“ While the land was public and subject to entry under the homestead law, Edwards, a qualified applicant, made a homestead entry of it and afterwards submitted final proofs in due course. Bodkin instituted a contest against the entry and obtained its cancellation by the Land Department. The land officers then permitted Bodkin to make a homestead entry of the tract, afterwards allowed him to relinquish that entry and make others of the same tract under soldiers' additional rights of which he was the assignee, and finally patented the tract to him. ”

“ Besides it does not contain all the evidence that was before the courts below, a part having been omitted under the appellant's specification of what should be included. In these circumstances, to retain the case for oral argument in regular course would result in harmful delay, and serve no useful purpose. ”

“ Bodkin then took a further appeal to this court, the decision of the Circuit Court of Appeals not being final under section 128 of the Judicial Code (Comp. St. § 1120) .
The appellee, Edwards, now moves that the appeal be dismissed, or in the alternative that the decree be affirmed, under rule 6, 222 U.S. Appendix, p. 10, 32 Sup. Ct. v. The appellant, Bodkin, although served with the motion and supporting brief, has not presented any brief in opposition.
The motion to dismiss must be denied, and the one to affirm sustained. The case as presented here turns essentially on questions of fact. ”