Frow v. De La Vega

APPEAL from the Circuit Court for the Western District of Texas; the case being thus:

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

Mr. P. Phillips, for the appellant, argued that it was improper to have granted the prayer against a single defendant whose interests were all bound up with those of the other defendants.

Mr. T. J. Durant, contra, insisted that everything done had been done in accordance with the 18th Rule in Equity, prescribed by this court.

Mr. Justice BRADLEY delivered the opinion of the court.