E. E. ROPES, APPELLANT,

v.

WILLLIAM MCCABE, APPELLEE

Carter, J.:

Appellant and appellee were tenants in common of 376 94-100 acres of land in Volusia county, known as “Forbes’ Island,” to partition which a bill was filed in the Circuit Court by appellee.

Appellant appeared specially, moving to quash the subpoena, and also filed a motion to dismiss the bill.

On January 23, 1894, while these motions were undisposed of, the clerk entered an order upon application of complainant’s solicitor, reciting that defendant had appeared on November 6, 1893, for a special purpose, and that having failed to plead, answer or demur to the bill, it was therefore ordered that the bill be taken as confessed by defendant, and that complainant have leave to proceed ex parte. On application of complainant the court-appointed a master to take testimony, and after-wards commissioners to partition the land. Although defendant was notified of the time and place of taking testimony he never appeared at any of the hearings before the master. The commissioners reported to the court that the land could not be equitably partitioned on account of its nature and location. The court thereupon decreed a public sale of the land, at which sale complainant became the purchaser at the sum of $220. The court confirmed this sale, directed that a deed be executed to the purchaser, approved bills of cost due to the master, commissioners, a surveyor employed by them, witnesses and court officers, amounting to $146.86, and a fee of $300 for complainant’s solicitor. The court further directed that the $220 purchase money, be used in payment of these expenses, and as after paying the $146.86 above named, only $73.14 remained to be applied to attorney’s fees, leaving a balance due of $226.86, the court entered judgment against complainant in favor of his attorney for one-half that sum $113.43, and a similar judgment against defendant for the other half and directed executions to issue there for.

Thus an ex parte proceeding to divide nearly 40O' acres of land resulted in a total loss of each party’s entire interest therein, and in addition a personal judgment against each in favor of the attorney who brought the suit, for an amount in excess of one-half the value óf the land realized at public sale.

We do not deem it necessary to consider any error assigned except that relating to the entry of the decree pro confesso against appellant. This decree was not entered on a'rule day; it was not entered in pursuance of any default in pleading committed on that day, nor was it entered in pursuance of any order of the judge. The clerk was, therefore, without any authority to grant it (Ballard v. Kennedy, 34 Fla. 483, 16 South. Rep. 327); and as there was no valid decree pro confesso against appellant, the court erred in proceeding to decree partition because partition can not regularly be decreed until the defendant answers, or is barred from filing an answer by a decree pro confesso. Section 1494 Revised Statutes; Street v. Benner, 20 Fla. 700.

The decree pro confesso, and all subsequent decrees in the case are reversed, and the cause remanded with directions that the Circuit Court fix a time within which appellant shall plead, answer or demur to the bill of complaint, and for further proceedings.