54 P. 152 | Or. | 1898
delivered the opinion of the court.
This appeal is from a decree 'of the Circuit Court of Moitoav County in the above-entitled matter, remanding the cause to the county court of said county for retrial therein. It appears that after the revocation of the letters issued to W. B. Cunningham, as administrator of said estate, the county court, on June 8, 1888, made and entered an order and. decree approving and settling his final account, and directed that he pay to the county clerk the funds of the estate remaining in his hands upon such settlement, amounting to $2,435.86. From the decree of final settlement there was an attempted appeal to the circuit court, and it seems a trial was had therein, the late Judge Bird presiding, but, OAving to his illness and consequent demise, no decree Avas rendered by him. Thereafter the matter was again brought on for hearing upon a motion by Cunningham for an order reversing
Subdivision 3, § 546, Hill’s Ann Laws, is relied upon as conferring the authority. It reads as follows : ‘ ‘ Upon an appeal to the circuit court, the manner of proceeding thereafter is the same as if the action or suit had been commenced in such court; but if the appeal be from a decree of the county court, the appellate court may give a final decree in the cause or matter, to be enforced as a decree of such court, or such decree as may be proper, and direct that the cause or matter be remitted to the court below for further proceedings in accordance therewith.” This section, however, must be construed in connection with section 902, which provides that the provisions of title IV, chapter VI, relating to appeals, are intended to apply to judgments and decrees of the county court in all cases, but not to its decisions given or made in the transaction of county business, and section 543, which provides that, upon an appeal from a decree given in any court, the suit shall be tried anew upon the tran
A trial de novo precludes the idea of a direction to the lower court to .retry the issues upon which it has once passed, and which stand for trial in the circuit court on the appeal, as the effect of such a proceeding would be to grant a new trial, which is subject matter for the court of original jurisdiction only. By intendment of subdivision 3, supra, the decree of the circuit court becomes final upon the matter in hand, which it may enforce through its own process, or direct that it be remitted to the county court, with directions to take such other action in the premises as may seem proper, but always in harmony with the decree of the circuit court. It does not contemplate an affirmance or reversal for errors that may appear of record, but a final adjudication touching the matter thus brought on for hearing, which may be enforced as a decree of that court, 'or, if remitted, controls the future proceedings of the county court.
The record fails to show whether the appeal from the county court was ever perfected or not. If it was never perfected, as a matter of course the circuit court had no
Reversed.