dissenting.
This cause comes up on exception taken to the judgment or order of the presiding Judge in the Court below, appointing Malcolme D. Jones, guardian ad litem of Martha, the infant daughter of the testator, and ordering that the cause be remanded to the Court of Ordinary, and that the Court of Ordinary be directed to hear the application of the propound-er of the will, (a nuncupative will) and make such order in relation to said will as it may deem right according to law. Sim*472«on Wamock moved before the Ordinary to set up a nuncupative will of Everett Tindall, deceased; Green G. Watson caveated the application. The will was established and the caveator appealed. In the Superior Court a motion was made to dismiss the appeal, and the appeal was dismissed. No exception was taken to that decision. But the presiding Judge-pronounced the judgment or order above stated, which is assigned as error, and this Court unanimously reverse that judgment. But this Court send back their judgment oj reversal with instructions to the Court below, the amount of which is, that the cause shall be reheard before the Ordinary, and that a guardian ad litem shall be appointed for the infant. I cannot concur in the authority of this Court to give instructions, in such a cause, to the Court below. The only jurisdiction which the Superior Court had of the cause? was given to it, by the appeal which was entered from the decision of the Ordinary. That appeal was dismissed. The cause, after the dismissal, was no longer in the Superior Court, and that Court could no more pass an order in respect to it, than it could in any cause pending before the Ordinary. If the order had been passed prior to or simultaneously with the appeal, the effect would have been the same, for the dismissal of the appeal carried with it everything which had been done, and which could not have been authorized, but for the appeal.
The order is nugatory at any rate, in my judgment; for the effect of the dismissal of the appeal, was to leave the judgment of the Ordinary quite as operative and effective as if no appeal had been entered.
The power claimed for this Court to award such order and direction to the Court below, in the premises as may be consistent with the law and justice of the case, cannot, it seems to me, be exercised in this case. There must be a cause in that Court, on which the order and direction of this Court may operate. But there is no cause there. The appeal was dismissed. No error was assigned on the decision dismissing *473the appeal, and without it, this Court could not reverse the. judgment of dimissal; and that standing, the case cannot be in. the Superior Court.