ciding the,case, if within its jurisdiction,· hut if· not within its jurisdiction, the court'will administer such relief asmsy be in its power between the'phfties before it;· third, parties, without whom the court wpt not proceed with the case at' all. Shields v. Barrow, 17 How. 13Gi ljarney V,. Baltimore Oity, 6 Wall..284. The prayer pfthe bill in this case, as has boon stated, is for a recon· veyance by defendants to complainant of the land in controversy, and for an aC<lount'of'phosphates, if any,takenfrbm, or damages to, land. Now, can the right of complainal:lt'to have this decree be de::': termined withQut Cross as party? According to the bill, the deed made by complainaotto Cross, and by Cross to defendant, was merely formal, and for con\(enience in getting the title into defendants. While itseelIls he would be l!o' pJ.'oper party. thei court is not prepared to say that his presence is indispensable to grahting the relief prayed for. It appears acted :only as an intermediary between complainant and defendant, and that the real substantial issue is between the present partie/lto the bill. Conforming to the statute and equity rule above quoted, au:dto the decisions of thtLsupreme court on the subject, this is a case in which the c6urt should' proceed with the parties before it,and the demurrer on this last groundoannot be sustained. Fos. Feel. Pr.§ 50. See, also, Oonolly v. Wells, 33 Fed. Rep. 205, in which the decisions of the supreme court on the subject are collated. The demurrer in this (laSe will be overruled.
,CHAMBERLAIN ". BITTERSOHN.
(OCrcuit Oourt, D., South. CaroUna. 'November 4,1891.)
WRITS-SERVIC» 'OF PROCESS;.,-llIFlI'1CCT Oll AMENDMENT.
" on appearance motion. to set asIde the complamt for frQtn the Slll!lmons,.the aUo",s the summons to ,be amended so as 'to state that 00: default of answer pla\ntlff apply to the court," whereas be'fore it.reaa, "wHl take judgment against y6U, "the order allowing the amendment is defendant, and the original service will not be set aside because the copy served did not conform to the summons as amended.
At La.W. .On motion to set aside service of the summons· . ·,Mitchell &- Smith, for plaintiff. ;Northrop & Memminger, for'defendant.
SIMONTON, J. In this case the having been served with copysummobsand complaint, employed an attorney. Becoming satisfied for some reason, he changed his attorney, and employed the gentleman whQmnde thislIlotion. When the present attorneys under(lIl,Se"tpey entered a special appearance for the purpose of a mothe complaint "for in that it does not.conio;J;W-, .t9 This motion was heard· on. 21 st of OctQ>bel1j ,and
an order was made permitting an amendment of the summons in the particulars stated hereafter. On 27th October last the plaintiff's.attorney, in writing, informed the attorney for the defendant that the summons had been amended in the words ordered by the court. The amendmen t consisted in this: The notice following, and contained in the of an answer to the complaint ansummons, had stated that, in nexed'thereto, plaintiff" would take judgment against you." In lieu of these words, which were stricken out, were inserted the w()rds, "will .apply to the court." The motion now is to set aside the service of the summons on the defendant herein as defective for the reaSon that the copy does not conform to the original as amended. In other wor!is, the plaintiff amended the summons in the record. This amendment caused&. variance between it and the copy which .had been originally .served upon defendant. Beoause of this variance the defendant contends that the summons should be set aside. The copy summons served upon the defendant must be an exact reproduction of the origiI1 al summons. Its office is to let him know that 'a' complaiIit has been ods to or not, as he may be adbe filed against him, so that he may vised. In the present case the copy summons had fultilled'its office. :UpoI,1 of it thedefendant carne in, and, standing upon his summoved that the com'plaint be dismissed, because it did not respond with the summons; that is to say, the surnmonscalled for an. answer to the cotDplaint. The defendarttalleged that no answer couid be required becauseoftbe defect, and that the complaint should be di$.missed. His motion was heard and considered. The defect was recognized. The complaint was 'not dismissed. The court allowed aD. amendment, of the retlord, and the defect was cured. 'This being the case, theoomplaintstand(s, and the defendant must answer it or go by default. No further summons is necessary, nor is it necessary to serve any amended summons in the same action. The defendant did not require any noticeofthechange in the phraseology of the summons. The order of this court, made in a proceeding in which he was the adtive party, gave him full notice,and' all that that order:effected was the corThe defendant shall have ,lintH the rule-day in rection of the December next to make such defense as he may be advised.
Court. D. South.'CaroZi'Tl.ai Ootober 24, 1891.)
I. SAME-AMENDWBNT' OJ' .PROCESS; .. , " ' . " . . . B. ut aa.,th. .. fers. to ... . . ei Pia.in ...h.iOl1.·.isservedwit.h.it, thul giving ...t.w notice of the n.ture of the relief could not have. been prejudIced by the' defect; 'aDd th$' notice: ·tollye amended, under Rev. St. U. B. § 948 iVnelldmeni of pJ:'ocesi! :wnC!1l the' P6£$OO againat wb,oin it. is wued will .', llrejudi(l8.4 'i.' " .,:.. I':,,' ",.' - .- , : , "i,;: . ,: 1' 't -' : ,
Under Utiitea'states ciircuit coun.rUle,5for thed!stl'.ictot South Carolina, requiring a notieetO beaerved iIialloose8.witl1'the sl.ilnmons and complaint, stating, except is for.a liquiWiWd sqm,thlj.t"onfailure toanswer,plainti:tl will apply tOtliecourt for tile relief demaridedin the COl:\lplaint, anotice served with "complaint aUd 6ummons for trespilllll on rands ill f&tally detective when it states , til-at on faUqre.to answer, plaintUr, will !'take you. for the relief demandedin,'tl1e It v. 47 Fed. Rep. 202, followed.
. uz1leUteS·th '[,"1' t'tf"
:.. ,,; ,
aeomplalnt, in thllt it ,The SllDlIllOnS, !1eJYed with com. ,plp.int.UJ;.. ill: thensllat fclJ:'!lll; Jh<lonclud.eswith .. "iIr you fllir,tq within the time a.foreWill, for tberelief demanded in. ", our ofcourt,,iwhe.n the. is upon thepla,inti,ffllan; 'on· failure of answer, In 1aJ.! qt4ea: oases he to thecom;t for the reUef,iiemll,ndedin,tbfil.C;OD)pl:a.ipt. And' .the SijmI;llOnS contains the in whiah,pis The complaint ilJi.f9r a trespasl! c;mland, : Hit be notqnswered.. plaintifi' cannot take ·. , :aut:he,mustap,ply to the The sumOlons .aml 90m plaint.do pot· cQnforin, .and .the, q6f.ect fatal. ChamTh6d<iefelldant, upon the intimation of In the case just quoted no such motion was made, and the point was not decided. A strong intimation of au opinion againsUt was given. I now have full opportunity of considerinK the authorities, and will discuss and decide it. Every court possesses the discretion of allowing any amendments in the pleadings in a pending case. This power is exer· cised in furtherance of justice. "Perhaps," says MARSHALL, C. J., "the legal discretion which thus exists acknowledges no other limit than is necessary for the purposes of justice and for the restraint of gross and inexcusable negligence," (Calloway v. Dobson, 1 Brock. 119;) or, as it is put by PARK, J:., iIi Taylor v. Lyon, 5 Bing. 333: "Amendments are now generallyallowed at every stage of the pleadings for the advancement of justice. The question usually is, will any injustice be done by what is proposed? If not, the amendment is allowed." Section 948 ofthe Re.