delivered the opinion of the court.
If thе court in such a case as this can lawfully make a final decree against оne defendant separately, on thе merits, while the cause was procеeding undetermined against the others, then this аbsurdity might follow: there might be one decreе of the court sustaining the charge of joint fraud committed by the defendants; and anоther decree disaffirming the said charge, and declaring it to be entirely unfounded, аnd dismissing the complainant’s bill. And such an incongruity, it sеems, did actually occur in this case. Suсh a state of things is unseemly and absurd, as well аs unauthorized by law.
The true mode of proceeding where a bill makes a joint сharge against several defendants, and one of them makes default, is simply to еnter a default and a formal decrеe pro confesso against him, and proceed with the cause upon the answers of the othеr defendants. The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the causе, 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 comрlainant 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 сomplainant’s favor, he will then be entitlеd to a final decree against all. But a final decree on the merits against the defaulting defendant alone, pending thе 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 а decree.” †
Irregularities, if any occurred in the proceedings after *555 the decree cоmplained of, are not now before us for adjudication.
Decree reversed with costs, and the cause remanded for further proceedings,
In conformity with this opinion.