
    Jessee Cooper, Admr. &c. v. Silas Armstrong, Guardian, &c.
    
    
      Error from Wyandotte County.
    
    On an appeal from an order of the Probate Court for the sale of lands inventoried as the property of decedent to pay debts, the. District Court rendered judgment that the judgment of the Probate Court “ be reversed.”
    
      Semite, on an appeal, the case is to be tried de novo ; Held that the District Court should have tried the case and rendered its own judgment on the merits, and the record should show what its conclusion was.
    The District Court could try nothing but what the Probate Court could. It could not try title to land. All it could do, was to see if the personal assets were insufficient to pay the debts, and if so, order the real estate inventoried to be sold.
    District Court ordered to try the case de novo.
    
    The facts of the case sufficiently appear in the subjoined opinion of the court.
    
      Cooper & Stockton, for plaintiff in error.
    
      A. B. Bartlett, for defendant in error.
    The ease was argued by Cooper for plaintiff, and by Bartlett for defendant in error.
   By the Court,

Crozier, C. J.

The plaintiff in error commenced a proceeding in the Probate Court of Wyandotte county to obtain an order for the sale of the real estate of the decedent to pay debts and obtained an order to that effect, from which judgment tbe defendant in error appealed to tbe District Court. Some sort of a trial was had there and judgment rendered, tbat tbe judgment of tbe Probate Court be reversed.” This judgment is complained of as erroneous. The most we can make out of tbe record is tbat tbe defendant denied any title to tbe land in tbe plaintiff’s intestate, and claimed it as tbe property of bis wards. It was inventoried as tbe property of tbe decedent. Tbe question of title was tried and all tbe judgment rendered was tbe one above recited.

This was evidently erroneous. Tbe District Court could properly try nothing but what tbe Probate Court could try, and tbe latter could not try tbe title to tbe land. All it could do was to ascertain if tbe personal assets were insufficient to pay tbe debts, and if so, order tbe real estate inventoried to be sold. The District Court could do tbe same things and no more.

If in tbe trial in the District Court it was found that tbe facts necessary to enable tbe Probate Court to make an order of sale did not exist, then tbe petition should be dismissed and this judgment be certified to tbe lower court, where it would have the same effect as a judgment of tbat court. On appeal where tbe case is to be tried de novo, the superior court does not reverse tbe judgment of tbe inferior tribunal, but renders its own judgment upon tbe merits. It is very likely tbat tbe District Court came to a different conclusion from tbat arrived at by tbe Probate Court, but whether it did or not, the record should show what its conclusion was. Its duty was to try tbe ease and not to review tbe action of tbe court below.

The order reversing tbe judgment of tbe Probate Court will be vacated and tbe District Court ordered to proceed to try tbe case de novo.

All tbe justices concurring.  