
    Talefer Johnson v. R. M. Davis.
    Where the plaintiff charged that the defendants conspired together to cheat and defraud him, and thereby fraudulently obtained from him a conveyance of a certain tract of land to one of them, wherefore he prayed that the conveyance might be canceled and the title to the land be adjudged to him: ITeld, That a mere participation in the fraud practiced by the defendant to whom the conveyance was made, was not, of itself, sufficient to render the other defendants liable to be joined in the action; and that, as to them, the petition showed no cause of action. (Note 19.)
    The improper joinder of parties is not a ground for dismissing the suit as to those properly sued. (Note 20.)
    In our remedial system the rules of practice are,in general, the samo in all cases, whether of legal or equitable cognizance. Rules peculiar to forums whose jurisdiction is restricted to cases either at common law or in equity, must frequently be inapplicable, and cannot be obligatory in our courts.
    The improper joinder of parties who have no interest in the litigation, and against whom no decree can be rendered, may operate to the prejudice of those who are properly sued; and the objection may therefore be taken by the latter. .
    The rule of practice prescribed by the statute, where the defendant maybe in default for want of an answer, does not authorize a judgment against him, even for costs, when it manifestly appears that, as to him, there is no cause of action.
    Several other defendants had been improperly joined with the appellant in the court below, and had suffered judgment to go by default; the appellant had answered to the merits, and afterwards demurred, on the ground of misjoinder of defendants, and the court below had rendered judgment against the appellant on the merits, and against all the defendants for costs: Held, That the judgment should bo so reformed as to require the appellee to pay the costs incurred by the misjoinder of defendants.
    Appeal frhm Guadalupe. This suit was brought by the defendant in error against the plaintiff' in error and three others — Foster, DeWitt, and Conn — to obtain the cancellation of a deed executed by the plaintiff' to the defendant Johnson for the, conveyance of a tract of land.'on the ground that it was fraudulently obtained. The petition charged that the defendants conspired together to cheat and defraud the plaintiff; that in consequence of their representations (which were particularly stated) lie was induced to make the conveyance of the land; hut-that, hy their fraudulent conduct, (which he described particularly,) lie was cheated and defrauded of his property; wherefore lie prayed that the defendants might be cited, &c., that tiie deed might be canceled, and the title to the land adjudged to him.
    The ease was continued at one term to obtain service on the defendants Foster, DeWitt, and Conn, who did not reside in that comity. After service there was judgment by default taken against all the defendants; but it was set aside as to the defendant Johnson, and lie answered, admitting the contract and conveyance as alleged, but denying the charge of fraud. The other defendants did not answer.
    The defendant Johnson subsequently filed a demurrer to the petition, objecting that improper parties, having no interest in the subject-matter of the suit, were joined with him. The demurrer was overruled. There was evidence of the admissions of the defendant Johnson, which went to establish the charge of fraud as against him; hut there was no evidence offered in any way affecting the other defendants. There was a verdict for the plaintiff, and judgment thereon, that the deed be canceled, &c., and that the defendants pay the costs, &c. The defendant Johnson brought a writ of error.
    
      Neill, for appellant.
    
      Gordon, for appellee.
   Wheeler, J.

The only error assigned which requires notice relates to the improper joinder of the defendants.

It is apparent on the face of the petition that the defendants Foster, DeWitt, and Conn were improperly joined. They had no interest in the subject-matter of the suit. They do not come within any of the exceptions which, under certain circumstances, have been allowed to the rule, that only those who have an interest in the suit, and against whom there can he a decree, can be made parties. (1 Daniel’s Ch. Pl. and Pr., ch. 5, sec. 4. pp. 342, 346, Am. ed.; Story’s Eq. Pl., secs. 231, 232, 234, 233.) A mere participation in the fraud practiced by tlie defendant Johnson was not, of itself, sufficient to render the other defendants liable to be joined in the action ; and, as to them, the petition showed no cause of action. Their improper joinder would not, it is true, be a ground for dismissing the suit as to him. And it is also true that in chancery none but those improperly joined can take advantage of the misjoinder. (Id., secs. 232, 237, 544.) This rule, however, is to be regarded as a rule of practice adopted for convenience and observed in courts of chancery, rather than as matter of principle obligatory here. In our remedial system, the rules of practice are, in general, the same in all cases, whether of iegal or equitable cognizance. Pules peculiar to forums whose jurisdiction is restricted to cases either at common law or in equity must frequently be inapplicable, and cannot be obligatory in our courts, where botli jurisdictions are blended and may be exercised in the same case, and no distinction exists between legal and equitable remedies. That a cause may be exclusively of equitable cognizance, does not, in our practice, require the application of the rules of practice observed in courts of chancery. (Hardy v. De Leon, 3 Tex. R.)

Note 19. — Cramer v. Hernstadt, 41 T., 014.

Note 20. — Emmons v. Oldham, 12 T., IS; Andrus v. Pettus, 30 T., 108.

The improper joinder of parties who have no interest in tire litigation, and against whom no decree can be rendered, may operate to tlie prejudice of tiloso who are properly sued. It may occasion harassing delays, and a needless and, it may be, an oppressive accumulation of costs, to be visited ultimately upon those properly sued. The present ease was continued, after the appearance of tlie defendant Johnson, to obtain service on those improperly joined, and an increase of costs has been occasioned by the misjoinder, which, by the judgment, lie may be compelled to pay, in tlie event of their insolvency. These are consequences to which the defendant ought not to be subjected; and we see no good reason why lie ought not to be permitted to urge tlie objection. It would have been a better practice, more in consonance with justice, to have dismissed the suit as to those improperly joined, when the objection was made and tlie misjoinder first brought to the notice of tlie court. Blit, however tlie court should have decided oil tlie demurrer, at the trial, when it appeared that there was no evidence in any way adecling tlie defendants improperly joined, the court, proceeding to make a final decree and to do complete justice between all tlie parties, ought to have dismissed the case, as to those improperly joined, at the costs of the plaintiff; and this, although they had suffered judgment to go by default. The rule of practice, prescribed by tlie statute, where the defendant may bo in default for tlie waut of an answer, does not authorize a judgment against him, even for costs, when it manifestly appears that as to him. tiiere was no cause of action.

Tlie writ of error is prosecuted by the defendant Johnson alone, the others not joining. But his liability has been increased by the misjoinder. He is subject to be proceeded against directly for all tlie costs; and, in case of the insolvency of the other defendants, lie is liable ultimately to the payment of the whole. The judgment is, in this respect, erroneous. It must therefore be reversed, and tlie defendant Johnson adjudged to pay those costs only, incurred in prosecuting the. suit against himself, and tlie plaintiff to pay all tlie costs incurred by the joinder of the other defendants. Tlie verdict was warranted by the evidence, and tlie judgment upon it, as to the subject-matter of tlie suit, the rescission of tlie contract, is substantially correct. But, as tlie court erred in not dismissing the suit as to those against whom tiiere was no cause of action, and in awarding costs, we are of opinion that the judgment be reversed, mid such judgment be now here rendered as the court below ought to liave rendered; and that it be remanded to the District Court, with instructions that, tlie costs be tiiere taxed in accordance witli tlie judgment of this court, and for execution thereof.

Ordered accordingly.  