Whiteside v. Pulliam

Walker, J. When a reference is made to a master in chancery to take and state an account, the parties have the undoubted right to be present and be heard in support of their rights. And the master should never proceed to pass upon and fix their rights by stating the account, unless the parties are present by themselves or their solicitors, or have been notified of the time and place of the hearing. On the hearing before him, they have the same right to be heard by themselves or by counsel, to introduce evidence, cross-examine witnesses, and take the various steps authorized by law, as if the hearing was before the chancellor instead of the master. And when the master has proceeded to take and state an account in the absence of either party, or of his solicitor, and without notice to either of them, an exception to his report should be allowed, and the cause again referred, so as to afford the party an opportunity of being heard and of urging his claims. In this case the defendant Whiteside excepted to the master's report, because of an alleged want of notice of the time and place of stating the account. The exception was dis- allowed by the court. In support of this exception, White-side filed his affidavit, in which he denies that he was served with notice, or had any knowledge of the time when the evidence was heard before the master, but he fails to state that his solicitor had no such notice, nor is there anything appearing in the record by which it is shown that his solicitor had not notice, or was not present at the hearing before the master. From the master’s report it appears that defendant examined Edward Penseneau, when he was testifying before the master. It is true that the report does not specify which defendant it was, but as neither of the Penseneaus seem to have had any interest in this contest, and as Whiteside has failed to deny in his affidavit that his solicitor was then present, we may safely infer that the examination was by Whiteside’s solicitor. Had the report failed to show an appearance, by any defendant on the hearing, the presumption might have been,that the master was unauthorized to act. But upon this record we are of the opinion that the court acted correctly in refusing to allow this exception. The other exceptions should have been taken before, and disallowed by the master, to entitle them to be heard before the chancellor. Brockman v. Aulger, 12 Ill. 277. And on the application to open the master’s report to hear further evidence, the party failed to show the use of diligence, or any accident, or any reason why he had not offered to adduce the evidence before the master in vacation. Had he called upon the master in vacation, before the hearing, and offered to produce the evidence, and the master had refused to fix a time for the purpose, then the application would have been entitled to more favor. But it does not appear that he took any steps or made any effort to have his evidence heard by the master. We perceive no error in overruling this motion. No error is discovered in this record for which the decree of the court below should be reversed, and it is therefore affirmed. Sccree affirmed.