W. C. Boles v. S. J. and R. C. Linthicum, 48 Tex. 220

Moore, Associate Justice. A final judgment by default against appellant was certainly improper and unwarranted, until the ease was also disposed of as to his co-defendant, S. M. Boles, who had answered the plaintiff’s petition. The forty-seventh

section of the act of 1846, to regulate proceedings in the District Court, provides, that “ where there are several defendants in a suit, and some of them appear and answer, and others make default, an interlocutory judgment by default may be entered against those who do not answer, and the case may proceed against the others; but only one final judgment shall be given in the suit.” (Paschal’s Dig., art. 1450.) An interlocutory judgment by default establishes, as against the party in default, the facts properly alleged by the plaintiff) and, when the case is ready for final disposition, authorizes the entry against him of such judgment as the facts alleged warrant.

But until this stage of the case is reached, the only effect of the interlocutory judgment is to deprive the party in default of the privilege of filing an answer, which otherwise he might do at any time prior to the call- of the case for trial or final disposition. If the suit had been legally discontinued as to his co-defendant, and continued still pending against him, a final judgment by default could no doubt have been taken against appellant. But such is not the case presented by this record. The judgment against appellant was entered some days before the case was dismissed as to S. M. Boles.

It is-therefore unnecessary, at this time, to consider the effect of such discontinuance. The statute exempts appellant from final judgment, by reason of his default, until the case is disposed of as to his co-defendant. The policy or importance of this privilege is not to be considered or weigh. ed by the court. It is enough that it is given appellant by the statute. A judgment depriving him of this privilege is erroneous, and must be reversed. The judgment against appellant is also erroneous, because it does not conform to the pleading, and the nature of the case established by his default.

Though appellant and his co-defendant are charged with a trespass, yet it is quite apparent that plaintiffs’ action, as presented by their supplemental petition, cannot be regarded as simply an action of trespass to try title. Certainly, in its leading and essential features, it is in the nature of a suit in equity to establish Mrs. Linthicum’s right to the land described in the petition, and to annul the title of the defendants; which, from the averments in the petition, we must infer was sufficient to vest the title in the defendant S. M.

Boles, whether the legal title was in him or appellant, but for his knowledge, and that of those under whom he claims, of appellees’ rights, when the land was conveyed to them. Although appellees’ pleadings are quite loose and contradictory, the inference to be drawn . from them, taken as a whole, is, that whether appellant holds the legal title to the land or not, his father, S. M. Boles, is the real party in interest; and whatever title appellant has, is held by him in trust for his father. If this is so, certainly S. M.

Boles is a proper party to a suit to divest appellant of this title; and a court of equity would not cancel and annul a title thus held, without the cestui que trust being a party to the suit. hi or does the ordinary judgment in an action of trespass to try title, as rendered in this case, conform to the pleadings by which appellees invoked the equitable jurisdiction of the court to establish their right to the land, and to cancel and annul the apparently better title under which it was claimed by appellant and his co-defendant. The judgment is reversed and the cause remanded. Reversed and remanded.