
    Elias Wallace et al. vs. David R. Wingate, Administrator of Jourdan Morgan, deceased.
    Where an issue has been made up in the probate court and sent to the circuit, court for trial before a jury, upon the rendition of the verdict, the issue must be sent back to the probate court for judgment; and if the circuit court undertake to render a judgment upon such verdict, that judgment will be a nullity.
    Where a circuit court has rendered a judgment upon a verdict on an issue from the probate court, no appeal or writ of error will lie from such judgment, it being a nullity; and if one be prosecuted it will be dismissed.
    If the probate court, after the trial of an issue from it in the circuit court, refuse to grant a new trial, the whole proceedings may be brought up to the high court of errors and appeals, for revision in all their parts.
    In error from the circuit court of Hancock county; Hon. Van Tromp Crawford, judge.
    At the September term, 1843, of the probate court of Hancock county, an issue was made up and directed to the circuit court of that county, to ascertain if Elias Wallace and others were the legal heirs and distributees of Jourdan Morgan’s estate; they asserting that they were, while David R. Wingate, the administrator of the estate, denied it.
    It is not deemed necessary, to the proper understanding of the decision of the court, to detail the facts developed on the trial of the issue in the circuit court. The jury determined that the plaintiffs in the issue were not the legal heirs and distributees of Jourdan Morgan’s estate; upon which the circuit court adjudged that they take nothing by their issue, and that Wingate should recover his costs and charges in that behalf expended as adjudged, and that he go thence without day.
    From this judgment of the circuit court, Wallis and others, the plaintiffs, prayed and prosecuted this writ of error, and at the present term of this court, Wingate, the administrator, moved to dismiss the writ of error for want of jurisdiction.
    
      
      Montgomery and Boyd, for the motion.
    The writ of error in this case is to the circuit court of Hancock county. The proceedings there were all connected with the trial of an issue, directed to that court by the probate court of the county, according to the provisions of the 18th section of the probate act, H. & H. Dig. 472. The issue is set forth on the first page of the record, and the petition and answer upon which it was ordered, are immediately after, and continue to the fifth page. The question submitted was, whether the petitioners, Wallace and others, were the heirs at law of Jourdan Morgan, deceased. The object of the petitioners was, on establishing their heirship, to compel a distribution of the estate of their ancestor, which was then in the hands of Wingate, the defendant, and to remove him from his office of administrator. It will thus be seen that the proceedings in the circuit court were merely interlocutory, and could not, in the nature of things, have any final character about them. That there could be no judgment of the circuit court, in such a case, either final or otherwise, is apparent from the language of the section quoted. The proceedings in that court end with the verdict, and the judgment or decree “ on this finding of the jury,” or verdict, is expressly directed to be given by the orphan’s court. The rendering of a final judgment by the circuit court would of itself be an error, for want of jurisdiction in that court. The final proceedings are of a testamentary character, and appertain to the orphan’s court alone. It is clear, then, there could be no appeal or writ of error till the action of the probate court, upon the return of the verdict certified back by - the circuit court. The proceedings being interlocutory in the circuit court, the' judgment could not be final. It is true there is the appearance of an attempt to enter a judgment by the circuit court in this' case. On the fifth page of the record, after the return of the verdict by the jury, the court proceed to say, “ it is considered by the court that complainants take nothing by their issue,” &c.
    But this can hardly be called a judgment; at all events it is not a final judgment. Neither party could take anything by their issue. H. &. H. 538, sec. 40. If, however, it was intended to refer back to the petition, it will be regarded as a matter coram non judice, and mere surplusage in the record, or, at least, but the expression of an opinion by the judge, that he concurred in the finding of the jury.
    The errors complained of in the different bills of exceptions are not now noticed. This court can never reach them, till there has béen some final action in the probate court. The reversal of this supposed judgment of the circuit court, would not affect the verdict of the jury in any way. That would remain to be certified into the probate court, and the errors preceding.it, to which the complainants object, can only be the subject of consideration here, where the original proceedings, of which they are but a part, are consummated by a judgment or decree of that court.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a motion to dismiss for want of jurisdiction. An issue was made up in the probate court of Hancock county, and sent to the circuit court for trial. After the verdict had been rendered in the circuit court, that court gave a judgment in accordance therewith, in favor of the administrator, that he go hence without day, and recover costs. By the statute the judgment upon the verdict must be rendered by the probate court, H. & H. 472, sec. 18; and the judgment of the circuit court is a nullity, because not in accordance with the power entrusted to it by the statute in this sort of case. The power and duty of the circuit court were to certify the finding of the jury upon the issue, to the probate court, that judgment might be rendered in that tribunal. As no judgment could properly be pronounced in the circuit court, for lack of jurisdiction, the writ of error gives no jurisdiction to this court, and the cause ¡must be stricken from the docket.

The effect of this will be, that the parties will stand precisely as they did when the verdict of the jury was rendered. The verdict must be Certified to the probate court, when and where an application may be made for a new trial. Apthorp v. Comstock, 2 Paige, 487. Barker v. Ray et al, 3 Con. Eng. Ch. R. 63; 2 Rob. Prac. 356. If refused, and the case be finally disposed of, the whole proceedings may be brought up to this court for revision in all their parts.

Motion sustained and cause stricken from docket.  