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: 12
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250 FEDERAL REPORTER
And in speaking of the case of Mason v. United States, supra, the
"In Mason v. United States, 136 U. S. 581 [10 Sup. Ct. 1062, 34 L. Ed. 545],
the application to amend being made more than two years after the entry of
the judgment, and the omitted parties being in no way in court, the application
was denied and the writ of error dismissed."
In the case of Estis v. Trabue, cited by the court at the end of the
extract just quoted, the writ of error was dismissed more than three
years from the date of the final decree, the omitted parties were not
before the court, and the court had lost jurisdiction to compel their in-
voluntary appearance. In the case of Inland & Seaboard Coasting
Company v. Tolson, 136 U. S. 572, 10 Sup. Ct. 1063, 34 L. Ed. 539, the
application to amend came when the time for suing out a second writ
of error had expired. The application was for leave to amend by
inserting the names of the omitted parties as plaintiffs in error, and
this implied authority to appear for them in the counsel for the original
plaintiffs in error, who made the motion to amend. In that case there
was nothing in the "appeal papers" from which the amendment could
be made, and consequently the cases of Moore v. Simonds, 100 U. S.
145, 25 L. Ed. 590, and Knickerbocker Insurance Company v. Pen-
dleton, 115 U. S. 339, 6 Sup. Ct. 74, 29 L. Ed. 432, did not support
the right to amend. Yet the Supreme Court granted the motion, al-
lowed the amendment, and reinstated the case on the docket with the
new plaintiffs in error.
From the facts of the case of Inland Company v. Tolson, we must
conclude that, where the omitted parties voluntarily appear before the
appellate court and submit themselves to its jurisdiction, the amend-
ment will be permitted, even though the time for suing out a writ of
error or appeal had expired, and even though there is nothing in the
appeal papers by which the amendment could properly be made. In
this case, also, the time for taking an appeal had expired before the
application to amend was presented to this court, and there is noth-
ing in the appeal papers by which the amendment could be made. It
is also true, however, that in each appeal the application to amend is
accompanied by the voluntary appearance of the omitted party in this
court, and its waiver of citation, and its application to be allowed
to join in the prosecution of the appeals. We think this case comes
within the facts of the cases of Inland Company v. Tolson, and Gilbert
v. Hopkins, 198 Fed. 849, 117 C. C. A. 491, in the Fourth Circuit, and
Rinmger v. Puget Sound Electric Company, 220 Fed. 419, 136 C. C.
A. 43, from the Ninth Circuit, and is to be distinguished, in the re-
spect mentioned, from the cases of Estis v. Trabue, Mason v. United
States, and Dolan v. Jennings, supra, and that the application to amend
should be allowed, and the motion to dismiss the appeal, if and when
the amendment is made, be denied.
 Coming to the merits, the case arose out of a collision between
a dredge of the appellee, the Bowers Southern Dredging Company, and
a barge, belonging to the Sun Company, named the Pittsburg, and two
tugboats of the D. W. Ryan Towboat Company, Incorporated, the
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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/m1/27/: accessed October 16, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.