
    Lewisburg.
    Gray v. Dickenson’s adm’rs.
    
    (Absent Cabell, P. and Brooke, J.)
    1847. July Term.
    
    Though a defendant in equity has not appeared and filed his answer, and the bill has been taken for confessed, it is error to hear the cause and pronounce a final decree, upon a commissioner’s report which has not been returned to the Court thirty days preceding the term at which the cause is heard.
    This was a bill filed by Dickenson against Gray in the Circuit Court of Russell county, for the purpose of having an account of the proceeds of the sales of land held jointly by the plaintiff and defendant, and which had been sold by the latter. The defendant did not answer the bill; and it was therefore taken for confessed. And the accounts being referred to a commissioner, he returned his report on the 12th of September 1845, to which there was no exception. The session of the Court coming on within a few days thereafter, the Court took up the cause for a hearing ; and on the 17th of September made a decree against the defendant for the amount reported by the commissioner as due to the plaintiff. From this decree the defendant applied to this Court for an appeal, which was allowed.
    
      B. R. Johnston, for the appellant.
    
      Patton, for the appellee.
   Allen, J.

delivered the opinion of the Court.

It appearing that the report of the master commissioner, James P. Carrell, made in pursuance of an interlocutory decree in this cause, was filed on the 12th September 1845, and that the Court proceeded on the 17th day of September following, to act upon the report and pronounce a final decree, this Court is of opinion, that as the defendant had not appeared and answered ; and as there is nothing in the record from which it can he inferred.that the cause was then heard by consent, or that the objection to acting upon the report returned to the Qourt s0 recently before the cause was heard, had been waived, it was erroneous to take up and hear the cause and pronounce a final decree at the time the same was so rendered ; the said report not having been returned to the Court thirty days preceding the term at which the cause was heard. For this error, and without considering the other errors assigned, the decree is reversed with costs,'and the cause remanded, with leave to the appellant to answer and file exceptions to said report, and for further proceedings in order to a final decree.  