
    E. W. Alexander, et al. vs. James F. Smith, Executor of W. B. Wilson.
    On appeal from the decisions of the probate icourt, the appeal bond must be made payable to the probate judge, and not the appellee ; if to the appellee, the appeal will be dismissed.
    Whether a bill of review may be filed in the probate court ? Query ?
    
    A., in 1842, filed a bill of review in the probate court, impeaching for fraud the final settlement of S., the executor of W.; S. answered the bill and denied its allegations; whereupon the bill at the same term was dismissed. Twelve months afterwards, A. filed another bill iir the same court, setting forth the proceedings in the first bill, and prayed that the order of dismissal thereof might be rescinded, and relief given. The probate court dismissed this second bill. Held, to have been correctly dismissed.
    On appeal from the Lafayette circuit court.
    Reference is made to the opinion of the court for the facts.
    
      Davis and McGehee, for appellants.
    The first position assumed in this cause is, that the court below erred, in dismissing the bill of review of complainants, upon defendant coming in with answer denying the allegations contained in the bill of complainants, without awarding time to make proofs. All of which is fully shown by the state of the pleadings. See-How. and Hutch. Dig., 472, secs. 17 and 18.
    That the complainants had placed themselves in a situation to receive the relief sought by their bill of review, is fully evident from the facts alleged in their bill, and the answer thereto; which is fully sustained by the principles décided in the cases of Ber v. Rouih’s Heirs, 3 How. 276, and.Stark v. Mercer, Ibid. 377.
    Secondly. The court below erred in refusing to rescind the order of dismissal upon the petition of complainants; for if the said order, as is contended, was illegal, and therefore void, the court was bound to proceed as if no such previous order had been made. The situation of the parties, .and the matters at issue upon the record, should not only have been directory, but compulsory upon the court. Every principle of justice and equity required at his hands the relief sought by the prayer of the petitioners. Without it that great and fundamental principle of justice, “ that n'o man shall take advantage of his own wrong,” was overthrown and prostrated ; the executor, Smith, according to the facts, as developed by the pleadings, having been permitted so to do.
   Mr. Justice Clayton

delivered the opinion of the court.

This cause will have to be dismissed for want of jurisdiction, according to the repeated decisions of this court. The bond was made payable to the appellee, not to the probate judge, as the statute requires, and we can take no cognizance of it. We have, however, examined the record, and as there is nothing in it which would authorize a reversal of the decree, we thought it might be well to state the reasons why it must stand.

At the December term, 1842, of the probate court of Lafayette, the appellants filed their bill of review, in which they stated, that at the Juñe term, 1842, of said court, the appellee had made a final settlement of his account, as executor. The court rendered a decree at that time, upon the settlemént, in favor of the executor, for the sum of $683,|30. They state that this order, or decree, is erroneous, as is manifest from the account filed by the executor, on which it is founded ; that it is void, for fraud practised in the settlement by the executor, and that testimony had been recently discovered, which would show the error and the fraud. The court permitted the bill of review to be filed, and directed that Smith should be summoned to answer. At the January term, 1843, Smith appeared, and filed his answer, in which he' denied all the allegations of the bill. The court thereupon, at the same term, dismissed the bill of review with costs; and no appeal or exceptionjwas taken at the time.

At the January term, 1844, the appellants filed another bill, in which they set forth all the proceedings on the bill of review. They insist that the decree dismissing the bill of review is erroneous; they therefore pray that the order of dismission be rescinded, the cause be reinstated, and relief granted, according to the prayer of this bill of review. At the same term of the court the bill was dismissed, at the costs of the appellants, from which order an appeal was taken to this court.

We shall not undertake to decide, whether or not it is proper to file a bill of review in the probate court, as we understand that point is to be directly made in this court, in a case of which it has jurisdiction. Nor need we decide whether the order dismissing the bill of review, in January, 1843, was correct or'not, because there is no appeal from that order, nor any attempt to subject it to our revision. It may not be out of place, however, to remark, that there is nothing in the record to show that the order was erroneous, there being no evidence to oppose the answer.

The only matter which is brought under our view is the correctness of the order made at the January term, 1844, from which the appeal was taken. In that no error is perceived. At that time, and in that mode, the court had no power to rescind, or in any way to affect an order made twelve months previously. See Smith v. Hurd, 7 How. 200. Smith v. Berry, 1 S. & M. 321. Planters Bank v. Neely, 7 How. 95.

The cause will be stricken from the docket. The appellants will be entitled to a writ of error, if they choose to prosecute it; but with our present impressions such a course would not, in our opinion, be advisable.

Cause stricken from docket.  