Frow v. De La Vega
Frow v. De La Vega
Opinion
delivered the opinion of the court.
If the court in such a case as this can lawfully make a final decree against one defendant separately, on the merits, while the cause was proceeding undetermined against the others, then this absurdity might follow: there might be one decree of the court sustaining the charge of joint fraud committed by the defendants; and another decree disaffirming the said charge, and declaring it to be entirely unfounded, and dismissing the complainant’s bill. And such an incongruity, it seems, did actually occur in this case. Such a state of things is unseemly and absurd, as well as unauthorized by law.
The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants. The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence, he cannot be heard at the final hearing. But if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as.the others. If it be decided in the complainant’s favor, he will then be entitled to a final decree against all. But a final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal. This was so expressly decided by the New York Court of Errors, in the case of Clason v. Morris. * Spencer, J., says: “It would be unreasonable to hold, that because one defendant had made default, the plaintiff should have a decree even against him, where the court is satisfied from the proofs offered by the other, that in fact the plaintiff is not entitled to a decree.” †
Irregularities, if any occurred in the proceedings after *555 the decree complained of, are not now before us for adjudication.
Decree reversed with costs, and the cause remanded for further proceedings,
In conformity with this opinion.
Reference
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- Syllabus
- 1. A final decree on the merits cannot he made separately against one of several defendants upon a joint charge against all, where the case is still pending as to the others. 2. If One of several defendants to a hill making a joint charge of conspiracy and fraud, make default, his default and a formal decree pro confesso may he entered, hut no final decree on the merits until the ease is disposed of with regard to the other defendants. The defaulting defendant is simply out of court aDd can take no farther part in the cause. 3. If the bill in such case be dismissed on the merits, it will he dismissed as to the defendant in default, as well as the others.