The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 11
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THE MARY B. CURTIS
tion to dismiss is whether the Lion Bonding & Surety Company was a
necessary party to the appeals.
On this question, we are unable to distinguish this case from the
case of The Bylands, 231 Fed. 101, 145 C. C. A. 289, which, upon the
authority of Estis v. Trabue, 128 U. S. 225, 9 Sup. Ct. 58, 32 L. Ed.
437, and Ex parte Sawyer, 21 Wall. 236, 22 L. Ed. 617, held the sure-
ty, upon a like stipulation, to be an indispensable party to the appeal,
and one that should either be joined in the appeal or a severance effect-
ed, and the surety notified of the taking of the appeal. As that case is
the law of this circuit, and as the Supreme Court denied a certiorari
in it, we feel bound to follow and apply the rule there announced to
 Each of the appellants have filed motions to amend the petition
for appeal, and the citation, by making the Lion Bonding & Surety
Company a party thereto, and for leave to file an amended appeal
bond. The Lion Bonding & Surety Company has also appeared in this
court, and waived the issuance and service of a citation, and moved for
leave to join in and become a party to each of the appeals. The second
question presented by the motion to dismiss is whether the appellants
should be here allowed to amend their appeal by making the Lion Bond-
ing & Surety Company a party to it, upon its appearance and waiver
of citation and offer to join in the appeal and become a party to it.
In ruling on this motion to be allowed to amend, we are confronted by
what is apparently an irreconcilable conflict in the rulings of the Su-
In the case of Estis v. Trabue, 128 U. S. 225, 9 Sup. Ct. 58, 32 L.
Ed. 437, the Supreme Court seems to have held that the omission to
make the surety a party to the appeal was jurisdictional and could not
be amended in the Supreme Court, though no application to amend was
submitted to the court in that case. In the case of Inland Coasting
Company v. Tolson, 136 U. S. 572, 10 Sup. Ct. 1063, 34 L. Ed. 539,
the Supreme Court, having dismissed the writ of error because of a
similar defect on the original hearing, upon rehearing granted a motion
to rescind the judgment of dismissal, to restore the cause to the dock-
et, and to amend the writ of error by inserting certain parties as plain-
tiffs in error, and upon amendment the cause was ordered returned to
the docket. In the case of Mason v. United States, 136 U. S. 581, 10
Sup. Ct. 1062, 34 L. Ed. 545, an application to amend a writ of error,
by adding omitted parties as plaintiffs in error or for a severance of
such parties, was denied, and the writ of error dismissed for the defect
in parties, without discussion. In the case of Dolan v. Jennings, 139
U. S. 385, 11 Sup. Ct. 584, 35 L. Ed. 217, the Supreme Court held that
a failure to join a necessary party in the appeal, or to effect a sever-
ance, was fatal to an appeal considered four years after the final de-
cree, and when the omitted party did not voluntarily appear before the
court and submit himself to its jurisdiction. On page 387 of 139 U. S.
(11 Sup. Ct. 585 [35 L. Ed. 217]) the court said:
"More than four years have elapsed since the final decrees were entered,
and, as we have never had jurisdiction over the legal representatives of the
deceased complainant, it is impossible for us to obtain it now."
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/26/: accessed May 26, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.