
    PATRICK DONEGAN, Appellant, v. DANIEL MURPHY, Respondent.
    Appearance — Abandonment of Defense on Appeal in Equitv, Presumed. —Where an appeal in a suit in equity is taken to this court, and the respondent, being the defendant in the court below, fails to appear, such failure will be regarded as an abandonment of the defense. And if the appellant, being the plaintiff in the court below, makes a prima facie case he will be entitled to a decree.
    Appeal from Jackson County.
    
      W. W. Thayer, for appellant.
    
      No appearance for respondent.
   By the Court, McArthur, J. :

This is a suit in equity and is here to be tried anew. The appellant appeared and submitted his case. The respondent appeared not. __ Such being the fact we are compelled to regard the non-appearance of the respondent (defendant in the court below), as an abandonment of the defense. The only course we can pursue is to examine the pleadings, and the evidence submitted by the appellant, and if a prima facie case is shown, he should have a decree.

The complaint alleges that the appellant and respondent are owners and tenants in common of about four hundred and sixty-eight sheep, of the value of eight hundred dollars, the former being the owner of the undivided three fourths, and the latter the owner of the undivided one fourth. That the respondent took exclusive possession and control of about one hundred and thirty of the best and most valuable of the sheep without the knowledge or consent of the appellant and keeps possession, claiming them as his individual property.

That at different times the appellant urged the respondent to make division of the flock according to their respective rights, and^each time was met with a refusal. That the remainder of the flock not taken by the respondent' are in possession of one Samuel Centers. That the respondent threatens to control and dispose of the said one hundred and thirty head of sheep without consulting the appellant, and in fraud of his rights. The answer denies the allegations of the complaint, and alleges that a division of the flock was made with the consent and approval of the appellant, and that upon such division the said hundred and thirty fell to the respondent. The reply denies the affirmative allegations of the answer. The testimony presented by the appellant sufficiently sustains the allegations of the complaint and he should have a decree.

Decree reversed.  