
    ROULETT v. MULHERIN.
    1. Where two persons as nominated executors filed in the court of ordinary separate and distinct applications to probate, in solemn form, different instruments each of which, in the application relating thereto, was alleged to be the last will of the same decedent who was named in the other application, and upon the first application a judgment was rendered setting up the paper therein propounded as such will, and upon the other a judgment was rendered denying probate, solely on the ground that the last will of the deceased had already been duly probated in solemn form, this judgment being based upon a caveat filed by the other propounder, and thereupon both cases were appealed to the superior court, that court committed no error in refusing to dismiss the appeal in the second case and the application originally filed therein, but properly held the same for trial. ■
    j¡. Under such circumstances, the trial judge might, in his discretion, pass an order directing that the two cases be consolidated and heard together, and in this manner have all the issues disposed of by a judgment binding and conclusive upon all the parties before the court. In such trial the person who. filed the first application in the court of ordinary would be entitled to open and conclude.
    Argued January 25,
    Decided March 22, 1897.
    Appeal. Before Judge Callaway. Richmond superior court. April term, 1896.
    
      Boyhin, Wright asad O. H. Cohen, for plaintiff in error.
    
      ■Balem Dntoher and J. R. Lamar, -idontra.
   Eish, Justice.

E. J. Roulett, claiming an instrument, dated March 2d,. 1895, in which he was nominated executor, to be the last will of Margaret Roulett, offered it for probate in solemn form in the court of ordinary of Richmond county. To the probate of this instrument a caveat was filed by the heirs at law, save one, of said Margaret, on the grounds, (1) that at the time of the signing thereof said Margaret was-not of sound and disposing mind and memory; (2) that it was not her free and voluntary act, but was executed under' the undue influence of said E. J. Roulett; and (3) that it was not her last will and testament. Before the issues, made by this caveat were heard, P. M. Mulherin, 'in the same court, offered for probate in solemn form, as the last' will of said Margaret, an instrument dated May 11th, 1892, in which he was named executor. Mulherin was no party to Roulett’s proceeding, in which only the instrument in which Roulett was named executor was in issue; while in Mulherin’s proceeding Roulett and all the heirs of Mrs. Roulett were parties and both wills were in issue; and in this proceeding, and in this alone, could have been rendered a judgment covering all the issues and binding all parties. Both cases came on for hearing on the same day. In theRoulett case, which was first tried, judgment was rendered probating in solemn form the instrument propounded by him. Mulherin then requested a hearing on the petition to-probate tbe instrument in which he was nominated executor. Roulett filed a caveat to such probate, on the grounds,. (1) that it was not the last will of said Margaret, and (2) because the matter of her last will was res adjudicata, as. another will, later than the one sought to be propounded by Mulherin, had just been duly probated in solemn form by that court. These objections were sustained, and the petition of Mulberin refused. Mulberin on tbe same day entered an appeal in each case, and the appeal papers were filed on tbe same day in tbe clerk’s office of tbe superior court. The clerk numbered and docketed tbe case wherein Mulberin was propounder Mo. 48, and tbe case wherein Roulett was propounder bTo. 49. When the cases were-called in tbe superior court for assignment, they were both set for trial on tbe same day, Roulett protesting that tbe Mulberin case should not be assigned at all. Before tbe day of trial, Roulett moved to strike the Mulberin case from tbe assignment docket and to finally dismiss it, on tbe grounds, (1) that its hearing would be to supplant and displace a prior suit raising tbe same issues; (2) that its bearing would, in effect, be an attack indirectly and collaterally upon a prior judgment of tbe court of ordinary establishing a different and later will as tbe last will of said Margaret; (3) that its bearing would be to have two proceedings pending in tbe same court, at tbe same time, to try the same issue, and its effect might be that both wills, going before different juries, might be established as tbe last mil of said Margaret; (4) that tbe proper way for Mulberin to raise and determine tbe claim set up by him was by caveat to tbe probate of the instrument offered by Roulett, by contending that it was not tbe last will of the said Margaret; (5) that tbe hearing of Mulberin’s case would subject the county and tbe litigants to useless and unnecessary expense and delay, and would tend to confuse tbe issues and retard tbe orderly course of justice; and (6) that tbe only effect of its hearing would be to improperly and illegally introdrice before tbe jury tbe revoked, will, and thus seek to prejudice and confuse their judgment with irrelevant matters, the only proper issue to be submitted being whether the last will made was or was not the last will of said Margaret. This motion was overruled, and to this ruling Roulett excepted.

1. The sole question that we are to pass upon is, whether the court below erred in overruling the motion to strike Mulherin’s case from the assignment docket and finally dismiss it; all other questions, whether made in the proceedings begun by Roulett or those begun by Mulherin, being left for determination in the court below when the case comes on for trial. Rone of the grounds of the motion to dismiss the appeal in Mulherin’s case and the application filed therein were based upon defects appearing on the face of the proceedings in.that case; and as a motion to dismiss must necessarily be predicated upon defects appearing on the face of the pleadings, it follows that there was no error in overruling such motion. As the refusal to grant the motion to strike the case from the assignment docket did not involve any final disposition of the case, the assignment of error thereon cannot be considered by this court.

2. The question involved in the two cases is, which, if either, of the instruments presented for probate is the last will of Margaret Roulett. The trial of one case would not necessarily, determine the other, as a verdict in one for the caveat would not establish the instrument propounded in the other, and a verdict in Roulett’s case, finding that the paper offered by him was the last will of Margaret Roulett, would not be binding upon Mulherin, because he is not a party to Roulett’s proceeding. ¥e are, therefore, of the opinion, in view of the complications that might arise from separate trials and the facility with which the whole matter may be determined by consolidating the cases, that the trial judge might, in his discretion, pass an order directing that the two cases be consolidated and heard together, and in this manner have all the issues disposed of by a judgment binding and conclusive upon all the parties before the court. In such trial the person who filed the first application in the court of ordinary would he entitled to open and (conclude.

Judgment affirmed.

All the Justioes concurring.  