Before the trial in the court below the defendant insisted that the county court of Tyrrell had no jurisdiction to take the *Page 307 probate, but that it should have been demanded in the Superior Court of Chowan, where the record of the former trial remained. His Honor, JudgeDonnell, reserved the point, but did not decide it, as the defendant obtained a verdict. The cause came here on the appeal of the plaintiff upon other points which it is unnecessary to notice. The demand of probate must be dismissed, for that it should have been made in Chowan Superior Court, as the court in which the will was established. It was the judgment of that court to which the case was regularly removed that established it, and not the judgment of the court in which it was first offered for probate; the judgment of the latter was vacated or annulled by the appeal. It would have been desirable to the Court that the parties should have agreed between themselves on some county for the trial of the matter in controversy, to prevent a further accumulation of costs, and we have accordingly advised it to them; but as they have not accommodated it, we are constrained reluctantly to render the above judgment.
Cited: Sawyer v. Dozier, 27 N.C. 97.