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.
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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.
EMM.oXS ·V.UNITED STATES.
vised Statutes of the United States permits ,the amendment by the court of any process returnable to or before it when the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues. If there be no summons, 0r if the summons misleads, or tends to mislead, the defendant, or to put him oft' .his guard, or if the amendment works a surprise upon him, or'if there he nothing in the record to amend by, the amendment should not be allowed. Such are the cases quoted by counsel for defendant: Dwight v. Merritt,4 Fed. Rep. the summons had not the seltl of the court, nor the signature of the clerk, and so was not in fact ,a sumrntms; Braum v. Pond,S Fed. 'Rep. 34; U. S. Rose, 14 Fed. Rep. 681-\vhere the summons issued for the recovery of a penalty did not have upon it indorsed the statute imposing the pen:Hty, as is required in the New Yorkprllctice, and there was no complaint served with the SUmmons explaining it. In.,the:case. now before us, the summons admitted inthe motion to be a of the court andispropeliIy tested. Itealls atsummoDshas tentionto the terms of the complaint filed with and attached to it. It requires an answer thereto, specifying the time andr place for the serVice of such answer·. So ·thedelendant is in n() wise misled or surprised. He knows exactly the nature of the wrong with which he is charged. He cannot have been misled or injured by theerroneous assertion that, on his failure to answer, judgment would be taken'against him. Nor can· the amendment injure him: whereby, this is chw'lgedinto the assertion that, in such event, application will be made to the court for the relief sought·. Had he been served with nsiimmons only, the case would have been different. But the complaint, a part of the record, served simul..; taneouslywitb ,the· summons, not only- gave . him clear notice, but also furnishes ,something by which the sllmmonscanbe'amended; Randolph v. Ba.rrett, 16 Pet. 141. This a mendment, ,beingallow.ed pending a cause, requires no notice. Leave is granted to plaintiff to amend the summons as indicated. See Semmee v. U. 8.,91U. S. 24; Pilton v. Oojield,.93 U. S·. 164.
EmlONB 17. UNITED STATES.
courc, D. Oregon. November II, 1891.)
ABBIGNBlI.. States may Buethereon in his own name.
(StillabU8 bJlthe Court.) Ullder the act of 1887. (24 St. 606,). the assignee of a.cUllm against the United
AtLal\'.·. , Mr: Zera Snow, ror plaintiff. Mr. FranklinP·. MayuDdMr. Charles E.Locfcwood, for the United States.
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J.. This Mtion is brought to recover
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