From the procedural side, the petitioner's right to intervene depends upon General Admiralty Rule No. 34 (28 USCA § 723), which seems rather clearly to have reference only to cases where the res is in court. It has been so construed. The Flush (D.C.) 274 F. 133; Bennett Day Importing Co., Inc., Compagnie Francaise de Navigation a Vapeur (D.C.) 42 F.2d 295.
In Ex parte Indiana Transportation Co., 244 U.S. 456, 37 S. Ct. 717, 718, 61 L. Ed. 1253, the Supreme Court held that it was error to entertain jurisdiction of intervening petitions by the administrators of seaman who had been killed in a collision after the vessel had been discharged from arrest by a stipulation to answer the demands of the libel. The court said: "But appearance in answer to a citation does not bring a defendant under the general physical power of the court. He is not supposed, even by fiction, to be in prison. Conventional effect is given to a decree after an appearance because when power once has been manifested, it is to the advantage of all not to insist upon its being maintained to the end. Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S. Ct. 550, 57 L. Ed. 867, 874. That, however, is the limit of the court's authority. Not having any power in fact over the defendant unless it can seize him again, it cannot introduce new claims of new claimants into an existing suit simply because the defendant was appeared in that suit. The new claimants are strangers and must begin their action by service just as if no one had sued the defendant before. The Oregon, 158 U.S. 186, 205, 210, 15 S. Ct. 804, 39 L. Ed. 943, 952, 953."
If the action in personam (Hall, next friend of Mann's, No. 37 of 1917) were still pending, the question of the effectiveness of the settlement and release to bind the minor, argued at length by the petitioner, might be of importance. But that action has been discontinued long ago, and this attempt to intervene is in an entirely different action.
The conclusion is that the petition must be dismissed, first, because the record discloses that the petitioner has no substantive right of which the court could take cognizance; and, secondly, because the res not being in court, the court has no jurisdiction to entertain the petition.
It being conceded that a settlement was actually effected, the petition of the libelants, respondents, cross-libelants, for an order directing the clerk to make the suits "discontinued, settled, and ended," is granted.
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