Brown v. Merchants' Marine Ins.

GILBERT, Circuit Judge, after making the foregoing statement of the facts, delivered the opinion of the court. It is contended that the appeal was not taken in due time, for the reason that the order of court substituting the appellant for the first intervenors was not filed with the clerk of the court until March 16th, which was two daj^s after the expiration of the time for appealing. But that order, although it was filed on March 16th, was made on March 13th, and on that day it was served on the appellees. We cannot see that its validity was affected by the fact that it was not filed with the clerk until the 16th. Should the appeal be dismissed for the reason that the notice of appeal was served on the appellees only, and not on the first inter-venors ?' The petition upon which the order of substitution was made, presented to the District Court the fact that certain of the. first in-tervenors had assigned their interests to the appellant, and that the remainder, while they had not executed an assignment, had, for an agreed consideration, which consideration was thereafter duly tendered them, agreed to assign their interests, and had through their attorneys telegraphed the appellant as follows: “Be subrogation Kingston. We cannot sign document presented to-day. Will only sign document referring specifically to subrogation and right of appeal.” The petition alleged, further, that the said remaining intervenors “have at all times agreed to transfer their interest in the subject-matter of the litigations herein referred to to your petitioner.” The petiton shows, in brief, that as to those of the first intervenors which had not made an actual assignment to the appellant, an understanding had been reached with the appellant, whereby he was to represent them on the appeal. They had declined, it is true, to sign the transfer which had been presented to them, but they expressed their willingness to sign a document which would authorize the appellant to represent them on the appeal. We think they are therefore represented by the appellant. They do not appear denying such rep *87 resentation, or questioning the authority of the court to proceed with the appeal. The trial court found the petition sufficient to sustain its order of substitution, and no motion was made in that court to set the order aside. It is not ground for dismissal of the appeal that the evidence on which the decree was rendered is not presented to this court. The motion to dismiss calls in question the jurisdiction of this court to deal with the subject-matter of the appeal. The only questions we can consider must relate to the issue whether the appeal was properly taken and perfected. We find no ground for its dismissal. The motion is denied.