Cochran, J.,
delivered the opinion of this Court:
In disposing of this appeal we are called upon to decide ■whether the appellee had power to dismiss the issues in this case, and if so, \yhether her order to the clerk of the Court below, directing him to make that entry, was an effective exercise of that power.
These issues were made up and sent to the Superior Court, in pursuance of an order passed by the Orphans’ Court of Baltimore City, on the petition of the appellee, ■who had previously filed a caveat in that Court against the probate of the paper propounded by the appellant, as the last will and testament of Charcilla C. D. Owings, deceas•ed, by whieh order the appellee was made plaintiff and the appellant defendant. The case was subsequently removed from the Superior Court to the Circuit Court for Baltimore County.
The Act of 1798, ch. 101, sub-ch. 15, sec. 17, provides, that the Orphans’ Court shall direct an issue or issues to be made up and sent to a Court of law for trial, when either [363] party to any contest upon a plenary proceeding shall require; and sub-ch. 8 sec. 20, provides, that the Court of law, to which the issues may be sent, shall have power to direct the jury, and grant a new trial, as if the issue or issues were in a suit therein instituted, and that the finding of the jury, when certified by the Court, shall be admitted and taken by the Orphans’ Court as conclusive upon the disputed matter of the issues.
The evident purpose of these provisions, was to enable either of the parties to any contest, upon plenary proceedings, to control the action, of the Court, in reference to the matter in dispute, by the finding of a jury on issues so framed as to present the subject of the contest. The duty of the Orphans’ Court to make up and transmit issues to a Court of law, when required, is imperative, and it is also bound to accept the conclusions of the jury as final, and to make them effective by proper orders or decrees. Issues are made up, not for tbe purpose of aiding tbe Court in the exercise of its judicial functions, but to enable tbe party-demanding them to ascertain, through the medium of a jury, a state of case-which the Court is hound to adopt, and to which its subsequent action must conform. In view of the purpose contemplated by the provisions of the Act authorising this mode of proceeding, we may safely assume that the Orphans’ Court bad no official interest to be sub-served by a trial of these issues, and that their subsequent disposition was a matter in regard to which it had neither right of consultation nor control. It was said in argument, however, that the'appellee represented other parties in interest, who were entitled to protection by a trial of the-issues framed on her petition, and consequently that she had no right or power to dismiss them without trial. This proposition was presented, not as depending upon any community of interest or understanding that they were to he represented, but as a legal deduction from tbe fact that the transmission and pendency of these issues, operated to deprive them of the right of having issues to try the same [364] questions; and it assumes that the appellee, by thus acquiring the exclusive right to litigate the questions presented, became by implication the representative of- all parties having like interests depending on their trial. In our opinion this inference is not entirely correct. It is true that after these issues were transmitted, neither the Orphans’ Court, nor the Court to which the issues were sent, could authorise.the joinder of other parties with the appellee, and tliat, while the issues were pending in the Court below, no other, issues presenting the same questions could be granted; but it does not follow that the appellee was, in any legal sense, the representative of parties affected by these disabling conditions, or that she was bound to try the issues solely for their advantage. Even on the theory suggested, it was impossible for the presumptive representation of their interests to continue longer than the pending issues suspended their right to contest the same matter by other issues, and testing the appellee’s right to dismiss by inferences from that state -of case, the weight of reason would seem to be in favor of rather than against it. The dismissal or abandonmeñt of issues, of necessity, results in a return of the case to the Orphans’ Court, where, as a matter pf course, all persons interested in the controversy could become parties to the contest, without any restriction of the right to have like or other issues made up and transmitted; and in that view no person, whose rights were affected by the issues sent in this case, could reasonably object to or complain of their dismissal. We do not intend to say however that parties plaintiff would always have the right to dismiss issues without trial, for we do not deny the possibility of cases, where, from the nature of the facts, and relations of the contesting parties, it would be expedient to frame issues so that the parties plaintiff would, in, some sense, be made to represent the interests and rights of others. But under the circumstances shown here, and especially in consideration of the fact, that the appellee was the only person that appeared in the Orphans’ Court to, [365] contest tlie validity of tlie paper propounded for probate, and of the further facts, that the issues sent were framed upon the averments of her caveat and petition, and proceeded with at her own cost, we must conclude that she had an unquestionable right to withdraw from and abandon the contest, and consequently, that the dismissal of the issues was a matter that rested wholly in her discretion.
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Cochran, J.,
delivered the opinion of this Court:
In disposing of this appeal we are called upon to decide ■whether the appellee had power to dismiss the issues in this case, and if so, \yhether her order to the clerk of the Court below, directing him to make that entry, was an effective exercise of that power.
These issues were made up and sent to the Superior Court, in pursuance of an order passed by the Orphans’ Court of Baltimore City, on the petition of the appellee, ■who had previously filed a caveat in that Court against the probate of the paper propounded by the appellant, as the last will and testament of Charcilla C. D. Owings, deceas•ed, by whieh order the appellee was made plaintiff and the appellant defendant. The case was subsequently removed from the Superior Court to the Circuit Court for Baltimore County.
The Act of 1798, ch. 101, sub-ch. 15, sec. 17, provides, that the Orphans’ Court shall direct an issue or issues to be made up and sent to a Court of law for trial, when either [363] party to any contest upon a plenary proceeding shall require; and sub-ch. 8 sec. 20, provides, that the Court of law, to which the issues may be sent, shall have power to direct the jury, and grant a new trial, as if the issue or issues were in a suit therein instituted, and that the finding of the jury, when certified by the Court, shall be admitted and taken by the Orphans’ Court as conclusive upon the disputed matter of the issues.
The evident purpose of these provisions, was to enable either of the parties to any contest, upon plenary proceedings, to control the action, of the Court, in reference to the matter in dispute, by the finding of a jury on issues so framed as to present the subject of the contest. The duty of the Orphans’ Court to make up and transmit issues to a Court of law, when required, is imperative, and it is also bound to accept the conclusions of the jury as final, and to make them effective by proper orders or decrees. Issues are made up, not for tbe purpose of aiding tbe Court in the exercise of its judicial functions, but to enable tbe party-demanding them to ascertain, through the medium of a jury, a state of case-which the Court is hound to adopt, and to which its subsequent action must conform. In view of the purpose contemplated by the provisions of the Act authorising this mode of proceeding, we may safely assume that the Orphans’ Court bad no official interest to be sub-served by a trial of these issues, and that their subsequent disposition was a matter in regard to which it had neither right of consultation nor control. It was said in argument, however, that the'appellee represented other parties in interest, who were entitled to protection by a trial of the-issues framed on her petition, and consequently that she had no right or power to dismiss them without trial. This proposition was presented, not as depending upon any community of interest or understanding that they were to he represented, but as a legal deduction from tbe fact that the transmission and pendency of these issues, operated to deprive them of the right of having issues to try the same [364] questions; and it assumes that the appellee, by thus acquiring the exclusive right to litigate the questions presented, became by implication the representative of- all parties having like interests depending on their trial. In our opinion this inference is not entirely correct. It is true that after these issues were transmitted, neither the Orphans’ Court, nor the Court to which the issues were sent, could authorise.the joinder of other parties with the appellee, and tliat, while the issues were pending in the Court below, no other, issues presenting the same questions could be granted; but it does not follow that the appellee was, in any legal sense, the representative of parties affected by these disabling conditions, or that she was bound to try the issues solely for their advantage. Even on the theory suggested, it was impossible for the presumptive representation of their interests to continue longer than the pending issues suspended their right to contest the same matter by other issues, and testing the appellee’s right to dismiss by inferences from that state -of case, the weight of reason would seem to be in favor of rather than against it. The dismissal or abandonmeñt of issues, of necessity, results in a return of the case to the Orphans’ Court, where, as a matter pf course, all persons interested in the controversy could become parties to the contest, without any restriction of the right to have like or other issues made up and transmitted; and in that view no person, whose rights were affected by the issues sent in this case, could reasonably object to or complain of their dismissal. We do not intend to say however that parties plaintiff would always have the right to dismiss issues without trial, for we do not deny the possibility of cases, where, from the nature of the facts, and relations of the contesting parties, it would be expedient to frame issues so that the parties plaintiff would, in, some sense, be made to represent the interests and rights of others. But under the circumstances shown here, and especially in consideration of the fact, that the appellee was the only person that appeared in the Orphans’ Court to, [365] contest tlie validity of tlie paper propounded for probate, and of the further facts, that the issues sent were framed upon the averments of her caveat and petition, and proceeded with at her own cost, we must conclude that she had an unquestionable right to withdraw from and abandon the contest, and consequently, that the dismissal of the issues was a matter that rested wholly in her discretion.
The effort made in the argument of the case to show that her order to the clerk, to enter the case dismissed, was null and of no effect, did not satisfy us of that fact. In our opinion the question, as to the effect of such an order in a case like this, should be determined by the intention it expresses, rather than by analogies from rules regulating discontinuances in cases at law. The order in question shows beyond controversy, that the appellee intended thereby to abandon the contest, and place the case precisely as it was before she filed her caveat in the Orphans’ Court; and that wo think was its actual operation and effect. It cannot be said that she was not in Court, and for that reason not competent to direct the dismissal of the case, for she was there as well by the order of the Orphans’ Court transmitting the issues, as by the appearance entered for her by her attorneys, and as we have before said, with power to terminate the contest by directing the clerk to make an entry to that effect. But even according to the established practice of our Courts in law cases, the effective character of the order did not depend on filing it when the Court was actually in session. The rule on that subject, as stated in Evans’ Prac., 264, is, that a plaintiff may discontinue at any time by a written order to the clerk directing him to make that entry. Entertaining the opinion, that the proceedings on the issues were ended by the order to dismiss, and that the case was no longer within the jurisdiction of that Court, we reach the conclusion, that the Court had no power or authority to pass the subsequent order from which this appeal was taken. The fact that a period of more than two years was suffered to pass, after [366] tbe case was dismissed, before application was made for the order to strike out that' entry, is sufficient in itself to warrant the reversal of the order reinstating the case; but as we have determined the question on other grounds, that point need not be considered here.
(Decided May 13th, 1864.)
It follows from these views that the motion to dismiss the appeal must be overruled. It is true that the right of appeal in. the trial of issues is limited by the Code, Art. 5, sec. 5, to cases where exceptions are taken to the rulings of the Court; but this appeal does not fall within that provision. The order from which this appeal was taken, was passed by the Court after the case had gone from its jurisdiction, and for that reason was wholly unauthorised and without lawful warrant. Under these circumstances, the rule applied in the case of Webster vs. Cockey, 9 Gill, 93, must control us in disposing of the motion to dismiss.
Order reversed with costs to appellant.