Frow v. De La Vega
82 U.S. 552 (1872)

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U.S. Supreme Court

Frow v. De La Vega, 82 U.S. 15 Wall. 552 552 (1872)

Frow v. De La Vega

82 U.S. (15 Wall.) 552

Syllabus

1. A final decree on the merits cannot be 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 bill making a joint charge of conspiracy and fraud make default, his default and a formal decree pro confesso may be entered, but no final decree on the merits until the case is disposed of with regard to the other defendants. The defaulting defendant is simply out of court, and can take no farther part in the cause.

3. If the bill in such case be dismissed on the merits, it will be dismissed as to the defendant in default as well as the others.

De La Vega filed a bill in the court below against Frow

Page 82 U. S. 553

and thirteen other defendants, charging eight of them (including Frow) with a joint conspiracy to defraud him, the complainant, out of a large tract of land in Texas by the use of a forged power of attorney purporting to be executed by the complainant and by various conveyances and mesne conveyances deraigning a false and fraudulent title from him. The defendants, other than Frow, all put in answers to the bill on the merits, but Frow's answer having been delayed (as he insisted, by misunderstanding, sickness, and other accidents), a decree pro confesso was taken against him at September Rules, 1868, and notwithstanding he afterwards prepared his answer and asked leave to file it (being in substance the same as the answers of the other defendants), yet the court afterwards, on the 23d of March, 1870, on application of the complainant, and against the protestation of Frow, made a final decree absolute against him adjudging the title of the land to be in the complainant and awarding to him a perpetual injunction as against the appellant. From this decree the present appeal was taken. After this final decree against the appellant, the court proceeded to try the issues made by the answers of the other defendants, and decided the merits of the cause adversely to the complainant and dismissed his bill. This fact was made to appear by the return to a certiorari sued out by De La Vega himself.

The question now was whether the court in such a case as that mentioned could lawfully make a final decree against one defendant separately, on the merits, whilst the cause was proceeding undetermined against the others.

Page 82 U. S. 554

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