The record in this case shows that answer to bill of complaint was filed August 7th, 1933. On the 9th day of August, 1933, complainant's solicitor served notice on solicitor for answering defendant that he would bring the cause on for trial before the Chancellor on August 15, 1933, at 9:30 o'clock A. M. The case was so brought on *Page 349 for trial before the Chancellor and on August 16th, 1933, the Chancellor entered decree in favor of complainant.
Trial and decree were premature as under Section 39 of Chapter 14658, the 1931 Chancery Practice Act, the cause did not stand at issue until the expiration of ten days from the date of the filing of the answer.
The trial was had and the decree rendered before the cause was at issue and, therefore, the decree must be reversed. See 34 C. J., Sec. 192, page 62.
Reversed.
DAVIS, C. J., and ELLIS, TERRELL and BUFORD, J. J., concur.
WHITFIELD and BROWN, J. J., dissent.
ON PETITION FOR REHEARING.