
    WILLIAM SLADE vs. ROBERT H. BURTON’S EX’RS.
    Whore the County Court, upon affidavits, ordered an amendment of their records, and the party aggrieved appealed to the Superior Court, it was the duty of the Superior Court to have decided upon the question of amendment, and if the Superior Court dismissed such appeal without deciding upon the merits, their judgment must be reversed.
    The Superior Court may, upon such appeal, not only review the decision of the County Court, on the affidavits there filed, but may hear further evidence, as to the propriety of the order of the County Court.
    The ease of Dickinson v. Lippett, 5 Ired. 560, cited and approved.
    Appeal from the Superior Court of Law of Lincoln County, at tlie Fall Term, 1845, his Honor Judge Peak-son presiding-.
    The case appeared upon the record to be this: At February Sessions, 1845, the County Court of Lincoln, on affidavits filed by the plaintiff, made a rule upon the defendants, to show cause at the next term, why the record in a suit between the same parties, made at J une Term, 1842, should not be amended in the manner stated in the said rule. The defendants, on the return of the rule, appeared and filed counter affidavits, and resisted the motion. The County Court, on hearing the affidavits and proofs in writing, made in the cause, made an order to amend the record, as prayed for by the plaintiff. The defendants appealed from this order to the Superior Court. The transcript of the record of this rule, and copies of all the affidavits and proofs in the case, were sent up to the Superior Court. The Judge, on the case being there called, dismissed the appeal, without deciding upon the questions of fact or law, made by the case, and. sent to him for his determination. From this judgment, the plaintiff appealed.
    
      Guión and Boyden, for the plaintiff.
    
      Alexander, for the defendant.
   Daniel, J.

There is no doubt that such an order is the subject of an appeal from the County to the Superior Court. It is true, that when a record is once amended, by an order of the same Court made at any subsequent term, it cannot afterwards ever be called in question. For the record then appears on its face as if it had always been perfect; and then it cannot be contradicted. But when an order is made, by the County Court, to amend the record of its proceedings at any antecedent term, such order may be appealed from, and the appeal instantly vacates the order ; and the record, sought to be amended, remains in statu quo, and without amendment. From the sentence, judgment, or decree of any County Court, the party dissatisfied may appeal. Rev. Slat. ch. 4, see. 1. We think the Judge ought not, therefore, to have dismissed the appeal, but should have decided the question of amendment. Although this Court cannot review the decision of the Superior Court, upon the question of amendment, either in refusing or allowing it, because it is a matter of discretion upon evidence, yet the Superior Court can review the decision of {he County Court, and, to that end, hear further evidence; and the appellant had a right to the Judge’s opinion as to the propriety of the order of the County Court, and, therefore, it was error to refuse to entertain the appeal. Dickinson v. Lippett, 5 Ired. 500. Jf he had been in favor of the plaintiff, he should have affirmed the order and issued a writ of procedendo; if he had been against the order, he should have reversed it, and given the defendants judgment for costs.

The judgment dismissing the appeal must be reversed, and the Superior Court of Lincoln will proceed in the cause.

Per Curiam. Ordered accordingly.  