¶1This was a trial de novo, upon appeal from an order of the county court, refusing to admit to probate the alleged nuncupative will of the deceased; and upon the issue there made the jury found it “ to be her last will and testament.”
¶2A motion for a new trial was overruled, and judgment thereupon entered against the contestants for all the costs, from which one of them took this appeal.
¶3Upon the record brought here we cannot consider the questions argued as to the instructions given and refused, and the sufficiency of the evidence to support the finding, for the reason that the judgment entered does not involve them. It does not determine the validity or invalidity of the alleged will, or the claim of proponents to have it probated, nor reverse or affirm the order of the county court, but is for costs only. Costs are incidental to the determination of some other right or question, but here there is none.
¶4The 21st section of Chap. 33, of the Revised Statutes, provides that “ in all cases of appeal from the decision of a county court in matters of probate, the costs shall be in the discretion of the appellate court; ” but this implies that the subject-matter of the decision appealed from shall be disposed of.
¶5The judgment for costs only is inappropriate to the issue made and found, and therefore erroneous. Stephens on Pl. marg. p. 154.
¶6Reversed and remanded.