
    George W. Wasson and Wife v. Reuhama C. Heffner et al.
    Motion to dismiss appeal. Reserved in the district court of Eranklin county.
    A petition was filed in the court of common pleas of Erank-lin county to contest the validity of the will of Robert Armstrong. Answers were filed and an issue made. At the March term, 1856, the issue was submitted to the court, there was a finding for the will, a judgment on the finding, and an appeal to the district court. At the January term, 1857, of the district court, the following entry was made: “ By consent of parties to this suit it is ordered that this case be, and the same is hereby, remanded to the court of common pleas of this county for trial and further proceedings, and from the final judgment of which court no appeal shall be taken by either party.” Proceedings were afterward had in the ease in the court of common pleas, and at the Eebruary term, 1859, the issue was submitted to a jury, there was a verdict sustaining the validity of the will and a judgment on the verdict. Notice of appeal was entered, and the court fixed the penalty of the appeal bond, and the bond was given. In the district court a motion was made to dismiss the appeal, which was reserved for decision in this court.
    
      Nolle and Galloway, for the motion.
    
      iSwayne and Warden, contra.
   By the COURT

The consent of the parties in this case can not oust the district court of its appellate jurisdiction. The regularity of the proceeding in the court of common pleas, before the first appeal, in disposing of the issue without a jury, and of the action of the district court in remanding a case pending on appeal, to be again tried in the court of common pleas, is questionable; but taken in any view, the district court has now jurisdiction of the case, and the motion to dismiss the appeal must be overruled.  