Simeon Warnock propounder, plaintiff in error, vs. Green G. Watson, et al. caveators, defendants in error

By the Court.

Benning, J.

delivering the opinion.

. The first ground of the motion to dismiss the appeal, was abandoned in this Court.

Was the Court below right, on the other grounds, in dismissing the appeal, and in remanding the case to the Court of Ordinary ?

We think not.

Process had issued to the infant from the Court of Ordinary, calling upon her to contest the nuncuptivewill, if she desired to do so.

She, therefore, was a party to the cause in the Court of Ordinary.

After the decision of the cause in that Court, Green G. "Watson came before the Ordinary, and, as the “next of kin” to the infant, demanded an appeal from the decision; and an appeal was granted to him, and the case was transmitted to the Superior Court.

There was an appeal, then, regularly received by the lower Court, and regularly transmitted to the higher Court.

An appeal carries up the whole case. Therefore, it must carry up all the parties to the case.

This appeal, then, in carrying up this case, carried up the infant, as one of the parties to the case.

The case, including the parties to it, being thus regularly carried up, the appellate Court obtained jurisdiction of the case including the parties to it.

These things being so, suppose it true, that, as Watson had no interest, the appeal ought to have been dismissed as to Mm, did it thence follow, that it ought to have been dismissed as to the infant ? Certainly not. She had an interest. She had the only interest; and dismissing the appeal as to her, would not have been determining the appeal “ according to law and right," the mode, according to which, the statute says, that appeals from the Court of Ordinary, must be determined. Pr. Dig. 238. We think, then, that the Court ought not to have dismissed the appeal as to the infant, but only as to Watson; and, that, after dismissing the appeal as to Watson, the Court should have appointed a guardian, ad litem for the infant, and have let the case proceed in her name, as the appellant.

Perhaps, the appointment of Jones, as guardian mi litem% may still answer, so far as the appointment of such a guardian, is concerned.

As to the main matter, however, we see no necessity for remanding the case to the Court of Ordinary. We think, thait the case may be well perfected in the appellate Court; and that both right and expediency require, that it should be perfected there; and then, that it should proceed to an end in. regular course.

Judgment reversed.

McDonald, J.,

dissenting.

This cause comes up on exception taken to the judgment or order of the presiding Judge in the Court below, appointing Malcolme D. Jones, guardian ad litem of Martha, the infant daughter of the testator, and ordering that the cause be remanded to the Court of Ordinary, and that the Court of Ordinary be directed to hear the application of the propound-er of the will, (a nuncupative will) and make such order in relation to said will as it may deem right according to law. Sim «on Wamock moved before the Ordinary to set up a nuncupative will of Everett Tindall, deceased; Green G. Watson caveated the application. The will was established and the caveator appealed. In the Superior Court a motion was made to dismiss the appeal, and the appeal was dismissed. No exception was taken to that decision. But the presiding Judge-pronounced the judgment or order above stated, which is assigned as error, and this Court unanimously reverse that judgment. But this Court send back their judgment oj reversal with instructions to the Court below, the amount of which is, that the cause shall be reheard before the Ordinary, and that a guardian ad litem shall be appointed for the infant. I cannot concur in the authority of this Court to give instructions, in such a cause, to the Court below. The only jurisdiction which the Superior Court had of the cause? was given to it, by the appeal which was entered from the decision of the Ordinary. That appeal was dismissed. The cause, after the dismissal, was no longer in the Superior Court, and that Court could no more pass an order in respect to it, than it could in any cause pending before the Ordinary. If the order had been passed prior to or simultaneously with the appeal, the effect would have been the same, for the dismissal of the appeal carried with it everything which had been done, and which could not have been authorized, but for the appeal.

The order is nugatory at any rate, in my judgment; for the effect of the dismissal of the appeal, was to leave the judgment of the Ordinary quite as operative and effective as if no appeal had been entered.

The power claimed for this Court to award such order and direction to the Court below, in the premises as may be consistent with the law and justice of the case, cannot, it seems to me, be exercised in this case. There must be a cause in that Court, on which the order and direction of this Court may operate. But there is no cause there. The appeal was dismissed. No error was assigned on the decision dismissing the appeal, and without it, this Court could not reverse the. judgment of dimissal; and that standing, the case cannot be in. the Superior Court.