
    F. C. Sharp & Wife v. James Hackney et al.
    Appeal and Error — Reversal of Cause for New Trial — Surprise.
    An order was entered by the court, “It is ordered that the issue herein be set for trial on the 3rd day of the next April term.” However on the same day the ease was submitted to the court without due notice to.appellant: Held, to authorize a reversal, and a new trial awarded.
    APPEAL FROM WOODFORD CIRCUIT COURT.
    April 17, 1869.
   Opinion of the Court by

Judge Peters:

On the 17th of October, 1867, the master to whom the case was referred filed his report, to which exceptions were filed on the same day by both parties; and this order was then made: It is ordered that the issue herein be set for trial on the 3rd day óf the next April term.

Without setting aside formally the la.st'named order, the record shows the case was heard on the same day, to-wit: 17th of October, 1867, and the clerk certifies that no order of submission was in fact made, and the exceptions not disposed of. But that the record was sent to the judge after the court adjourned, and the judgment rendered in vacation.

The facts conduce strongly to the conclusion that appellant was not apprised of the submission of the case, and that he and his counsel were not aware that there was any intention to submit the case at that term, and had certainly a right to suppose the case would not be heard before the next- term of the court; arid may' have reasonably supposed from the character of the order recited that the issue referred to was the issue of fact raised by the pleadings, and that it would be tried by a jury, on the day fixed at the next term. But be that as it may, the trial of the case was certainly a surprise to both the appellant and his counsel, and was had when they might well have concluded the cause was continued; and if a trial had been urged in their hearing, they might have made out good grounds for a continuance.

Porter & Greathouse, for appellants.

U. Turner, for appellees.

The language of section 465 and 466 of Civil Code, is very broad and comprehensive, conferring juridiction on courts of equity in all cases relating to the settlement of the estates of deceased persons; sufficiently so to embrace this ease, and this court would not feel authorized to interpose, and reverse a judgment of a chancellor merely because he might refuse to refer an issue of fact in'this class of cases to a jury.

But for the reason herein stated, the judgment is reversed, and the cause is -remanded for further proceedings not inconsistent with this opinion.  