#### J. C. Howton, *et al. v.*Martha Jordan, *et al.*

*Bill to Enforce Vendor’s Lien and for Sale of Gammon Property.*

Decided April 9, 1908.

46 South. 234.)

*Equity; Bill; Amendment; After Decree Pro Confesso;*Notice.— Where notice is not given of an application to amend a bill after a decree pro confesso has been entered, unless such amendment is applied for at the hearing in term time under rule 40, a decree entered upon the amendment made without notice is erroneous.

Appeal from Birmingham City Court.

Heard before Hon. Charles A. Senn.

Bill by Martha Jordan and others against J. C. How-ton and others, to enforce vendor’s lien on an undivided interest, and for a sale of the common property. From a judgment for complainants, respondents appeal.

Reversed and remanded.

A. S. Van deGraaff, for appellant.

No compliance with chancery rules 40, 41 and 44 is shown. The defendant was not in default, and is not put in default by the recitals made in the decree pro *confesso.*— McGluny *v. Ward,*80 Ala. 243; *Holly v. Bass,*63 Ala. 387; *Alston v. Alston,*34 Ala. 15; 32 Ala. 437. Under the English Chancery practice, the bill cannot be amended, even to the extent of correcting a clerical error without vitiating the proceeding and rendering the order useless. — 1 Dan. Chan. Prac. 523 (5th Ed.) citing *Weightman v. Powell,*2 De G. & S. 570; 12 Jur. 958. After a bill is materially amended where the defendant has failed to appear, the decree pro confesso taken on the same day, and without *429serving new process, is *irregular.*— Harris *v. Dietrich,*29 Mich. 366.

Montgomery & Smith, for appellee.

The decree of the court, Feb. 24, 1905, sustaining respondent’s demurrers, allowed complainants the right, without notice to file amendment of Feb. 28, 1905, and Nov. 4, 1905. They were such amendments as contemplated by the said decree, and sec. 706, Code of *Alabama.*— Gayle *v. Johnston,*80 Ala. 395; 16 South. 148; *McGee v. Alexander, et al.,*104 Ala. 136, 18 South.; *Smith v. Hill Garver Go.,*107 Ala. 272. The decree pro confesso against respondents put the cause at issue. On the 12th of Feb., 1907, the cause being at issue, decree pro confesso against respondents, it was not necessary to give respondent notice of the proposed amendment filed of that day. — Sec. 713, Code of Ala.; Subd. 3, Rule 44 Chan. Prac.; Rule 40, Chan. Prac.

ANDERSON, J.

Conceding, without deciding, that the various amendments to the bill of complaint were permissible, it was error to allow the same without notice to the respondents. The only amendments which are authorized under the rule without notice are those applied for at the hearing in term time. — Rule 40. Rule 44 applies to notice of the allowance of amendments, and not to the application for same. There is nothing in the record to indicate that any notice was given of the application to malee any of the amendments; nor that the amendments were made, unless the summons served on respondents’ solicitor on April 11, 1906, had that effect as to amendments allowed prior thereto. But we find an amendment made subsequent to that time, February 12, 1907, and no notice of the application for an allowance of same. The fact that a. decree pro confesso was *430entered did not dispense with notice of amendments subsequently made, and it was reversible error to render a decree on tbe *amendmnt.*— McClenny *v. Ward,*80 Ala. 243; *Holly v. Bass' Adm'r,*63 Ala. 387; *Masterson v. Masterson,*32 Ala. 437.

Tbe decree of tbe city court is reversed, and the cause is remanded.

Reversed and remanded.

Ttson, C. J., and Dowdell and McClellan, JJ., concur.