In re the appeals of Newland & Daniels

By the Court, Paistb, J. The order of the circuit court dismissing the appeal from the county court, must be reversed. Such an order would have been proper if the appeal from the county court had not been properly perfected. But it was not dismissed for that reason. On the contrary, there was a hearing on the merits, and the judge gives as a reason for dismissing the appeal, the fact that he found no sufficient reason for reversing the order. If that was so, then the order should have been affirmed, and not the appeal dismissed. R. S., 184-9, chap. 85, § 84. The question has occurred to us, whether the appellant can be said to be aggrieved by this order, or whether he must be assumed to be in as good a position as he would have been in, if the order of the county court had been affirmed. If he were to let the matter rest there, it would be immaterial to him which order was made. But with respect to pursuing the litigation further, we think the order dismissing the appeal places him in a wrong position. Eor he can hardly be held required or even authorized to make a bill of exceptions, presenting the whole merits of the appeal, for the mere purpose of determining whether it should be dismissed. The merits were immaterial for that purpose. And if his appeal was properly perfected, he was entitled to the judgment of the circuit court, either affirming or reversing the order appealed from, in whole or in part, or making such other order as the county court ought to have made. Then he could have sustained his rights by further appeal on the merits, if he saw fit. The order is reversed, with costs, and the canse remanded for further proceedings. [492] Tlie same order is made in tlie appeal of Allen G. Daniels, from a similar order of tlie circuit court in tlie same estate.