Copland v. Waldron
| Decision Date | 10 October 1904 |
| Docket Number | 1,058. |
| Parties | COPLAND et al. v. WALDRON. |
| Court | U.S. Court of Appeals — Ninth Circuit |
This is a libel in personam by C. W. Waldron against George H Copland, George Morrill, and James Pirie. It is alleged in the libel that Copland, Morrill, and Pirie, as joint owners of the schooner Laurel, constructed with Waldron among other things, to carry upon said schooner a certain cargo of merchandise from Puget Sound, state of Washington, to Golofnin Bay, or Nome, Alaska; that the cargo was furnished accepted, and loaded on board; that the Laurel sailed and began her voyage, but that by reason of her unseaworthiness known to the appellants when they entered into the contract she failed to deliver the goods at the port of destination. The libel further avers that a considerable portion of the cargo was utterly lost, and that the remainder thereof was discharged upon the Colman Dock, in Seattle, where at the time of filing the libel it still remained. Copland and Morrill appeared, excepted, and answered; but Pirie, although served with process, did not appear, and his default was taken. The trial court, after receiving and considering evidence, rendered its decision in favor of the libelant, Waldron, and on September 23, 1903, made its decree 'that the said C. W. Waldron, the above plaintiff, do have and recover of and from the defendants, George H. Copland, George Morrill, and James Pirie, in the sum of $5,000,' etc. This decree was entered on September 26, 1903. On March 7, 1904, Copland and Morrill filed their petition for an order allowing an appeal, together with their assignment of errors. On the same day an order allowing an appeal by Copland and Morrill was obtained by them, and on March 21, 1904, notice of appeal by Copland and Morrill was served and filed, and a bond on appeal given by the same parties. The record fails to disclose that James Pirie is in any way joined in the attempted appeal, and it nowhere appears that he was ever in any manner notified to join, or severed for failure or refusal to join after notice or at all. Before this cause came on for hearing, the appellee moved to dismiss the appeal attempted by Copland and Morrill, who, on their part, on May 6, 1904, made a counter-motion 'for an order allowing amendment of the citation therein so as to include the name of James Pirie as a party to this appeal, or that the court direct a citation to be issued from the clerk's office of this court directing him (the said James Pirie) to appear in this court upon the hearing of this appeal. ' The motion to amend is based on the facts above stated, under the provisions of section 1005 of the Revised Statutes (U.S. Comp. St. 1901, p. 714), which reads as follows: 'The Supreme Court may, at any time, in its discretion and upon such terms as it may deem just, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying records, and in all other particulars of form: provided, the defect has not prejudiced, and the amendment will not injure, the defendant in error.'
S. D. King and G. Meade Emory (Frederick Bausman, of counsel), for appellants.
Charles Page, E. J. McCutchen, and Samuel Knight, for appellee
Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
HAWLEY District Judge, after making the foregoing statement, .
The motions herein made will be considered together. Appellants admit that the decree appealed from is joint, and that a joint decree should be appealed from by all, or severance made; that the fact that Pirie did not appear in the lower court furnishes no excuse for appellants leaving him out on the appeal; and that this court has the power to dismiss the appeal for want of his presence. But appellants claim that the contention of appellee that this court has no power to bring the omitted party in is not correct.
We are of opinion that the facts of this case bring it within the rule announced by the Supreme Court in Estis v Trabue, 128 U.S. 225, 229, 9 Sup.Ct. 58, 32 L.Ed. 437. After holding that a writ of error, in which the plaintiff and defendants were designated merely by the name of a firm containing the expression '& Co.,' was not sufficient to give the court jurisdiction, but, inasmuch as the record disclosed the names of the persons composing the firm, allowed the writ to be amended, under section 1005 of the...
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