DISSENTING OPINION OF
HARTAMELE, J.The first ground of the motion to quash is that this court has “already decided the questions noAV sought to be revieAved”- and the second that the writ was not issued within six months from rendition of judgment, namely, January 29, 1903. The opinion of the court considers these grounds in the reverse order named in the motion.
I think that the motion cannot be granted on either of the grounds named. The judgment Avas not rendered in such form that a writ of error would lie to it until June 8, 1905. A judgment cannot be made ‘as of’ an earlier date than it was actually made for the .purpose of shortening the time in Avhich a Avrit of error can be taken out. Rubber Co. v. Goodyear, 6 Wall. 156. The only object of a nunc pro tunc judgment is “to see that the parties shall not suffer by the delay.” Mitchell v. Overman, 103 U. S. 65. It “should be granted or refused as justice may require in view of the circumstances of the particular case.” Ib.
All of the questions sought to be reviewed by the writ of error were not passed upon by the decision upon the exceptions. *461The rulings which were not passed upon were those made by the circuit court, after the allowance of the bill of exceptions, in denying the contestants’ motion to set aside the order of the circuit judge filed January 29, 1903, affirming the decree of Judge Little admitting the will to probate and granting the proponent’s motion that the clerk be ordered to sign the judgment in conformity with the order of the judge of January 28, 1903. The exceptions taken by the contestants, allowed and signed by the presiding judge June 8, 1905, are as follows:
“Contestants "except to the allowance of proponent’s motios. that the Clerk of Court be ordered to sign the form of judgment filed January 29th, 1903, and to the judgment so signed on the ground that such allowance is illegal, null and void and not justified by the law or evidence or record herein and to the judgment upon the ground that said judgment, is contrary to the law and evidence and weight of evidence and without authority of law and is illegal, null and void.”
Upon these exceptions there has been no ruling thus far by this court.
The right of the circuit court to affirm the decree of the circuit judge in probate appears to me to require serious consideration, and so of the proper form of judgment when issues of fact are tried by jury upon appeal froín a probate decree.
The right of appeal from a decree of a circuit judge at chambers to the circuit court is not expressly granted, although clearly recognized by statute. This is a result, it must be conceded, of defective legislation. Circuit courts formerly consisted of the judge of the circuit associated on the bench with a justice of the supreme court who presided at the term. At a later date the first circuit court was held by a justice of the supreme court, the office of the circuit judge of that circuit being abolished. By the Judiciary Act of 1892 the circuit courts were held by the circuit judges. .The jurisdiction of the supreme court being mainly appellate, and appeals lying to the supreme court from all decisions and decrees of the circuit judges at chambers “except in cases in which the appellant is entitled to appeal to a' jury,” and with the proviso that “in any case in which the law allows an appeal from the decision, judg*462ment, order or decree of a judge in chambers to be tried before a jury” the judge appealed from “shall not preside at the trial of such appeal before a jury,” but a circuit judge from some other circuit. Sec. 1859, R. L. The only cases in which the appellant Could have a jury trial were the probate cases enumerated in the act of 1864 (Sec. 1843, R. L.)/namely, in estates of over $500 and upon issues of fact upon which either the appellant or appellee should move the appellate court for a jury trial. Writs of error to the supreme court lay from any decision of a police justice, circuit judge or circuit court or any justice of the supreme court, which, after hearing the case, was authorized by statute “to give judgment either affirming or reversing or modifying the former judgment or remanding the cause for a-new trial.” Sec. 1159, Civ. Code, 1859. Under the act of 1892 (Sec. 1860, R. L.), in cases of appeals from decisions of a circuit judge, the supreme, court “shall have power to review, reverse, affirm, amend, modify or remand for a new hearing.” Sec. 1860, lb. In the various changes in the procedure made by the legislature the right of appeal from a circuit judge to the circuit court was not retained, although the statute concerning the trial of issues of fact by a jury upon an appeal being taken from a probate decree of a circuit judge to the circuit court was retained, applying in cases of estates of over $500 in value.
It is difficult to say that under the statute an appeal from a probate decree goes any further than the trial bv jury of specified issues of fact or tnat an appeal could be allowed at all except for the trial of sujh issues. I therefore think that in this case the circuit court had no authority by statute or under any implied power to pronounce a judgment affirming the decree of the circuit judge in probate admitting the will to probate. Power to affirm implies power to reverse. If the findings of the jury had been adverse to the appellant judgment would properly have been made wnich was applicable to those findings. If the judgment had been in favor of the contestants they could then move the circuit judge, on notice of it, to reverse his decree, and so upon a judgment in favor of the *463proponent he eonld move the circuit judge to affirm his decree. This seems to me to be the correct practice.
I therefore feel compelled to dissent from the decision of the court upon the motion to quash.