestead cases is therefore a clerk OF
court, having his Office at the place
where.a -erm Of court is holden anc
having and exercising the authority
and functions of the clerk Of that court
When several counties are embraced
in q judicial district, and the court TO.
the district is holden in one of the coun
ties only, 1t is only the clerk Of the dis
trict court having his office and per
forming his duties at the judicial seat
II that county who can take such aft
davits and proofs in his capacity a
such clerk, and then only when tn
Judge is absent. If there are courts @
record in the remaining counties othe
than the district court. then the cler]
Of such Other Court in the absence Q
the Judge of that court may DO SO, bu
if there is only one district court in
judicial district, there is but one cler
of q district court who can so act il
that district, no matter how man:
counties the district may embrace.
The Territorial Code of Dakota at
thoriEes the appointment Of a clerk G
the district court in each of the coun
.fieS Of a district, who has power to pei
from allthed duties pertaining tosuch OF
ice when q court is appointed in tina
county, butuntn then hehasn no author
.ty to exercise such powers, and accort
.,nglv IS not the clerk who is authorize
.by theact Of March3, 1877, to take proof
IN Homestead cases in absence of tn
Judge.
The act Of june 8. 1850, (21 Stat, 16e
authorizes presumption aftidavits, an
inc alluaNlI In c"OlllnuLeu nOnleSte1
cases, to be maize before the. clerk {
The county court, CT CT any court Of ]
cord Of the county and State or distri
arc Territory in which the Ian,
are situated, and ii the lands are in {
~1lnorganized county such aftidavits M;
he made in a similar manner in any a
iacert county in the same State or re
ritory.
The clerk who. can take these affid
wits is the clerk ro4s {J1he court authorize
q perform all the duties Ct such offic
Wien LAW of the United States ell
powers q designated officer to take at
'layits and proofs in public. land case
It is the responsible officer having Il
authority and exercising the function
of the designated position who is Il
officer SO empowered and not one WI
does not possess such authority nor G.