DISSENTING OPINION
Bland, Judge:I agree with much that is said in the majority opinion but I disagree with some of the statements of fact mentioned in the majority opiuion and with the conclusion reached.
If the affidavit filed by Mary Rehan had stated all the facts which were stated in oral argument, I can see no possible reason why the court should not have sustained the motion to set aside the submission and the decision and have placed the case upon the calendar where the protest could have been amended in accordance with law, and thereby do justice to the parties. My difficulty in agreeing with the position of the majority arises from what I believe to be fatal defects in the affidavit. I do not think it is sufficient to say that the submission was made through error. While under the circumstances *287It might have been regarded as sufficient by the court below, it is not sufficient for me to agree that the court has abused its discretion in refusing to set aside the submission and decision upon such a showing. If I had been in the position of the, trial court, and nothing more had appeared to the contrary than the facts set up in the affidavit, I would have regarded it as sufficient to have caused me to set aside the submission and decision. But, under- the circumstances, I am unwilling to agree that the court abused its discretion.
The trial court has the right to require that the attorneys who practice before it not only show diligence and close application to their duties in the court, but to require of them that when they seek to set aside its judgments they shall make a showing which eliminates the probability of lack of diligence.
I would like to agree to granting, relief in such cases of glaring injustice to litigants as is obvious in the case at bar, but I know of no way to do it except by setting a precedent which may lead to consequences of far graver import.
The burden of the Government’s argument is to the effect that the filing of the stipulation to submit waived the right to amend. Of course it waived the right to amend if intentionally filed, but if the showing was sufficient to convince the court that the submission which brought the stipulation before the court was unintentional and excusable, the submission should have been set aside, in which instance there would be no waiver of the right to amend.
I do not agree with the contention of Judge Lenroot in his dissenting opinion to the effect that the court could not set aside the stipulation at the request of appellant because the interests of the Government were at stake as well as those of the appellant. The court had a right to set aside the submission which temporarily set aside the stipulation. In any further proceedings in the case the stipulation might have- the effect which Judge Lenroot contends for, but if the' submission were set aside, and it should, have been set aside upon a proper showing of inadvertence, the stipulation would have remained in abeyance. The stipulation was only intended to control when submitted. If the submission of the case, containing the stipulation was an inadvertence and was set aside, the stipulation contained therein could not operate to make such submission irrevocable.
Furthermore the majority opinion states:- “It plainly appeared from the affidavit, at the time the motion was- overruled, that the cause had never been submitted with the intelligent consent of counsel for appellants.” I do not- think the affidavit showed any such state of facts. It did show that the affiant, who was away from New York at the time the inadvertence probably happened, believed that the papers had been put back in the files so as to be properly placed upon the docket so that the motion to amend could *288be made. It does show that through error the protest was submitted, but it does not say through whose error nor how the error was “made, whether under inexcusable or excusable circumstances. It does not show that some other member of the firm of able lawyers representing the appellants might not have intentionally brought about the submission. It is not sufficient for one member of a firm to say “I did not know,” when the other members of the firm all might have known, and it is not enough for the one member of the firm who ought to have known to cover the whole field by saying that it was submitted through error.
I very reluctantly disagree with the majority opinion because I feel as the majority do that the appellants might have been treated by the court below in such a way as to have brought about a result more in accordance with justice, but I am not willing to hold, under the circumstances, that the trial court abused its discretion.