(dissenting). The majority opinion holds that where a county court denies a petition for the appointment of some suitable person as administrator of the estate of a decedent and the cause is appealed to the district court and there reversed, the district court is without power to make the appointment, but must remand the cause to the county court with directions. This I think is an erroneous rule.
Section 1412, O. S. 1931, provides that on appeal from the county court, the trial in the district court shall be de novo, and must be conducted as if the case had lawfully originated there.
In the case of Peters v. Holder, 40 Okla. 93, 136 P. 400, this court said:
“Trial de novo means retrial of the entire case anew as if no action had ever been instituted in the court below — -a second time”.
Certainly, if we follow this plain and unambiguous holding, then the issues in the district court are those raised by the pleadings and are not restricted to those passed .on by the judge of the county court.
“On a new trial in the appellate court all questions which legitimately arise on the record are open for consideration, and this is so whether or not they were urged or relied on in the lower courts.” 4 C. J. 728, sec. 2651.
The petition filed in the county court requested some suitable person be appointed administrator, and under the above authorities this became an issue on trial de novo in the district court. Thus the issues on trial de novo in the district court were twofold: (1) Shall an administrator be appointed? and (2) Who is a suitable person to be administrator?
The ease of Engle v. Yorks (S. D. 1895) 64 N. W. 133, construes section 5976, Dakota Statutes, which was adopted by Oklahoma in 1890, and is now section 1412, as authorizing the appellate court on appeal to appoint a gu'ardian, saying:
“It would hardly be conceivable that the case should be sent to the circuit court for ‘trial de novo’, with no power to pronounce judgment when it had determined the facts and their legal effects. * * *”
In the case of In re Copperfield’s Estate, 158 Okla. 40, 12 P. (2d) 490, the district court on appeal appointed Shedd administrator in place of Logan, who had been appointed by the county court. The case was appealed and affirmed by this court.
A careful reading of Secrest v. Secrest, 146 Okla. 235, 294 P. 91, and Parker v. Lewis, supra, discloses they do not fully support the majority holding. In both *264cases it was sought, on appeal, to enlarge the issues by changing the pleadings, and both cases hold, this cannot be done. That is a sound doctrine.
In re Copperfield’s Estate, supra, is to like effect and cites as authority Parker v. Lewis, yet it permitted the district court on appeal to appoint an administrator.
The majority holding is not only contrary to the above authorities, but it en-grafts upon our legal system an admittedly cumbersome and unnecessary step. It is the duty of the judiciary, where no violence will be done to established legal concepts, to so interpret the law that circuity of action will be avoided. Such a course, diligently pursued, will eliminate many of the delays, with their attendant expense, which now confront and confuse the litigant.
OSBORN, C. .T.. and CORN and HURST, JJ., concur.